Accelerating Civil Proceedings in Croatia
7.3.5 The issue of party representation – The fight over the legal monopoly of registered attorneys
The most disputed point in the discussions that surrounded the reform of civil pro- cedural law related to the right of representation and self-representation in civil proceedings. The main issues were whether parties should be admitted to appear in person before the court, and who should be entitled to represent them.
The Code of Civil Procedure of 1976 was very permissive with regard to rep- resentation and self-representation, enabling parties to defend their interests di- rectly and without any representative. In choosing a representative, the party was permitted to retain any person, regardless of his/her qualifications and affiliation to a profession or professional group, as a representative in the proceedings. From the very announcement of the reform of civil procedural law, the Croatian Bar Associa- tion lobbied energetically for the introduction of a monopoly on representation (i.e., that only registered attorneys-at-law might be selected as representatives) and for the introduction of mandatory representation (Anwaltszwang) in potentially all types of litigation. This position encountered resistance, especially among representatives of corporate lawyers who would also have been affected had the proposal suc- ceeded. The debate lasted several years and was reflected in the professional peri- odicals.52 Irreconcilable opinions and the impossibility of reaching a satisfactory or even a compromise solution regarding this question was one of the main reasons why reform of civil procedural law was delayed for several years.
In the end, the current provisions and the status quo was in practice maintained in most courts, with only marginal limitations being introduced. The possibility of self-representation remained, but the circle of persons who could be representatives in litigation was narrowed. As a rule, if a party engages a legal representative, that legal representative must be an attorney-at-law whose monopoly in claiming fees for such a function was confirmed. Yet, as an exception, individuals have retained the right to appoint legal representatives from within the circle of their close rela- tives (spouses and children/parents). Legal persons (companies) further retained the right to be represented in legal proceedings by their corporate lawyers, or even any other of their employees.53
Although many arguments were offered to prove that qualified and professio- nal representation would significantly strengthen procedural discipline and acce- lerate civil proceedings, it seems that the point has not as yet been proven. The ma- jority of such arguments were tainted by the clear self-interest of their proponents, and impartial observers seem not to be convinced as to the final outcome. In reality, despite the absence of any obligation to engage an attorney in civil litigation, parties in Croatian civil proceedings have so far in most cases engaged lawyers if they were
Among others see M. Giunio, Pravo i porezi, 9, 1997, p. 24-29; M. Hanžekovi , Pravo i porezi, 11, 1997, p. 1127-1129; J. Kos, Pravo i porezi, 12, 1997, p. 38-42; M. Kova , Tvrtka, 9, 1996, p. 51-53. For a synthesis of the discussions about mandatory representation see A. Uzelac, ‘Obvezatno odvjetni ko zastupanje’ (‘Mandatory representation by attorneys’), Pravo u gospodarstvu, 37, 2, 1998, p. 149-185. See the amended Articles 89-91 Code of Civil Procedure, including the new Article 89a.