Rp: Created page with “{{COURTdecisionBOX |Jurisdiction=Poland |Court-BG-Color= |Courtlogo=Courts_logo1.png |Court_Abbrevation=SN |Court_Original_Name=Sąd Najwyższy |Court_English_Name=Supreme Court of Poland |Court_With_Country=SN (Poland) |Case_Number_Name=I NO 14/23 |ECLI= |Original_Source_Name_1=SN |Original_Source_Link_1=https://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/i%20no%2014-23.docx.html |Original_Source_Language_1=Polish |Original_Source_Language__Code_1=PL |Original_Source…”
|Jurisdiction=Poland
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=SN
|Court_Original_Name=Sąd Najwyższy
|Court_English_Name=Supreme Court of Poland
|Court_With_Country=SN (Poland)
|Case_Number_Name=I NO 14/23
|ECLI=
|Original_Source_Name_1=SN
|Original_Source_Link_1=https://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/i%20no%2014-23.docx.html
|Original_Source_Language_1=Polish
|Original_Source_Language__Code_1=PL
|Original_Source_Name_2=
|Original_Source_Link_2=
|Original_Source_Language_2=
|Original_Source_Language__Code_2=
|Date_Decided=
|Date_Published=
|Year=
|GDPR_Article_1=Article 6(1)(c) GDPR
|GDPR_Article_Link_1=Article 6 GDPR#1c
|GDPR_Article_2=
|GDPR_Article_Link_2=
|GDPR_Article_3=
|GDPR_Article_Link_3=
|EU_Law_Name_1=
|EU_Law_Link_1=
|EU_Law_Name_2=
|EU_Law_Link_2=
|National_Law_Name_1=
|National_Law_Link_1=
|National_Law_Name_2=
|National_Law_Link_2=
|Party_Name_1=
|Party_Link_1=
|Party_Name_2=
|Party_Link_2=
|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
|Appeal_From_Status=
|Appeal_From_Link=
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=Not appealed
|Appeal_To_Link=
|Initial_Contributor=RP
|
}}
The Supreme Court of Poland upheld rules requiring legal counsels to keep client data confidential and maintain a client register. The Court held processing was lawful under [[Article 6 GDPR#1c|Article 6(1)(c) GDPR]] to meet legal obligations.
== English Summary ==
=== Facts ===
In December 2022, the National Council of Legal Counsels (Poland) adopted regulations on the practice of legal counsels. The Minister of Justice challenged parts of the regulations, particularly § 5 and § 6. § 5 required persons cooperating with legal counsels to keep information confidential. § 6 required legal counsels to maintain a client register to identify conflicts of interest. The Minister argued that these rules violated the [[Article 6 GDPR|Article 6]] because they did not provide a legal basis for processing client data. The Minister also said the rules conflicted with the system of free legal aid, which protects the anonymity of clients, and could reduce public trust in the free legal aid system. The Minister claimed the rules imposed unnecessary obligations on legal counsels.
The National Council of Legal Counsels argued that clients of free legal aid are treated like any other client. Legal counsels already have duties of confidentiality and conflict-of-interest checks under law. The client register only gave a method for fulfilling these duties. The Council said processing client data was lawful under [[Article 6 GDPR#1c|Article 6(1)(c) GDPR]] because it was necessary to comply with a legal obligation. Free legal aid is not truly anonymous to legal counsels, so the confidentiality rules did not affect the system.
=== Holding ===
The Supreme Court of Poland rejected the Minister’s challenge and upheld the regulations. The Court held that § 6 did not create a new data-processing obligation. It only specified how legal counsels could meet their existing duty to avoid conflicts of interest. The Court confirmed that processing client data under § 6 was lawful under [[Article 6 GDPR#1c|Article 6(1)(c) GDPR]] as necessary to comply with a legal obligation. The Court ruled that clients receiving free legal aid should be treated the same as other clients in terms of confidentiality and conflict-of-interest checks. The Court also held that § 5 confidentiality rules were appropriate and did not apply to public coordinators who are not directly involved in legal assistance. The Supreme Court maintained the regulations in full.
== Comment ==
”Share your comments here!”
== Further Resources ==
”Share blogs or news articles here!”
== English Machine Translation of the Decision ==
The decision below is a machine translation of the Polish original. Please refer to the Polish original for more details.
<pre>
JUDGMENT IN THE BEHALF OF THE REPUBLIC OF POLAND On 26 October 2023, the Supreme Court, composed of: Supreme Court Judge Maria Szczepaniec (president, rapporteur) Supreme Court Judge Janusz Niczyporuk Supreme Court Judge Paweł Wojciechowski in the case of the complaint of the Minister of Justice against resolution No. […] of the National Council of Legal Advisers dated 3 December 2022 on the Regulations on the practice of the profession of legal adviser, after considering the case at a closed session in the Extraordinary Control and Public Affairs Chamber on 26 October 2023, upholds the appealed resolution. JUSTIFICATION On 3 December 2022, the National Council of Legal Advisers (hereinafter also referred to as the “Council”) adopted resolution No. […] in which it adopted the Regulations on the practice of the profession of legal adviser (hereinafter also referred to as the Regulations) in the wording constituting an annex to the resolution. As a result of the negative opinion of the Minister of Justice, by Resolution No. […] of 24 February 2023, the Council amended the Regulations, taking into account the comments regarding § 19 and § 26. The Minister of Justice continues to question the provisions of § 5 and § 6. Pursuant to § 5 of the Annex, access to information constituting professional secrecy should be limited to persons providing legal assistance or persons cooperating with a legal advisor in providing such assistance. Before allowing persons cooperating with a legal advisor to perform activities related to the provision of legal assistance, a legal advisor should obtain a written commitment, and in specific cases in documentary form, to observe the obligation of confidentiality of all information they have learned in connection with the performance of these activities, unless they are subject to a confidentiality obligation under the law to the extent corresponding to the professional secrecy of a legal advisor. The declaration of commitment may be submitted using the template attached to the regulations. Pursuant to § 6, a legal advisor is obliged to maintain a client register for the purposes of investigating conflicts of interest – it may be shared with the persons with whom they practice their profession. The above resolution was adopted despite the negative opinion of the Ministry of Justice. By letter dated October 19, 2022, Ref. No. […], the National Council of Legal Advisors sent a draft resolution on the regulations for the practice of the profession of legal advisor to the Ministry of Justice, and then by letter dated November 29, 2022, Ref. No. DZP-III. […], critical comments on the draft were submitted. The National Council of Legal Advisors did not take the comments into account but responded to them in letter dated January 4, 2023, Ref. No. […] after the adoption of the contested resolution. In the opinion of the Minister of Justice, resolution No. […] of 3 December 2022 of the National Council of Legal Advisers on the regulations for the practice of the profession of legal adviser should be repealed because § 1 thereof in connection with § 5 and § 6 of the annex to this resolution is contrary to the law, in particular to Art. 6 paragraph 1 of Regulation (EU) of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (hereinafter also referred to as: GDPR) due to the lack of a legal basis for the processing of data of clients of free legal assistance and Art. 41 point 5a of the Act on Legal Advisers by undermining the legal obligation of the professional self-government of legal advisers and its members to cooperate in the implementation of tasks arising from the Act of 15 August 2015 on free legal assistance, free citizen counseling and legal education (Journal of Laws of 2021, item 945, hereinafter also referred to as the Act on Free Legal Aid, p.n.n.p.). In the justification, the Minister of Justice additionally stated that the Regulations in the form of an act of internal law are inconsistent with the statutory norm expressed in the Act on Free Legal Aid – Art. 7 sec. 1 in fine of the Act on Free Assistance. The Minister of Justice requested the annulment of Resolution No. […] of December 3, 2022, of the National Council of Legal Advisers, in part, as unlawful in terms of § 5 and § 6 of the annex to this resolution. The justification indicated that the institution of the client register in its adopted form is inconsistent with the provisions of the law not only with respect to beneficiaries of the free assistance system, but also to law firm clients. According to the Minister of Justice, the institution in question raises a number of problems under personal data protection law. The Minister of Justice initially assumed that the legal basis for including personal data in the client register would be the consent of the data subject. It was acknowledged that the draft Regulations did not explicitly regulate the premise legalizing the processing of personal data in the client register. Referring to consent as the legal basis for processing the personal data of clients using free assistance, the Minister of Justice questioned whether this was inconsistent with the idea of the free assistance system, i.e., the anonymity of beneficiaries. He explained that information about who benefited from state support, what problem they encountered, and what advice they received is not stored anywhere. The content of the problems addressed by beneficiaries is stored in the IT system after being anonymized. Beneficiaries’ declarations of inability to pay for legal assistance are stored separately. This form of statutory solution is related to the need to gain and maintain the trust of citizens and other residents of Poland in the free assistance system. It was pointed out that the legislator left no room for the creation of additional registers of individuals using assistance. In the Minister’s opinion, the content of § 6 of the Regulations, which provides for the creation of a client register, is inconsistent with the structure of the free assistance system and even threatens it in terms of building public trust, insofar as it does not create an exception for clients of the free assistance system. Requiring beneficiaries of the system to consent to the processing of their personal data by entering it into a client register accessible to all individuals collaborating with the legal counselor within their firm will effectively deter many individuals interested in seeking advice from using it and may even lead to a reduction in the number of consultations provided under the free legal aid system. It was pointed out that the introduction of such regulations, which require the signature of appropriate data protection clauses, is not provided for in either the Regulations or the Free Legal Aid Act. By adopting the Regulations, the Chamber encroached on a matter already regulated by the legislature, i.e., the formalities for applying for free legal aid (Article 4, Section 2 of the Free Legal Aid Act). Therefore, in the opinion of the Minister of Justice, the content of the Regulations is inconsistent with statutory provisions. It was emphasized that the Regulations do not specify the content of the Register, which means there is a risk that it may contain not only client data but also a description of their legal problem, including their personal situation. The Minister of Justice also expressed reservations about the fact that the client register may be shared, and therefore accessible to all individuals with whom the legal advisor practices, for example, in a partnership. It was argued that there is no justification for why a legal advisor’s colleagues in a private law firm should have access to information about matters handled outside the firm, within the framework of the free legal aid system. Obtaining additional consent from the beneficiary to process personal data in the client register of a law firm whose services they do not use is incompatible with the effective functioning of the free legal aid system in Poland. Legal advisors provide services within their own law firm, often with multiple employees, and within a free legal aid point. The Minister of Justice emphasized that these are two separate activities, within different institutions, and there is no justification for a register maintained within one institution to contain detailed personal data of clients of another institution. In the context of processing clients’ personal data with their consent, the Minister of Justice questions the lack of exclusion from the scope of this provision of assistance under the free legal aid system and free citizens’ counseling and deems it necessary to clearly define in the Regulations the content recorded in the register. Analyzing legal bases other than consent legalizing the processing of personal data entered in the register, the Minister of Justice indicated that Article 6 paragraph 1 letters b), d) or e) of the GDPR are not an adequate basis. Referring to the premise indicated in Article 6 paragraph 1 letter b) of the GDPR, he argued that recording client data in the client register is not necessary for the performance of the contract concluded with them, as legal counsels for 40 years, and attorneys for 100 years, have been able to perform contracts with clients without maintaining a client register. Within the scope of Article 6 paragraph 1 letter b), Article 6(1)(d) of the GDPR explained that providing legal assistance is certainly in the client’s interest, but it can hardly be classified as a vital interest, as it is not a service of the same rank as combating a humanitarian crisis, epidemic, disaster, or threat to life or health. However, with respect to Article 6(1)(e) of the GDPR, the Court stated that maintaining a client register cannot be deemed necessary to fulfill the legal obligation incumbent on the controller, as maintaining a register cannot be deemed necessary for conducting legal counsel’s activities, since for the last 100 years, legal assistance has been provided without maintaining such registers. Furthermore, the legal basis for such processing is not specified in European Union law or the law of Poland (a Member State). Referring to the second challenged provision of the Regulations, the Minister of Justice raises concerns about the content of § 5, which allows for an interpretation of this provision inconsistent with the Minister of Justice’s assessment.In the opinion of the Minister of Justice, the mere anonymization of documents guarantees professional secrecy within the free legal aid system. This means that sharing, storing, and processing statistical data regarding beneficiaries, information about the case without specifying the client’s specific personal data or other data enabling their easy identification does not constitute a breach of professional secrecy. The Minister of Justice is concerned about an interpretation of § 5 that would lead to the conclusion that the Regulations prohibit the completion of assistance cards for the free legal aid and free citizen counseling system, or even the collection of statistical data. The Minister of Justice takes the position that providing assistance is anonymous, therefore it does not pose a risk of breaching professional secrecy, and consequently, the content of the assistance card is not covered by professional secrecy. However, the Minister of Justice is aware of cases of legal counselors who do not share this position, which may result in unjustified claims regarding the submission of professional secrecy declarations from individuals cooperating with legal counselors on organizational matters within the free legal aid system. Pursuant to the provision of the Regulations, legal counselors are to be required to receive written commitments to maintain the confidentiality of any information they learn in connection with the performance of the above-mentioned activities. According to the Minister of Justice, the regulations contained in § 5 of the Regulations may be used to request declarations (documents) not provided for by any statute within the free legal aid system, at least from the district coordinator and the coordinator of the organization as “individuals cooperating with the legal counselor in providing legal aid.” It was argued that this is another example of a regulation of domestic law that conflicts with statutory provisions. The Minister of Justice takes the position that the above provisions of the Regulations cannot be reconciled with the proper functioning of the free legal aid system as defined by law. Pointing to the above allegations, the Minister of Justice requested the partial repeal of Resolution No. […] of the National Council of Legal Advisers dated December 3, 2022 on the Regulations on the practice of the profession of legal adviser together with the Regulations on the practice of the profession of legal adviser. In response to the complaint (letter dated April 28, 2023), the National Council of Legal Advisers requested that the complaint of the Minister of Justice dated March 29, 2023 against resolution No. […] of the National Council of Legal Advisers dated December 3, 2022 on the Regulations on the practice of the profession of legal adviser be dismissed in its entirety and that this resolution be upheld and that the case be considered at a hearing. The basis for the above motion is the lack of inconsistency of the norms contained in the aforementioned resolution with the provisions of the law indicated in the complaint, i.e. Article 6 paragraph 1 of the GDPR and Article 41 point 5a of the Act of 6 July 1982 on legal advisers (hereinafter also referred to as the AAR). In the justification of the response to the complaint, the National Council of Legal Advisers argued that there is no contradiction between the norms arising from § 5 and § 6 of the Regulations and Art. 6 paragraph 1 of the GDPR and Art. 41 point 5a of the AAR. The National Council of Legal Advisers explained that a contradiction between the norms may cover many situations, but in its basic meaning it consists in the fact that one norm prohibits behavior that is required or permitted by another norm. According to the Council, the complaint did not demonstrate the existence of a contradiction between the aforementioned standards, and the arguments presented therein largely boil down to issues related to the interpretation and application of § 5 and § 6 of the Regulations on the provision of legal assistance by legal advisors under the Act on Free Legal Assistance. According to the National Council of Legal Advisors, the allegations raised by the Minister of Justice are based on the assessment, incorrectly expressed in the complaint, that the provision of free legal assistance is anonymous, and therefore does not involve the possibility of a conflict of interest or the risk of breaching professional secrecy, in particular in connection with the processing of personal data of its beneficiaries. Consequently, according to the Council, the Complainant assumed that ensuring the anonymity of aid beneficiaries and the anonymization of their data in the content of the assistance card prepared by the legal advisor means that information about their cases and the assistance provided is not covered by professional secrecy, and therefore, correctly completing the assistance card cannot constitute disclosure of this secret. The National Council of Legal Advisors indicated that from the perspective of a legal advisor, a beneficiary of free legal assistance is the same client as any other. The relationship with the legal advisor must be based on personal contact, trust, confidentiality, and avoidance of conflicts of interest. The relationship between the client (the authorized person) and the legal advisor is not, and under no circumstances can be, anonymous. It is noted that the legal advisor obtains the beneficiary’s personal data in the course of providing assistance (e.g., for the purpose of preparing a draft letter or conducting mediation – Art. 3 sec. 1 and Art. 4a of the Act on the Protection of Personal Data). They also have this data after the case is concluded in the form of case documentation submitted by the authorized person and regarding the assistance provided, and they are not obligated to forward it to the staroste (Art. 7 sec. 4 of the Act on the Protection of Personal Data). This documentation contains personal data, as only the legal advisor’s decision to include it in the assistance card imposes the obligation to delete it (Art. 7 sec. 4 of the Act on the Protection of Personal Data). Therefore, contrary to the Complainant’s claims, according to the Council, free legal assistance is not provided anonymously, and its provision is associated with the obligations imposed on legal counsel. The National Council of Legal Counsels explained that when providing legal assistance, a legal counsel is obliged to practice his profession in accordance with the law and the rules of professional ethics (Article 3, paragraph 2 of the ALA), in particular to: 1) avoid conflicts of interest (Article 15 of the ALA and Articles 26-30a of the Code of Ethics for Legal Counsel constituting an annex to Resolution No. 3/2014 of the Extraordinary National Congress of Legal Counsels of November 22, 2014 (consolidated text – Resolution No. 884/2023 of the Presidium of the National Council of Legal Counsels of February 7, 2023 on the announcement of the consolidated text of the Code of Ethics for Legal Counsels, hereinafter also referred to as the KERP) and § 6-7 of the Regulations), 2) maintaining professional secrecy and securing it against unauthorized access (art. 3 sec. 3-5 of the Act on Professional Conduct and art. 15-24 of the KERP and § 3-5 of the Regulations). A legal advisor is also obliged to keep confidential everything he has learned in connection with the provision of legal assistance (art. 3 sec. 3 of the Act on Professional Conduct, art. 3 sec. 2 of the Act on Professional Conduct in connection with art. 15 et seq. of the KERP). No provision of the Act on Professional Conduct, the Act on Professional Conduct or another act does not exclude information obtained in connection with the provision of free legal assistance from the scope of professional secrecy. The Council pointed out the need to distinguish between ensuring the anonymity of the beneficiary of free legal assistance “outside”, i.e. in relation to other entities operating within the free legal assistance system, and the relationship between a legal advisor and a client, who is undoubtedly the beneficiary of free legal assistance, to whom the legal advisor provides this legal assistance in accordance with the Act on Legal Advisors and the principles of ethics. It was clearly indicated that legal assistance in free legal assistance points is not provided by a legal advisor anonymously. In the further part of the justification, the Council distinguished entities that are the controllers of personal data processed as part of the legal assistance provided. Thus, it was indicated that the Act on Free Legal Aid expressly indicates only who is the controller of the data contained in the declaration referred to in Art. 4, sec. 2 of the Free Legal Aid Council, personal data processed in the ICT system operated by the Minister of Justice and recommended persons/members of the Free Legal Aid Council, and therefore does not apply at all to personal data processed by a legal advisor in connection with the provision of legal assistance. According to the Council, the controller of personal data processed as part of the provision of free legal assistance by a legal advisor is the legal advisor, while the basis for the processing of these personal data is Art. 6 sec. 1 letter c of the GDPR, because their processing is necessary to fulfill the legal obligation incumbent on the controller, i.e. checking for a conflict of interest and, if such a conflict is detected, refusing to provide legal assistance, which obligation results from Art. 15 of the Free Legal Aid Council and Art. 30a of the Free Legal Aid Council in conjunction with Art. 22 of the Free Legal Aid Council and Art. 5 sec. 3 of the Free Legal Aid Council. It was noted that the premise for legalizing data processing (apart from specific categories) may be not only a statutory provision, but also implementing provisions, if they were issued on the basis and within the scope of a statutory delegation. Recital 45 of the GDPR preamble was cited, which indicates that “the regulation does not require that there be a detailed legal regulation for each individual processing. It may be sufficient that a given legal regulation forms the basis for various processing operations resulting from a legal obligation to which the controller is subject.” Pursuant to art. 57 point 7 and art. 60 point 8 letter f) of the Act on Personal Data Protection, the competent bodies of the legal counselors’ self-government have the right to adopt rules of professional ethics and regulations for practicing the profession. The provisions of the Code of Ethics of Legal Counsels and the Regulations for practicing the profession of legal counsels are incorporated into the order defined by law pursuant to art. 64 paragraph 1 of the Act on Personal Data Protection, as their violation constitutes the basis for disciplinary liability. Additionally, it was indicated that the basis for the processing of personal data by a legal advisor providing free legal assistance may also be the premise of so-called legitimate interests, i.e. in the case of legal advisors providing free legal assistance – defense against potential claims. Art. 6 sec.Article 1 letter f of the GDPR states that processing is lawful when it is necessary for the purposes of the legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject, which require the protection of personal data, in particular when the data subject is a child. According to the Council, in order to be able to comply with the obligation to avoid conflicts of interest, legal counsel must be equipped with tools that enable them to do so. To this end, the Regulations adopted on 3 December 2022, in § 6 paragraph 1, provide for the obligation to maintain a client register for the purposes of investigating conflicts of interest, without specifying its content. Therefore, this institution does not create a new obligation that would result in the processing of clients’ personal data to a different extent than before, but rather aims to implement the obligation to avoid conflicts of interest. The Council takes the view that the allegation of violation of Article 41 item 5a of the Act on Personal Data Protection is also unfounded and, moreover, incomprehensible. by undermining the legal obligation of the professional self-government of legal advisers and its members to cooperate in the implementation of tasks arising from the Act on Legal Advisers, the Minister of Justice did not justify in any way how the inclusion in the provisions of the Regulations of the requirement to maintain a client register, which is intended to enable legal advisers to fulfill their statutory obligations that serve the interests of clients, including beneficiaries of the free legal aid system, would undermine the aforementioned obligation to cooperate. It was emphasized that the claims presented in the justification of the complaint are unfounded, that the creation of a client register “does not fit into the structure of the free legal aid system, and even threatens it in terms of building public trust to the extent that it does not create an exception for clients of the free legal aid system.” On the contrary, taking actions by legal advisers aimed at ensuring the provision of legal assistance is reliable and compliant with the law and principles of ethics, helps build public trust. Furthermore, according to the Council, contrary to the complaint’s claims, beneficiaries of the free legal aid system are not required to consent to the processing of personal data “by entering them in a register,” because their personal data are not processed by a legal advisor providing legal assistance under Article 6 paragraph 1 letter a) of the GDPR, i.e., the consent of the data subject (client), but, as indicated above, under Article 6 paragraph 1 letter c), i.e., compliance with a legal obligation incumbent on the controller. With respect to the issue of maintaining a single client register in the event that a legal advisor practices with other individuals, the Council argued that this is a possibility, not an obligation. This applies to situations where legal advisors provide legal assistance, for example, in the form of a company referred to in Article 8 paragraph 1 of the Act on Legal Counseling. This possibility will therefore only exist if the agreement for the provision of free legal assistance was concluded with a company referred to in Article 8 of the Act on Legal Counseling, and not individually with a legal advisor. In such a case, it is incorrect to claim that legal assistance is provided “outside the law firm” and that these are “two separate activities, within different institutions”. However, in the case of concluding an agreement directly with a legal counsel, the problem of a common register will not arise at all. Referring to the allegation of illegality of § 5 of the Regulations, the Council pointed out that from the content of the justification of the complaint (especially from the point concerning professional secrecy and referring to § 5 of the Regulations – pp. 10-12) it is impossible to deduce which specific provisions of law and which acts and how they were violated by § 5 of the Regulations. When building arguments to justify the allegations, the complainant does not refer to the provisions of Art. 6 sec. 1 of the GDPR and Art. 41 item 4a of the Act on Legal Counsel, indicating how specifically § 5 of the Regulations violates them, but is in fact engaged in an interpretative dispute concerning the interpretation of § 5 of the Regulations. Referring to the position expressed by the Minister of Justice in the complaint that coordinators of the free legal aid system and reviewers of citizens’ advice may be, under § 5 of the Regulations, “persons cooperating in the provision of legal aid” (particularly organizationally), the Council believes this is incorrect. It was argued that a legal advisor’s obligation is only to personally provide legal assistance within the scope of the activities specified in Art. 3 and Art. 4a of the Act on Legal Aid, and therefore they may not engage other persons to cooperate in this regard (Art. 5 sec. 1 of the Act on Legal Aid). It was explained that regardless of this, coordinators and reviewers perform their duties (including organizational ones) not for the legal advisor, but for the district providing free legal aid as a commissioned public task. Therefore, they remain in a legal relationship with the district to which they are obligated to provide the service. Their activities are related to the implementation by local government units of a public task within the scope that burdens these units (e.g., handling and registering notifications, organizing meetings, providing information, operating the ICT system – see art. 8 and art. 12 of the Act on Legal Advisers), and do not involve cooperation with legal advisors providing assistance. Therefore, they do not cooperate with a legal advisor or on behalf of the provision of legal assistance within the framework of a legal or factual relationship (they operate in the sphere of public administration, not in the practice of the legal advisor’s profession). Their activities occur before and after the provision of assistance, and therefore do not constitute cooperation in its provision itself. Taking the above into account, a legal advisor is not obliged to receive from the coordinator or reviewer an obligation to maintain the confidentiality of information covered by professional secrecy, as they are not persons cooperating in the provision of legal assistance within the meaning of § 5 of the Regulations. The Council takes the position that the provision of art. 41 item 5a of the Act on Legal Advisers contains a list of tasks of the legal counselors’ self-government. These tasks include cooperation between the legal counselors’ self-government and local government units in ensuring the provision of free legal assistance. The subject and scope of this cooperation are detailed in Art. 10 of the Law on Legal Advisers’ Act. It consists of the annual conclusion of agreements on the provision of free legal assistance within a given district, the content of which is detailed in the Act (and in the event of failure to conclude such agreements – specifying the procedure for appointing legal counselors providing assistance), and designating legal counselors providing assistance. In the Council’s opinion, cooperation applies to the legal counselors’ self-government, not individual legal counselors, and cannot be construed as a basis for imposing additional obligations on them. Therefore, the provision of § 5 of the Regulations in no way violates Art. 41 point 5a of the Act on Legal Advisers, because it is addressed to legal advisors, not to professional self-government, and concerns a regulatory matter other than legal advisor’s cooperation with other persons in providing legal assistance. In a letter dated June 6, 2023, the Minister of Justice referred to the response of the National Chamber of Legal Advisers to the complaint against resolution No. 124/XI/2022 dated December 3, 2022, regarding the regulations for the practice of the profession of legal advisor, upholding the complaint and the arguments presented in its justification. Additionally, it was argued that maintaining a client register is a disproportionate measure to achieving the objective of detecting the risk of a conflict of interest. The Supreme Court considered the following: The complaint did not merit consideration. Pursuant to Article 47 paragraph 2 of the Act on Legal Advisers, the Minister of Justice requests the Supreme Court to annul unlawful resolutions of self-government bodies within 3 months from the date of their service. If the appealed resolution flagrantly violates the law, this deadline is six months. The court either upholds the appealed resolution or repeals it and remands the case to the appropriate self-government body for reconsideration, establishing guidelines as to how the matter should be resolved. According to established Supreme Court case law, resolutions of professional self-government bodies are unlawful if their content is inconsistent with statutory norms, exceeds the authority’s powers, or produces effects incompatible with the rule of law (Supreme Court judgment of 8 May 2013, III ZS 5/13). The illegality of a resolution is not limited to the provisions of generally applicable law (acts and implementing regulations, Supreme Court judgment of 13 May 2010, III ZS 7/10). It also covers cases of inconsistency of a resolution with other internal resolutions of professional self-government bodies (judgment of the Supreme Court of 19 September 2012, III ZS 8/12, OSNP 2013, No. 17–18, item 217). In the opinion of the Minister of Justice, resolution No. […] of 3 December 2022 of the National Council of Legal Advisers on the regulations for the practice of the profession of legal adviser should be repealed because its § 1 in connection with § 5 and § 6 of the annex to this resolution is contrary to the law, in particular to Art. 6 sec. 1 of the GDPR due to the lack of a legal basis for the processing of data of clients of free legal assistance and Art. 41 item 5a of the Act on legal advisers by undermining the legal obligation of the professional self-government of legal advisers and its members to cooperate in the implementation of tasks arising from the Act of 15 August 2015 on Free legal aid, free citizen counseling, and legal education. It should be noted here that the Supreme Court does not share the Minister of Justice’s argument that seeks to differentiate the legal situation of clients depending on whether the legal assistance was provided as part of a free legal aid program or within a law firm run by a legal advisor. The Minister of Justice should ensure that the standards of service and guarantees provided to clients served under free legal aid programs do not differ from the standards of service provided to law firm clients.This lack of distinction in the guarantees available to clients based on whether the legal advice provided was financed from state or private funds will help build public confidence in the free legal aid system. Furthermore, when examining a conflict of interest, whether the client received legal assistance through a free legal aid program or at a law firm is irrelevant, and the claim that these are two separate activities of a legal advisor contradicts the idea behind the prohibition on performing professional activities in a conflict of interest situation. The essence of the dispute in this case boils down to resolving whether § 6 of the Regulations, which stipulates the obligation for legal advisors to maintain a client register for the purposes of investigating conflicts of interest, entails a new obligation to process clients’ personal data, which requires the indication of a separate legal basis legalizing the processing of personal data. According to the Supreme Court, § 6 of the Regulations does not impose a new obligation on legal advisors that requires the processing of clients’ personal data. The obligation for legal advisors to exclude themselves from performing professional activities in a conflict of interest situation arises from a statutory provision, i.e., Article 15 of the Act on Legal Advisers. Before the adoption of Resolution No. 124/XI/2022 of 3 December 2022 of the National Council of Legal Advisers on the regulations for the practice of the legal counsel profession, legal counsels had freedom in choosing the method and means to implement the obligation to investigate conflicts of interest. In § 6 of the Regulations, which constitutes an annex to the resolution of 3 December 2022, the Council only specified the method of fulfilling the obligation of legal counsels to investigate conflicts of interest by maintaining a client register. The argument of the Minister of Justice that maintaining a client register is unnecessary for conducting legal counsel’s activities is flawed, since for the last 100 years among attorneys and 40 years by legal counsels, legal assistance has been provided without maintaining such registers. This statement is detached from existing realities. In many larger entities, a client register maintained for the purpose of investigating conflicts of interest has been in operation for years. Moreover, the intensification of legal transactions, including the number of clients using legal assistance, is incomparable to the period of several decades ago. The Supreme Court shares the Council’s view that relying solely on a legal advisor’s memory or reviewing files would lead to the illusory nature of the requirement to examine conflicts of interest. In the complaint, the Minister of Justice raised an objection to the incompatibility of § 1 in conjunction with § § 6 of the annex to this resolution with the law, and in particular with Article 6 paragraph 1 of the GDPR due to the lack of a legal basis for processing data of clients of free legal assistance. In the justification, the Minister attempted to demonstrate why the grounds for legalizing the processing of personal data indicated in Article 6 paragraph 1 letters a), b), d), or e) of the GDPR cannot be applied in this case, making the processing of personal data unlawful. Article 6 of the GDPR specifies the conditions under which the processing of personal data is permissible. This provision constitutes a detailed specification of the basic principle of personal data processing formulated in the GDPR, which is the principle of lawfulness of data processing, by exhaustively indicating the cases in which the processing of personal data is permissible. The grounds on which the processing of personal data may be based are: a) the data subject has consented to the processing of his or her personal data for one or more specific purposes; b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; c) processing is necessary for compliance with a legal obligation to which the controller is subject; d) processing is necessary to protect the vital interests of the data subject or of another natural person; e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. The basis for processing referred to in paragraph 1(c) and (e) must be laid down: 1) in Union law; or2) in the law of the Member State to which the controller is subject.The purpose of the processing must be specified in that legal basis or, in the case of processing referred to in point (e) of paragraph 1, it must be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. The legal basis may contain specific provisions adapting the application of the provisions of this Regulation, including: general conditions for the lawfulness of processing by the controller; the type of data subject to processing; data subjects; entities to whom personal data may be disclosed; the purposes for which they may be disclosed; purpose limitations; storage periods; and processing operations and procedures, including measures to ensure lawfulness and fairness of processing, including in other specific processing situations referred to in Chapter IX. EU or Member State law must serve a public interest objective and be proportionate to the legitimate objective pursued. Each of the above-mentioned substantive grounds for personal data processing is autonomous and independent in nature, and they are, in principle, equally valid. Demonstrating the existence of one of them is sufficient to determine whether processing is permissible. Importantly, it is the data controller’s responsibility to indicate the scope of personal data being processed and the legal basis for processing personal data in a specific situation. The Court has no doubt that in this case, the scope of data being processed and the legal basis for processing personal data may vary among legal counselors. This stems from the nature of the GDPR provisions, which are written in the spirit of technological neutrality. Furthermore, the data controller is subject to a number of obligations specified in the GDPR provisions intended to protect the data subject. These include, among others, the obligation to process data lawfully, in a fair and transparent manner for the data subject, and to collect personal data limited to what is necessary for the purposes for which they are processed. In a situation where a legal advisor maintains a client register contrary to the provisions of the GDPR, the supervisory authority appointed to monitor the application of personal data protection provisions is the President of the Office for Personal Data Protection. In the complaint, the Minister of Justice alleged that § 1 in conjunction with § 6 of the annex to this resolution is incompatible with the law of Article 6 paragraph 1 of the GDPR, without indicating the specific letter with which the content of the Regulations is inconsistent. In view of the above, for the compliance of § 6 of the Regulations with the law, it is sufficient to indicate one legal basis legalizing the processing of personal data under Article 6 paragraph 1 of the GDPR. According to the Supreme Court, a legal advisor, as a controller of personal data processed as part of the provision of free assistance, may process personal data under Article 6 paragraph 1 letter c of the GDPR, because their processing is necessary to fulfill the legal obligation incumbent on the controller, i.e. checking for a conflict of interest and, if such a conflict exists, refusing to provide legal assistance, which obligation arises from Article 15 of the Personal Data Protection Act and Art. 30a of the KERP in conjunction with Art. 22 of the Personal Data Protection Act and Art. 5 sec. 3 of the Personal Data Protection Act. Pursuant to Art. 6 sec. 1 letter c of the GDPR, the processing of personal data is permissible when it is necessary to comply with a legal obligation to which the controller is subject. The processing of personal data under Art. 6 sec. 1 letter c of the GDPR is permissible provided that the following conditions are cumulatively met: 1) there is a legal provision that imposes a legal obligation on the data controller; 2) data processing is necessary to fulfil this legal obligation. The existence of a legal provision should be assessed taking into account the catalogue of sources of law resulting from Art. 87 sec. 1 of the Constitution of the Republic of Poland. However, they cannot, in themselves, constitute a basis for the processing of personal data, in particular lower-ranking provisions, including those contained in local law. As indicated in recital 45 of the preamble, the GDPR does not require that specific legal regulations exist for each individual processing activity – it may be sufficient that a given legal regulation forms the basis for various processing operations resulting from a legal obligation to which the controller is subject, or that the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority. According to the Court, the legal provision imposing on the controller the obligation to process personal data for the purpose of investigating conflicts of interest is Article 15 of the Act on Legal Advisers, and § 6 of the Regulations merely provides guidance on how to perform the obligation. Undoubtedly, the need to investigate the existence of a conflict of interest serves the pursuit of an objective in the public interest, for example, the exercise of the right to a fair trial and legal certainty, and the introduction of a client register is proportionate to the stated objective. Regarding the possibility of maintaining a joint register by legal advisers practicing their profession jointly with other persons, it should be noted that the adopted solution is inextricably linked to the wording of Article 15 of the Act.Article 26a section 1 of the KERP, which establishes the obligation to refrain from professional activities in a case due to a conflict of interest or a significant risk of its occurrence, if the person practices in a law firm together with other legal advisers or persons with whom, under the provisions of law, they may jointly practice the profession and any of them is in a conflict of interest situation. Referring to the alleged incompatibility of § 5 and § 6 of the Regulations with Article 41 item 5a of the Act on Legal Advisers by undermining the legal obligation of the professional self-government of legal advisers and its members to cooperate in the implementation of tasks arising from the Act of 15 August 2015 on free legal aid, free citizen counselling and legal education, it should be noted that the Minister of Justice has not demonstrated what this illegality would consist of. In justifying the complaint, the Minister of Justice focused solely on the potential interpretation of § 5 of the Regulations. The Supreme Court fully agrees with the arguments presented by the Council in response to the complaint that coordinators of the free legal aid system and reviewers of citizens’ advice cannot, under § 5 of the Regulations, be considered collaborators in the provision of legal aid. Coordinators and reviewers perform their duties not on behalf of a legal counsel, but on behalf of the district providing free legal aid as a commissioned public task. They therefore remain in a legal relationship with the district to which they are obligated to provide the service. Their activities are related to the performance by local government units of a public task to the extent that is incumbent upon them, and do not involve collaboration with legal counsel providing assistance. Therefore, they do not collaborate with a legal counsel or in the provision of legal assistance within the framework of a legal or factual relationship. Their activities occur before the provision of assistance begins and after its completion, and therefore do not constitute collaboration in its provision. Taking the above into account, a legal advisor is not obligated to obtain a confidentiality obligation from the coordinator or reviewer regarding information covered by professional secrecy, as they are not collaborators in the provision of legal assistance within the meaning of § 5 of the Regulations. For all these reasons, the Supreme Court, pursuant to Article 47 paragraph 2 of the Act on Legal Advisors, ruled to uphold the contested resolution. [SOP][ał]
</pre>