In the context of a dispute with a lawyer, which may typically involve opposing claims: a claim against the lawyer for a failure to perform under his contract of services, for professional negligence and/or malpractice and a claim against the client for the non-payment of fees, but also in other cases, lawyers often assert a right to hold onto clients’ documentation.
This typically forces the hand of the client, who may often be more concerned to proceed with his plans (and necessarily, make use of his documents) than to dispute the lawyer’s fee claims. Would clients be less amenable if they realise that such assertions by lawyers are on thinner ice in Bulgaria than they may be elsewhere?
Unlike other legal systems (eg, the rights that English solicitors may be able to exercise), Bulgarian law does not envisage the possibility of a lien by an advocate.
On the contrary, there is an express statutory obligation on advocates to return to his or her client his or her original documents, after the end of an instruction (art. 47 (1) Bulgarian Bar Act). General rules as to the right of lien would apply only insofar as they are strictly compatible with the provisions of the lex specialis, here, the special provisions of the Bar Act. The use of the rights of lien would thus appear to be strictly limited to certain cases and certain narrow conditions, interpreted against the proposer of a right of lien.
Bulgarian law in this area would appear to relate to the distinction between official and private documents. A lawyer may be able to withhold a contract, proxy, statement, court claim or in general a private document drafted by him- or herself on his or her client’s request, in case the client has not paid.
But at the moment this document becomes “official” – in the broadest meaning of this word, namely the contract, proxy, etc. is certified by a Notary, a draft statement of claim is filed at court, the lawyer would not have the right to refuse to hand over the document to the client. The one area where a right of lien may remain as a residual right would relate to the drafts of official documents – notary deeds, writs of execution, freezing injunction order, notary certified agreement or declaration or to documents which are otherwise entirely private but would never extend to “official” documents.
Asset tracing and fraud: Use of evidence from parallel criminal proceedings in a civil trial
Over the last year, we have assisted the victims of a multi-million dollar large-scale international fraud. Certain of the scheme’s operations were embedded in Bulgaria’s thriving business process outsourcing (BPO) ecosystem.
As part of our representation for clients, we have pursued a claim in a regional Bulgarian court (the organisers of the fraudulent scheme having transferred the registration of the relevant entity to a disused building in that location). We were pleased to obtain a very helpful intervention from the court at first instance including an order to append files containing a substantial amount of evidence generated through a criminal investigation into the fraud to the civil case. This provides rich evidential pickings for proceedings which are either already being conducted or are being contemplated in a range of international jurisdictions as well as Bulgaria.
© New Balkans Law Office 2018