The commentary offers a critical analysis of the decision of the Supreme Court dated 5 October 2023 (case No. II ZK 102/22), in which an attorney was found guilty of a disciplinary infraction for failing to submit an authorisation for a trainee advocate. The Supreme Court held that the trainee did not act as a substitute attorney, but merely as the advocate’s assistant, acting on behalf of the advocate and pursuant to statutory norms, therefore no separate authorisation or client consent was required. This reasoning led to the attribution of disciplinary liability to the advocate. The author challenges this line of argument, emphasising that both legal scholarship and case law present divergent views on the nature of a trainee’s procedural role—some authors and courts consider it a form of substitution. Regardless of the legal classification adopted, the decisive factor in assessing the advocate’s disciplinary liability should have been the content of the contractual relationship between the advocate and the client, which forms the basis for granting the power of attorney. The Court’s failure to consider the terms of this contract —especially in light of the defendant advocate’s assertion that the client had withheld consent—resulted in an incomplete legal assessment of the advocate’s conduct. The author argues that determining whether the advocate was contractually entitled to grant authorisation to the trainee, in accordance with the client’s will, was a prerequisite for attributing disciplinary responsibility. The fact that the disciplinary bodies ignored this aspect constitutes a serious omission that could have influenced the evaluation of whether the advocate’s conduct indeed met the criteria of a disciplinary infraction.
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