The Supreme Administrative Court rendered the 106-Pan-594 Decision of October 30, 2017 (hereinafter, the “Decision”), holding that if more than three attorneys are retained in an administrative action, such retainer will not be effective, and if the administrative court still renders a substantive adjudication in a lawsuit represented in such manner, this will constitute the scenario where a party to the lawsuit is not legally represented.
According to the facts underlying this Decision, the Defendant held that the Plaintiff had promoted and sold food products with promotional details involving exaggerative or misleading elements or elements pertaining to medical efficacies. Therefore, the Defendant rendered a disposition which fined the Plaintiff for violation of the Food Safety and Sanitation Law. Dissatisfied, the Plaintiff brought an administrative action pursuant to applicable procedures. The original decision was rendered to set aside the decision on administrative appeal and the original disposition. Dissatisfied, the Defendant appealed.
According to the Decision, Article 49, Paragraph 1 of the Administrative Litigation Law provides that the number of attorneys retained by each party shall be subject to the limit of three attorneys, and if more than three attorneys are retained, the retainer shall not be effective. If a lawsuit proceeds with such representation while the administrative court still renders a substantive adjudication, this will constitute the scenario where a party to the lawsuit is not legally represented as well as a reason why the decision is ipso facto in violation of laws and regulations under Article 243, Paragraph 2, Subparagraph 4 of the Administrative Litigation Law. In this case, the retainer of the fourth attorney by the Defendant after three attorneys were retained was certainly not valid. Although the fourth attorney stated during the oral argument proceeding that another lawyer was discharged, still he was not the retaining or retained party and thus could not indicate the intent of terminating the retainer. The dismissal of appointment which had not been submitted until the oral argument proceeding was concluded merely effectively terminated the retainer but could not become retroactively effective. Therefore, this still did not change the fact that the attorney served as the fourth attorney of the Defendant in the litigation engaged on behalf of the Defendant during the oral argument proceeding of the original trial on December 8, 2016. Based on the above requirements and explanation, since the representation by the fourth lawyer was defective, this would constitute the scenario that a party to the lawsuit is not legally represented. Hence, the original decision rendered by the original trial court under such circumstance was certainly subject to the reason why the decision is ipso facto in violation of laws and regulations under Article 243, Paragraph 2, Subparagraph 4 of the Administrative Litigation Law, and the original decision was reversed and remanded.