How to appoint a commercial attorney in a limited liability company and avoid mistakes?

This article answers the following questions:

• Is it obligatory to appoint a commercial attorney in a limited liability company?
• How to properly appoint a commercial attorney in a limited liability company?
• Can a board member of a limited liability company be its commercial attorney?
• Can a commercial attorney's position in a limited liability company be stronger than that of a board member?
• Is a commercial attorney liable for debts of a limited liability company?
• How to revoke a commercial attorney in a limited liability company?

Commercial attorney – obligatory or optional?

Appointing a commercial attorney in a limited liability company is not obligatory. Legal entities (such as a limited liability company) act through its corporate bodies which form part of their structure. Commercial attorneys are not corporate bodies; therefore, they are not obligatory elements of this structure.¹

In practice, however, a commercial power of attorney is a useful and very transparent instrument in business dealings for trading partners.² In some cases, it may prove indispensable for the effective functioning of the company, e.g. when the board members:

• are temporarily incapable to perform their functions (e.g. due to illness)
• are on leave³,
• have insufficient time to carry out their duties,
• lack the capacity to perform certain acts⁴,
• are foreigners with poor command of Polish language or face difficulties of a technical nature.

Limited liability companies can have one or more commercial attorneys. The powers of a commercial attorney, types of a commercial power of attorney, and the differences between a commercial and ordinary power of attorney are described here.

Who can be appointed a commercial attorney?

Only a natural person with full capacity can be appointed a commercial attorney.⁵ Due to the fact that the rules on becoming a commercial attorney are formulated at a high level of generality, in practice, one may inquire whether a member of the corporate bodies of a limited liability company: the shareholders' meeting, the supervisory board, or the management board can also be appointed its commercial attorney.

This issue was raised in the statement of reasons for the resolution of the Supreme Court in the panel of seven judges⁶ It points to the following conclusions:

1. Shareholders in a limited liability company can be its commercial attorneys if they are natural persons with full capacity.
2. Members of the supervisory board of a limited liability company cannot be its commercial attorneys, because the supervisory board is established to scrutinise all the operations of the company, including the activities performed by commercial attorneys. Furthermore, the prohibition of combining the functions of a member of the supervisory board and a commercial attorney arises from Article 214(1) of the Polish Commercial Companies Code.
3. Members of the management board of a limited liability company cannot be its commercial attorneys, due to the fact that, among other things, the scope of authority that would be granted to them under a commercial power of attorney would overlap the scope of their authority to represent the company. 

Therefore, the above limitations should be taken into account when appointing a commercial attorney.

Appointing a commercial attorney in a limited liability company

Unless it is otherwise stipulated in the articles of association, under the general rules of law, appointment of a commercial attorney requires the consent of all the management board members. A unanimous decision of the management board is required in this issue to prevent assigning this function to an inappropriate person.⁷ This is because a commercial power of attorney is a high-trust relationship,⁸ as the commercial attorney has a broad scope of powers to act on behalf of the limited liability company, and the effects of any misconduct may be particularly severe for the company and its management board.⁹

In order to appoint a commercial attorney in a proper manner, the management board must adopt a unanimous resolution on the consent to appoint a commercial attorney (which must be in writing¹⁰), in which a specific individual (natural person) is assigned as the commercial attorney, and the type of the commercial power of attorney is designated. In addition, the commercial attorney's written consent to their appointment needs to be obtained.¹¹

The appointment of the commercial attorney must be entered in the register of entrepreneurs (the National Court Register).¹² The entry of the appointment of the commercial attorney must contain the type of the commercial power of attorney (and in the case of a joint or mixed commercial power attorney – the mode of its exercise). The registration of the commercial power of attorney is of a declaratory nature only,¹³ as the commercial power of attorney is binding from being granted, not from its entry in the register.¹⁴

Commercial attorneys and board members 

It is frequently the case that a company has a two-person management board and is to be jointly represented by both board members or by one of them together with a commercial attorney. In such light, there might appear an issue concerning the powers of an individual commercial attorney in joint representation – i.e. whether the individual commercial attorney has the right to make representations on behalf of the limited liability company independently, despite the fact that the representation rules state that the company may be represented by one management board member jointly with a commercial attorney. Will the position of the individual commercial attorney be stronger than that of the management board member in such a situation?

In a sense, yes. Statutory or contractual rules of company representation do not affect the scope of powers of the company’s commercial attorneys.¹⁵ The case of mixed representation presented above (a management board member jointly with a commercial attorney) limits the powers of the management board, not of the commercial attorney.¹⁶ In such a case, it is the management board that must adhere to the joint representation rules, and the commercial attorney may act independently. The appointed individual commercial attorneys do not negate the rule of joint representation by the members of the management board.¹⁷

It should be emphasised at this point that the management board remains an obligatory body in a limited liability company, and even an independent commercial attorney cannot replace it. It should be also added that, all in all, the powers of the management board are broader than those of commercial attorneys. Board members have the right to manage the affairs of the company and represent it, while commercial attorneys can only represent the company. 

Are commercial attorneys liable for debts of a limited liability company?

Despite having a very broad scope of authority, the liability of commercial attorneys is not identical to and as broad as the scope of liability of the management board members of a limited liability company. It stems from Article 299(1) of the Polish Commercial Companies Code,¹⁸ which stipulates that where the enforcement against the company is ineffective, management board members have joint and several liability for the debts of the company. 

Since the regulations include only management board members, there are no reasons to assume that persons who perform other functions in the company (including commercial attorneys) were liable for its debts.¹⁹

What is the scope of liability of commercial attorneys? Commercial attorneys are liable for their own actions carried out on behalf of the company under the general rules of law, i.e. fault-based liability.

Revocation and expiry of a commercial power of attorney

A declaration by any management board member, made at any time, is sufficient to revoke a commercial attorney (unless it is otherwise stipulated in the articles of association). However, due to the lack of a uniform view among legal scholars and commentators on the right to revoke the commercial power of attorney by a single member of the management board (i.e. irrespective of the representation model adopted in the company), to cause effective termination of the commercial attorney's powers, corporate advisory experts recommend a conservative solution, namely taking care that the declaration to revoke the commercial power of attorney is made in line with the rules of company representation.²⁰

In addition to revocation, a commercial power of attorney expires automatically in the following situations²¹:

1. the commercial attorney’s death,
2. the opening of the company's liquidation,
3. the company’s bankruptcy,
4. the company's conversion,
5. the court’s appointment of a mandatory agent in accordance with Article 42(1) of the Polish Civil Code.

The revocation of the commercial attorney or the expiry of the commercial power of attorney must be both entered in the register of entrepreneurs (the National Court Register).²²

Bottom line

Appointing a commercial attorney and structuring a commercial power of attorney in a proper manner (as well as thorough knowledge of the scope of liability and the rules of revoking the commercial attorney) are of key importance for the safety of legal transactions and efficient operations of limited liability companies.

If you are wondering whether or not appointing a commercial attorney in your company is a good idea, consult this with an advisor and take advantage of professional support offered by RSM Poland.

¹ Z. Radwański, A. Olejniczak (ed.), Prawo cywilne – część ogólna. System Prawa Prywatnego. Vol. 2, 3rd edition, 2019, Legalis.
² Z. Radwański, A. Olejniczak (ed.), Prawo cywilne – część ogólna. System Prawa Prywatnego. Vol. 2, 3rd edition, 2019, Legalis.
³ Resolution of the Polish Supreme Court – Civil Chamber of 27 April 2001, file no. III CZP 6/01, Legalis.
⁴ S. Michalak, Zakres umocowania prokurenta w postępowaniu rejestrowym, Monitor Prawa Handlowego 2022, no. 3, pp. 35-43.
⁵ cf. Article 109[2] of the Polish Civil Code of 23 April 1964 (i.e. Journal of Laws of 2025, item 1071).
⁶ Resolution of the Polish Supreme Court of 30 January 2025, file no. III CZP 34/14, Legalis.
⁷ A. Opalski (ed.), Kodeks spółek handlowych. Vol. IIA. Spółka z ograniczoną odpowiedzialnością. Komentarz. Articles 151–226, 1st edition, 2018. 
⁸ P. Pinior, J. A. Strzępka (ed.), Kodeks spółek handlowych. Komentarz, 1st edition, 2024, Legalis.
⁹ Z. Jara (ed.), Kodeks spółek handlowych. Komentarz, 29th edition, 2025, Legalis. 
¹⁰ cf. Article 109[2] of the Polish Civil Code of 23 April 1964 (i.e. Journal of Laws of 2025, item 1071).
¹¹ cf. Article 19a(5) of the Polish National Court Register Act of 20 August 1997 (i.e. Journal of Laws of 2025, item 869).
¹² cf. Article 109[8] of the Polish Civil Code of 23 April 1964 (i.e. Journal of Laws of 2025, item 1071).
¹³ Z. Jara (ed.), Kodeks spółek handlowych. Komentarz, 29th edition, 2025, Legalis.
¹⁴ Z. Radwański, A. Olejniczak (ed.), Prawo cywilne – część ogólna. System Prawa Prywatnego. Vol. 2, 3rd edition, 2019.
¹⁵ Ruling of the Polish National Appeals Chamber of 23 March 2017 (Polish: Krajowa Izba Odwoławcza), file no. KIO 461/17, Legalis.
¹⁶ Decision of the Polish Supreme Court – the Labour, Social Security and Public Affairs Chamber of 25 February 2016, file no. II PZ 24/15, Legalis. 
¹⁷ Ruling of the Polish National Appeals Chamber of 23 March 2017 (Polish: Krajowa Izba Odwoławcza), file no. KIO 461/17, Legalis.
¹⁸ The Polish Commercial Companies Code of 15 September 2000 (i.e. Journal of Laws of 2024, item 18).
¹⁹ Z. Jara (ed.), Kodeks spółek handlowych. Komentarz, 29th edition, 2025, Legalis.
²⁰ M. Rodzynkiewicz, BD30. Prokura w spółce z ograniczoną odpowiedzialnością, BeckDirect, Legalis.
²¹ Z. Radwański, A. Olejniczak (ed.), Prawo cywilne – część ogólna. System Prawa Prywatnego. Vol. 2, 3rd edition, 2019, Legalis.
²² cf. Article 109[8] of the Polish Civil Code of 23 April 1964 (i.e. Journal of Laws of 2025, item 1071).