At the request of some fellow lawyers, I decided to write a few lines about the possibility of lawyers to benefit from the support measures created by the Government, included in G.E.O. no. 29/2020 and G.E.O. no. 30/2020, with the subsequent changes (notably, with the amendments brought by G.E.O. no. 32/2020).
The general context
For more than a month, in the context of the SARS-CoV-2 coronavirus epidemic, the public justice service is functioning intermittently or not at all. It should be remembered, in this regard, that in the field were adopted measures to limit the settlement of cases just before the establishment of the state of emergency by the Decree of the President of Romania no. 195/16.03.2020. For instance, by means of Decision no. 192/12.03.2020, the Superior Council of Magistracy decided that during the period 13.03.2020 – 4.05.2020 “the activity of the courts will be strictly limited to solving exceptional cases, only insofar as the postponement provisions would be of a nature to infringe on fundamental rights and freedoms or to seriously endanger public order or the safety of citizens ”, and through Order no. 91 / 12.03.2020 the president of the High Court of Cassation and Justice has decided to suspend the public access to the offices of the High Court of Cassation and Justice (and, inherently, to suspend the trial of cases) for the period 16.03.2020 – 16.04.2020. The establishment of the state of emergency did nothing but permanentize this state of affairs. Moreover, some courts have even created tougher rules of their own, excluding from the settlement even the cases that are judged in the council chamber, without the presence of the parties (see, for example, point VII of the Decision of the Governing Board of the Bucharest Court No. 8/30.03.2020), for the period 31.03.2020 – 4.05.2020.
In the economic-financial legal plane, this state of affairs has had asymmetrical effects on the categories of persons contributing to the proper functioning of the public service of justice. Thus, from what is known to us, the magistrates, prosecutors and auxiliary staff of the courts and prosecutor’s offices were not affected by any measure to reduce the remuneration and salary increases, by virtue of a relative presumption that they continue to work and ensure the functioning of the public service. of justice. Also, no one in the above-described category was placed, according to our science, in “technical unemployment” (that is, was not temporarily suspended the individual employment contract at the initiative of the employer) or was not in the situation of being suspended by as the individual employment contract, following the occurrence of a case of force majeure.
In contrast, as a result of a complex of factors, the most important auxiliaries of justice – lawyers – are in a diametrically opposed situation. Such factors are:
– implementation of traffic restrictions, which inherently affect the activity of a liberal profession
– the abolition of the work program with the public at various institutions (Trade Register, Cadastral Office and Real Estate Advertising Office, various competent authorities to issue opinions, agreements and authorizations, the local public administration authorities)
– communication difficulties, both in relation to clients, as well as in relation to courts and other public authorities
– the significant reduction of the economic activity (or the absence of an economic activity, in certain areas)
– reducing or eliminating verification and control actions by public authorities
– blocking the criminal investigation activity in most cases, as a result of redefining the priorities of the police bodies
– the distant prospects for the resumption of the normal functioning of the public service in the judiciary (in the conditions in which the system has worked badly throughout the year due to a protest by some of the magistrates);
– the close prospects of an economic crisis subsequently to the health crisis.
Being in the presence of a liberal profession, I avoid to say that lawyers – perhaps with the exception of those paid on the basis of an individual employment contract – are unemployed (technically) within the meaning attributed to this notion by the provisions of the Labour Code. However, it is certain that the activity of lawyers is seriously affected and the current status, at least for some of the lawyers, is one that is close to that of people who have lost their income or overwhelmingly their income.
In fact, this state of affairs is expressly recognized by the Government. As it results from reading art. X paragraph (5) of the G.E.O. no. 29/2020, the activity of the lawyers “(…) is directly affected by the measures ordered by the public authorities, for the prevention and control of the pandemic caused by the infection with the COVID-19 coronavirus”.
The obligation of lawyers to ensure the functioning of the public service of justice
In art. X from O.U.G. no. 29/2020 the Government explicitly regulated the obligation of the lawyers to ensure the functioning of the public service of justice by their continuous participation in those activities that can be carried out (according to the Decree of the President of Romania no. 195/16.03.2020) or that are carried out effectively (according to the decisions adopted by the Superior Council of Magistracy and the governing bodies of the courts and the prosecutor’s offices). The Government has set out to ensure the fulfillment of this obligation by the professional body of lawyers under threat of severe sanctions:
– the possibility of exclusion from the profession of lawyer in case of refusal to ensure continuity of activity [art. X paragraph (6) of G.E.O. no. 29/2020];
– the possibility of losing the social benefits – including those granted during the state of emergency – by the employees of the forms of practicing the lawyer profession who refuse to fulfill their duties and thus impede the optimal performance of the (continuous) activity of the lawyers [art. X paragraph (7) of G.E.O. no. 29/2020].
It should be mentioned, for compliance, that the obligation to ensure the continuity of the activity was instituted for two other categories of judicial assistants: notaries public and judicial executors.
Support measures provided by O.U.G. no. 29/2020 and O.U.G. no. 30/2020
Thus, through the competition of the provisions of art. X paragraph (1) and (5) of the O.U.G. no. 29/2020, it was established that the forms of exercise of the lawyer profession benefit, during the state of emergency, from:
– payment deferral for utility services – electricity, natural gas, water, telephone and internet services
– the deferred payment of the rent for the building destined for registered office and secondary offices.
In our interpretation, the forms of exercise of the profession of lawyer did not have and do not need to request and obtain an emergency certificate from the Ministry of Economy, Energy and Business Environment, since the direct affectation of the activity was expressly recognized by the legislator.
Also, in the content of art. XV of G.E.O. no. 30/2020, in its initial form, it was provided generically that the professionals – within the meaning attributed to the notion of art. 3 paragraph (2) Civil Code – benefit from support measures supported from the public budget, respectively a basic allowance equal to the minimum gross basic wage guaranteed in payment for 2020 (the sum of 2,350 lei).
Clarification of support measures through G.E.O. no. 32/2020
As we mentioned in another material dedicated to this issue, the Government modified by means of G.E.O. no. 32/2020 art. XV of the G.E.O. no. 30/2020, explaining the special support measures to be received (freely) by professionals. These measures are regulated under the conditions in which the restrictions even before the establishment of the state of emergency affected, in whole or in part, the activity of some freelancers.
In accordance with art. XV paragraph (1) of G.E.O. no. 30/2020, in the modified form, the beneficiaries will receive a monthly allowance of 75% of the average gross salary for 2020, respectively the fixed amount of 4,072 lei (by reference to the average gross salary for 2020, of 5,429 lei). This allowance is granted during the period of emergency.
For all beneficiaries, the allowances described above are paid from the state budget.
The allowances described above remain taxable, according to the general provisions of the Fiscal Code or according to the provisions of the special legislation, regarding the compulsory social contributions and the income tax. For example, as far as lawyers are concerned, from the gross compensation of 4,072 lei a percentage of 11% representing the social insurance contribution to the lawyers’ own system (448 lei) will be withheld, the lawyer’s contribution will be paid directly monthly health insurance of 235 lei, and the difference of 3,389 lei will be taxed by 10% (339 lei). Therefore, in the case of a gross compensation of 4,072 lei, the net income of a lawyer will be 3,050 lei.
Procedure for payment of allowances, pursuant to art. XV of G.E.O. no. 30/2020, was regulated by G.E.O. no. 32/2020. Thus, the payment will be made through the Paying and Social Inspection Agencies organized at county level (art. II of G.E.O. no. 32/2020). To receive the payment, the potential beneficiaries will send by e-mail a request accompanied by the copy of the identity document and a declaration on their own responsibility.
A current dilemma: Can lawyers benefit from support measures or are they obliged to continue to work?
Discussions in the last hours, especially on lawyers’ forums, have focused on two main theses. In one interpretation it is claimed that, in order to benefit from the support measures, a lawyer should apply for suspension from the profession of lawyer, thus becoming eligible during the suspension and state of emergency, in order to grant the support allowance. In another interpretation, lawyers could not benefit from the support measures as they are obliged to continue their activity, so that even making an application for suspension from the profession, during the state of emergency, would cause them to be excluded from the profession.
As for me, I appreciate that neither of these theses can be received and that in fact the solution is another, much simpler: lawyers can remain at the disposal of the State, to ensure if the functioning of the public service of justice is needed, and in at the same time to discontinue their work and receive the support allowance. Some explanations are, in context, necessary and useful.
Priority, by reference to the provisions of art. XV paragraph (1) of G.E.O. no. 30/2020, amended, we will observe that the legislator establishes a single condition, for all professionals, that of interrupting the activity due to the effects of the coronavirus SARS-CoV-2. Studying also the list of documents required to be presented by the persons requesting the Agency for Payments and Social Inspection to make the payment of the allowance, we will note that the decision (Bar Council) of suspension of the profession is not among the necessary documentary pieces. Therefore, the law does not stipulate the obligation to suspend the profession in order to benefit from the payment of the allowance. In addition, from a broader perspective, this issue must also be read in the light of art. X paragraph (6) of G.E.O. no. 29/2020: if the lawyers are obliged to ensure continuity in the activity, ie to be available to the public justice service for its needs, the management bodies of the lawyer profession should reject from the chair any request to suspend the activity, and if the lawyer persists in supporting such a request, to initiate the exclusion procedure.
It follows from this that the interruption of the activity is a matter of fact, to be displayed as such by the potential beneficiary (lawyer) when this completes a declaration on his own responsibility which shows that in a certain period, during the state of emergency, the activity was interrupted.
But what does it mean to interrupt the activity?
The government did not detail, in the primary legislation that is known to us, this concept, although the interruption of the activity is a sine qua non condition in order to be able to benefit from the support allowance provided by art. XV paragraph (1) of G.E.O. no. 30/2020. Therefore, we propose a subtle interpretation, which ensures the observance of the spirit of the law.
Thus, the unquestionable premise of granting support measures for freelancers, including lawyers, is that lawyers cannot carry out, during the state of emergency, legal activities that generate income. As a consequence, the Romanian State has committed to provide them with a minimum of income for the entire duration of this exceptional situation.
Naturally, this should be the criterion to prove the interruption of the activity: the fact that a lawyer did not carry out, during the period for which he requested the indemnity, legal activities that generate income. Specifically, this could translate into any of the following assumptions:
– the lawyer who works in any of the forms of organization of the profession did not conclude legal assistance contracts and did not issue invoices / receipts / tax certificates corresponding to legal services provided during the relevant period
– the lawyer who carries out his activity in any of the forms of organization of the profession did not carry out activities of compulsory legal assistance or cleaning, within the system organized and coordinated by the bars
– the trainee lawyer did not receive the minimum fee returned or the negotiated fee with the tutor, according to the initial training contract
– the lawyer employed within the profession did not receive the salary registered in his contract, being in a situation of temporary suspension or suspension of law of the individual employment contract.
Per a contrario, whenever we are in such a hypothesis, and during the period in question were provided legal services, the lawyer cannot benefit from the support allowance because he did not interrupt the activity.
From our point of view, not any collection of a sum of money during the relevant period denotes the conduct of a legal activity. Thus, if, for example, the lawyer received during the relevant period a fee invoiced prior to the interruption of the activity (including a fee for legal aid services ex officio) or received, in the bank account, the benefits related to his share of participation in the capital of a civil society of lawyers , we are not in the presence of legal services provided during the relevant period, but only of residual income. This is the reason why the legislator did not mention that a freelancer does not have to make any income (of any kind) during the relevant period, but that he only has to interrupt the activity in order to be eligible.
We consider that, from the point of view of the reporting system, the determination of this matter will not present practical difficulties for lawyers. Thus, the claims for payment of the indemnity are submitted in the month following the one for which the indemnity is requested. For example, for the period 16 – 31.03.2020, the applications for granting the allowance are submitted during the period 1 – 10.04.2020. However, after the end of March, the lawyer is able to assess whether or not he has provided legal services in the relevant period, so that he can conclude whether or not he has stopped his activity. Obviously, since the declaration on its own responsibility has the same effects as a tax declaration, establishing the right to receive the support allowance is subject to subsequent verification (an opportunity for the lawyer to have to prove the issues in question).
Finally, one last observation. As far as a form of exercise of the lawyer profession interrupts its activity (or, more correctly, finds out at the beginning of the following month that it had no activity), this state of affairs will affect, by ricochet, the non-lawyer employees of the form profession. In this case, the lawyer’s assistant or driver are fully entitled to request the payment of the general support allowance, provided by art. XI paragraph (1) of G.E.O. no. 30/2020, at the level of 75% of the basic salary.
Note: These considerations take into account the legislation published in the Official Journal until April 1, 2020. The material for public debate is not a legal consultation nor any legal opinion, but only the result of a professional analysis of the legal framework in force.
Av. Dr. Cosmin Flavius Costaș
Managing Partner – Costaș, Negru & Asociatii SCA
Faculty of Law, UBB Cluj-Napoca