On 9 April 2024, the Chamber of Deputies, acting as the decision-making body, adopted the legislative proposal to amend Article 30 of Law No. 51/1995 on the organization and practice of the profession of attorney-at-law and Article 451 of Law No. 134/2010 on the Civil Procedure Code (the ”Adopted Proposal”), following its earlier adoption by the Senate on 12 December 2023.
For clarity, it should be noted that the Adopted Proposal was first registered with the Senate under no. L690/2023 and later with the Chamber of Deputies under no. PLX 788/2023.
Essentially, once promulgated by the President of Romania and published in the Official Gazette, the Adopted Proposal will substantially reduce the procedural possibility for courts to decrease the amounts representing attorney fees that the losing party may be required to pay to the winning party in a litigation.
Currently, according to the form of Article 451 paragraph (2) of the Civil Procedure Code that precedes the implementation of the Adopted Proposal, the court may, at the time of resolving a case, and even ex officio, reduce the part of the legal costs representing the attorney’s fees that the winning party in a litigation may recover from the losing party.
This measure can be taken by the court when the amount of attorney’s fees is clearly disproportionate in relation to the value or complexity of the case or to the attorney’s efforts, with the court also considering the circumstances of the case.
However, with the implementation of the Adopted Proposal, the limits of this possibility for the courts will be considerably restricted, in the following respects:
- a relative legal presumption of proportionality between the fee agreed between the attorney and the client and the value or complexity of the case, or the attorney’s efforts in the case, will be established;
- the reduction of the part of legal costs representing attorney’s fees can no longer be ordered by the court ex officio, but only at the request of the interested party;
- the measure of reducing such costs can be challenged along with the merits of the case and, in the particular case of court decisions appealable with second appeal, as well as of final decisions, a reexamination can be requested (in which case the request will be decided by a different panel of the same court);
- the reasoning for reducing costs must be made by the court with reference to the criteria provided by the legislation of the legal profession for setting fees.
Currently, the statutory criteria for setting attorney’s fees are those set out in Article 127 paragraph (3) of the Statute of the profession of attorney-at-law adopted in 2011:
- the time and volume of work required to carry out the project or the activity requested by the client;
- the nature, novelty and difficulty of the case;
- the importance of the interests at stake;
- the circumstance that accepting the project proposed by the client prevents the attorney from accepting another project from a different person, if this circumstance can be observed by the client without further investigations;
- the notoriety, titles, seniority in work, experience, reputation and specialization of the attorney;
- the collaboration with experts or other specialists, required by the nature, subject, complexity and difficulty of the case;
- the advantages and results obtained for the client’s profit as a result of the attorney’s work;
- the financial situation of the client;
- the time constraints within which the attorney is required by the circumstances of the case to act to ensure efficient legal services.
With the implementation of the Adopted Proposal, an improvement in the right to defense in Romania is anticipated, as it will decrease the likelihood that a client who / which wins a case will not be able to recover the full fee paid to his / her / its attorney from the defeated opposing party.
Moreover, the Adopted Proposal reaffirms both the exceptionally nature of the analyzed diminution and the entrepreneurial nature of the profession of attorney-at-law.
