The organization of the legal profession in Italy

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Sommario


1. The sources of law regulating the legal profession in the Italian system

In the Italian system the organization of the legal profession is entrusted to various sources of law: Article 24 of the Constitution lays down that “everybody can initiate legal action to protect their legitimate rights and interests. Defence is an inviolable right at every stage and level of the proceedings”. The less well-to-do are “ensured (...) the means to initiate action and defend themselves before any court or jurisdiction (...)”. This provision is thought to entail a constitutional protection of the legal profession, thus differentiating it from the other intellectual professions and granting it a specificity and a role having institutional implications.

Hence the legal profession cannot be regulated - without prejudice to the aspects of private law – in the same way as the other professions. This conclusion is corroborated by the fact that - faced with a general set of regulations governing the intellectual professions (including engineers, architects, notaries, doctors, accountants and so on, pursuant to Law No. 148 of September 14, 2011 and Ministerial Regulation No. 137 of August 7, 2012) - the legal profession has been regulated by separate and specific rules.

In all these sectors the professions - which are considered a form of self-employment and an expression of intellectual work - can be practised only by professionals who have passed a State exam qualifying them for practicing the profession and are registered with a roll. The registers are held by local elective bodies. These structures are called “ordini” (rolls or associations) organized as non-profit public bodies, having their own organizational autonomy, and coordinated by national centralized organizations (National Councils).

There is a third class of professionals, regulated by Law No. 4 of January 14, 2013, who are not organized by rolls, including new professions or professional who had never joined for purposes of representation and supervision, but only for association purposes to ensure benefits to their members. These are associations of interpreters, graphologists, managers of blocks of flats, tax advisors, etc..

Obtaining a special set of rules was not easy, because it took more than eight years to achieve this goal and a real struggle had to be waged against the government, which wanted to “level out” the legal profession, as well as against many members of Parliament and large segments of the public. Ups and downs were recorded and a final rush which ended on the same day when Parliament “closed down” to resume its activity after new general elections. On the other hand, lawyers are not new to these political and institutional conflicts and clashes: the process to reform the legal profession in England lasted more than twenty years, and the same holds true for France where the reform process was in progress for a long period of time.

Finally a special statute – adopted by Parliament on December 21, 2012 has brought significant innovations to the organization and regulation of the legal profession (Law No. 247 of December 31, 2012). These rules replaced a statute enacted during the reorganization of the professions in the corporative period (Royal Decree-Law No. 1578 of November 27, 1933) which, in turn, had changed the first law enacted on the matter by Italy after its unification, dating back to 1874.

These regulations are supplemented by the rules laid down by the E.U. Directives on freedom of establishment, on freedom of exercise of the legal profession and on professional qualifications, as well as the rules of professional conduct, issued by the national association representing the legal profession, whose members are elected by the local and territorial rolls and associations, namely Italy’s National Bar Council (CNF). The same National Bar Council approves the text of the Code of ethics governing lawyers’ conduct.

2 . The aspects of the reform (Law No. 247/2012)

The reform is characterized by significant specificities.

Firstly, the fact of being an ordinary law means that the reform can be changed only by an instrument of the same level, namely an Act of Parliament. This may be surprising because the legal profession was the first profession in the post-unification Italy to be regulated by law in 1874 and subsequently, again by law, in 1933. This demonstrates that the political will expressed in very different institutional, economic and social situations – namely the liberal-bourgeois Italy with the first signs of workers' struggles, at first , and the Fascist and corporative Italy, at a later stage - felt the duty to respect the legal profession and ensure its independence and autonomy. The legal profession was never exposed to the risk of being governed by Ministerial regulations, and more generally, by secondary sources of law, which reflect the volatile approach of minute and occasional deliberations, easily revocable and changeable, having a more technical than political content. A risk which, however, was run when, by Decree-Law No 138 of 2011, the regulatory source was entrusted with the task of governing all professions, without any distinction between constitutionally protected or not protected ones, and the Ministerial power was entrusted with the task of implementing delegated rules. This could result in watering down the autonomy and independence of the legal profession, thus undermining the principles enshrined in the rule of law. One thing is to entrust regulation to Parliament, another thing is to grant government the power to implement, by regulation, (and change the implementing rules by instruments of its own, not discussed in Parliament), a law consisting of ‘loose’ and generic rules.

Secondly, the aspect of uniqueness and specialty is equally important. The need to check the quality and the results of the activity of an intellectual profession cannot go as far as to sacrifice its freedom of self-determination. Only through the model based on professional rolls and associations can we ensure both the protection of the public interest and, at the same time, the freedom of the professionals registered with a roll or association. Hence the attempt to suppress the structure of rolls and entrust the organization of professions simply to free associations was thwarted.

3. The choices made by the reform law

The new law clarifies that the legal profession shall be practised “with independence, loyalty, integrity, dignity, propriety, competence and care, by taking into account the social importance of defence and respecting the principles of fair and loyal competition” (Article 3, paragraph 2). Also the aims set out correspond to concrete and specific guidelines and are designed to reach tangible results: Article 2, paragraph 2, emphasizes the defence function of the legal profession, of which it recognizes the fundamental role considering the primary legal and social relevance of the rights it must protect.

In particular, the law regulates the following matters: the organization of professional firms, through associations or companies - for the regulation of which it refers to a delegated decree, by setting the limits of the delegation of powers - professional secrecy; the solemn pledge and oath; the assignment received by the client and lawyers’ fees; the obligation of continuing education and insurance; the professional mandate; substitutions and collaborations; registers and rolls; incompatibilities; continuity in the practice of the profession; the bodies and functions of legal rolls and associations; the establishment of arbitrating boards and conciliation boards for alternative dispute resolution; citizens’ facility; equal opportunities to facilitate the access of female lawyers to institutional posts and charges; duties and powers of the National Bar Council (CNF); the permanent Observatory on the exercise of jurisdiction; the national Congress of lawyers; professional training and relations with Universities, Legal Specialization Schools for training young people who wish to start the profession and take the State exam qualifying them for practicing the profession; disciplinary proceedings and the district disciplinary Boards.

While respecting the autonomy and independence of the legal profession, the reform has granted regulatory powers to the National Bar Council (CNF).

The National Bar Council (CNF) exercises a judicial power, typical of a special judge, because it deals with the proceedings concerning the appeal of lawyers against whom penalties have been applied, in the first-instance judgement, by the local and territorial rolls and associations (the current disciplinary Boards). Appeals may be lodged to the Supreme Court of Cassation against the decisions taken by the CNF.

The CNF also exercises the regulatory power entrusted to it by law. The following Regulations have been drafted: the Regulation on citizens’ facility for basic information to be provided to those who want to have access to justice; the Regulation on the most representative Bar associations for organizing specialization courses on lawyers’ specific activities; the Regulation for the creation of the permanent Observatory on the exercise of jurisdiction, which coordinates all the national and international institutions dealing with the efficient administration of justice; the Regulations on Legal Specialization Schools and the School for practicing before higher courts; the Regulation on disciplinary bodies.

Furthermore the CNF has proceeded to prepare the revision of the code of ethics .

The reform law has reworded the oath for registering with the professional roll or association, which is currently defined as "solemn pledge and oath" and reads as follows: “aware of the dignity of the legal profession and its social function, I pledge to fulfil, with loyalty, dignity and care, the duties of the legal profession for the purposes of justice and the protection of the client under the forms and according to the principles of our legal system” (Article 8). The oath, which previously was taken in a criminal hearing, is currently taken before the territorial roll or association with which the lawyer will be registered.

Lawyers’ activities eminently consist in the defence of rights: defence before courts and defence outside ordinary trials; participation in arbitrations and conciliation proceedings for alternative dispute resolution; advice and drafting of opinions. Lawyers are the "guardians of rights" and hence guardians of law. This is not a calembour, a play on words, but the deep truth: over time, in the same way as the Europe of law has turned into the Europe of rights, lawyers have turned from guardians of rights into guardians of law.

The reform outlines the lawyers’ training pathway, starting from a shortened traineeship during university studies, to the preparation and passing of the State exam for practicing the profession and the subsequent exam for practicing before higher courts.

Article 2, paragraph 5, of the reform law clarifies that “lawyers’ exclusive activities, except for the cases expressly envisaged by law, are the following: assistance, representation and defence in judgments before all courts and jurisdictions and in statutory and binding arbitrations”. For the first time in the history of the legal profession a law regulates also advice, which, when linked to the judicial activity, falls within lawyers’ competence (Article 2, paragraph 6).

This is not a corporative or anti-competition law. It is the protection of public interest which, in the same ways as it entrusts to lawyers the defence activity before courts and in arbitration proceedings, entrusts to them the activity linked to the judicial one. It is the activity designed to ascertain the existence and the forms for the protection of rights, as well as the ways with which rights and interests can be protected before courts and out of courts. It is the activity carried out particularly in the drafting of opinions, assistance in entering into contracts and the drawing up of contracts, as well as the other deeds, including unilateral ones, dealing with rights and interests in the working activity, in the business practice and in family and social life. For all these advisory activities and the drafting of these deeds the solemn form is not needed. It is an activity pertaining to the identification of rights, their exercise and their protection: only lawyers can ensure the protection of public interest, besides the client’s private interest.

4. Supervision over lawyers’ behaviour and the rules of professional ethics and conduct

Also the infringement of the rules of professional conduct and ethics has its own history and a specific codification: a shift was recorded from the undefined model inspired by general provisions in force under the law of 1874 and under the law of 1933, which made reference only to dignity and propriety (Article 12), decorum (Article 14), exemplary, flawless and irreproachable conduct (Article 17), to a mixed model, with the drafting of the code of ethics and conduct in 1997 until the current version of February 2014.

The code of ethics and conduct, in its version of 1997, was conceived with a triple structure, consisting of general rules (the so-called general principles, Title I and Article 60); general clauses (integrity, dignity, propriety, decorum, etc.), behavioural standards (care, competence, etc.), "canons", i.e. illustrative precepts marked by Roman numerals so as to distinguish them from the paragraphs of the basic provisions; a final general rule (Article. 60). The rules of professional ethics and conduct have been defined, from time to time, by the Supreme Court of Cassation as principles, primary rules or customary rules.

The law reforming the legal profession requires lawyers to practice the profession “by complying with the principles enshrined in the code of ethics and conduct issued by the CNF” (Article 3, paragraph 3). It identifies the content and lays down that the rules contained therein - aimed at protecting a public interest in the proper practice of the profession - are “characterized by compliance with the principle of typification of conduct”, by also indicating the applicable penalty.

Therefore, there are significant differences compared to the previous system. Firstly, the previous code was drafted with general principles and included examples of improper behaviours without associating them with specific penalties. Hence the tort based on the infringement of a general provision had a general nature and there was no list or limited number of torts. Currently the process of Typisierung has been preferred - according to the German concept which applies to civil liability - and there is no longer discretionary power in the graduation of penalties since each tort is connected with the type of penalty that can be imposed.

The possibility of reformatio in peius (namely changing a decision of a court of appeal to a worse one), with an increase of sentence and penalty on appeal, is not envisaged, as in the past.

5. The new code of ethics and conduct

The new code consists of 73 articles collected in seven Titles: the first (Articles 1-22) identifies the general principles and the second (Articles 23-37) is focused on relations with the client; the third (Articles 38-45) deals with relations with colleagues and the fourth (Articles 46-62) is related to lawyers’ duties in the trial. The fifth (Articles 63-68) regards relations with third parties and counterparts and the sixth (Articles 69-72) is focused on relations with legal and forensic institutions. The seventh Title (Article 73) contains the final rule which allows to include the typified cases.

The first Title is devoted to General principles, including the principle of independence, autonomy and fair competition; the principle of care (quality of service) and competence, updating and continuing education; the duty to comply with any tax, social security, insurance and contributory obligation. The information on professional activity shall be consistent with the aim of protecting the expectations of the community.

Compared to the current code, the order of Title II (Relations with colleagues) and Title III (Relations with the client) has been reversed in the sense that the latter has been given priority over the former so as to emphasize the public law nature of rules. Moreover two new Titles have been introduced devoted to Lawyers’ duties in trial and Relations with legal and forensic institutions.

The Title Relations with the client identifies and analyzes the time when the professional relationship is started with the information and disclosure obligations ensuing therefrom (foreseeable length of the trial – fees - written cost estimate when required - details of the insurance policy - possibility of resorting to mediation and alternative dispute resolution), and the free negotiation on remuneration and fees. Lawyers should not recommend unnecessarily burdensome and expensive legal actions and must issue a tax receipt for each payment received. The ban on cold-calling or canvassing for clients has been reiterated. The duty to provide accurate information means that lawyers shall give information about their professional activity in compliance with the obligations of truth, fairness, transparency, privacy and confidentiality by making reference, however, to the nature, extent and limits of the professional obligation. Comparative, ambiguous, misleading, derogatory or suggestive information is not permitted. The same applies to information containing references to titles, positions, functions or duties not related to the professional activity or to the indication of the names of professionals not directly or systematically connected with the law firm. Information is permitted by any means, but the website must have its own domain without re-routing, be directly referable to lawyers, the law firm or company of which they are members, after notifying the National Bar Council of the form and content of the website. No advertising banners are allowed.

Title III is devoted to Relations with colleagues. In their law firms lawyers shall foster the professional growth of their collaborators by remunerating them adequately for their work, taking into account their use of the law firm services and facilities. They shall ensure to trainees effective and profitable legal practice and, subject to the obligation of refunding expenses, they shall grant them adequate remuneration after the first six months of training.

The introduction of the Title Lawyers’ duties in the trial has the task of systematically regulating the matter and consolidating provisions scattered in different instruments. In this connection, a rule has been included relating to the ways of listening to children so as to ensure maximum fairness in a particularly delicate sphere.

Also new powers – such as service of process and notifications made directly by lawyers on their own - or new organizational systems will rely on a specific disciplinary unit to foster their implementation. The Title Relations with legal and forensic institutions underlines the “duty for the lawyers registered with a roll to cooperate, as well as the heavy penalties imposed for the activity deigned to favour candidates in the exam qualifying for the practice of the legal profession, particularly on the lawyers who are members of the examining board.

The new Code of Conduct will come into force 60 days after its publication in the Official Journal.

6. The district disciplinary boards

The reform law establishing the district disciplinary boards, as territorial bodies in charge of carrying out disciplinary tasks with reference to lawyers and trainees entered into rolls, registers and special lists, regulates the procedure leading to the imposition of penalties. The rules (Articles 50 et seq.) combine with the regulation on the election of special Boards (Article 50, paragraph 2) and the regulation on disciplinary proceedings under Article 50, paragraph 5, which have also been entrusted to the CNF for their drafting and adoption. These regulations have not been approved yet[1]. It is worth clarifying that, pursuant to Article 37, paragraph 1, there will be no changes in the (jurisdictional) phase of the appeal lodged to the CNF, which shall remain governed by Articles 59 to 65 of the Royal Decree No. 37 of January 22, 1934 (see below).

The sources currently applicable are the previous regulation of the legal profession (Royal Decree-Law No. 1578 of November 27, 1933) and Royal Decree No. 37 of January 22, 1934, which fully regulate the initiative and competence to initiate disciplinary actions (Article 38 of the regulation on the legal profession), the preliminary stage of the proceedings (Article 47, paragraph 2, of Royal Decree 37/1934), the form and content of the summons to appear before court for trial (Article 48, Royal Decree 37/1934), the composition and proper constitution of the judicial body (Article 43, Royal Decree 37/1934), the conduct of the hearing (Articles 49 and 50, Royal Decree 37/1934) and the judgment and decision phase (Article 51, Royal Decree 37/1934).

Since the proceedings are administrative in nature and do not constitute an exercise of special jurisdiction - unlike what happens for the appeal lodged before the CNF against the disciplinary measure - guarantees are limited, even though the national lines of decisions on points of law have contributed significantly to improve the implementation of written rules in a legal order and political context much different from the constitutional one and its natural evolution.

According to the Supreme Court of Cassation case law, "the disciplinary tasks carried out by the local Bar Councils, and the related proceedings, have an administrative and not judicial nature" – hence it is deemed that the current regulation is not in conflict with the provisions of the Constitution which guarantee access to justice. Nevertheless the implementation of the principles of good conduct and impartiality of the Administration under Article 97, paragraph 1, of the Constitution and the guarantees established by law on the administrative trial have allowed to strengthen the guarantees of the accused professional, even though in the framework of proceedings defined as administrative[2].

Furthermore, the National Bar Council did not hesitate to extend the guarantees of due process and fair trial to the aspects which are mostly characterized by the "judgment" function. It has ruled out, however, the possibility of lodging an appeal against the decision to initiate the proceedings, because it is an infra-procedural administrative deed, even though, for some years, the Supreme Court of Cassation deemed otherwise[3].

Moreover, even though the principle of the reasonable length of trial cannot apply, as well as the "related provisions" of Law No. 241/1990 and subsequent amendments, this exclusion is based on a systematic interpretation supporting civil rights "because the failure to envisage a final date for ending the disciplinary proceedings is basically due to the fact that they must be long enough to enable the accused person to fully develop his/her defence” – hence no deadlines are conceivable "other than those set to protect the right of defence, as well as the term of five years for the statute of limitations barring the disciplinary proceedings pursuant to Article 51 of Royal Decree-Law No. 1578/1933"[4].

The administrative nature gives rise to major consequences. Firstly, the principle whereby the Board composition cannot be changed does not apply to the disciplinary proceedings before the Bar Council, provided that the quorum for passing resolutions is respected[5]. The same holds true for the ban on reformatio in peius[6] (namely the prohibition on increasing sentence) and the principle of lawfulness under Article 25 of the Constitution, as well as the principle of favor rei (the so-called lenity rule) with specific reference to the provisions of the Criminal Code on the succession of laws over time[7].

7. The new disciplinary proceedings before the newly-established district disciplinary boards

Title V of Law No. 247/2012 deals with the new disciplinary proceedings. The most important innovations include the establishment of an ad hoc body called "district disciplinary Board" which meets the need – typical of all professional disciplinary proceedings (Presidential Decree No. 137/2012, cit.) - of separating the purely administrative functions of the bodies representing the various professions (namely the Lawyers’ Councils (COA), in the specific case of the legal profession) – from the disciplinary ones, so as to ensure the impartiality and fairness of the disciplinary body vis-à-vis members. In fact, these bodies – which are district-based and no longer strictly local bodies - become holders of the right to exercise the disciplinary functions and are composed of lawyers other than those who sit in the territorial Councils (Article 28). Moreover, with a view to defending this same right and principle, the judging board appointed from time to time for the individual proceedings cannot include members registered with the same roll or association as the accused person (Article 50, paragraph 3). Nevertheless, it is a body elected by the members registered with the district roll or association so as to preserve the typical domestic nature and vocation of the structure called upon to implement the rules of ethics and conduct with which the legal profession complies freely and democratically - through the National Bar Council.

The preliminary phase (known as "pre-proceedings investigation” under Article 58) is regulated in detail and ensures to the professional being subject to the proceedings wider defence and adversary system opportunities than those expressly provided for in the original regulations[8]. In fact, also the fact-finding and investigation activities taking place in this connection must be carried out in compliance with the adversary system and defence principle and the disciplinary judge appointed to investigate cannot gain information and/or collect evidence in the absence of the accused person or without allowing him/her to participate in this process. It is a clearly progressive choice compared to what deemed so far considering that - under the previous regulation in force - in the absence of specific regulatory indications, case law deemed that "the completion of a preliminary investigation to ascertain the facts being reported as disciplinary violations was possible and the activity carried out by the Board was not subject to the requirements and guarantees governing disciplinary proceedings, since the guarantee for the accused person was the notification of the initiation of disciplinary proceedings and the rights arising from the fact of examining the deeds and preliminary investigations and carrying out his/her defence"[9].

At the end of this phase, the investigating judge may ask the disciplinary Board (which works in plenary session) to dismiss the case or to confirm the charge. Hence a detailed notice is sent to the accused person.

The trial phase is regulated in detail along the lines of the criminal trial (Article 59, paragraph 1, subparagraphs e/h). Even the judgment and decision phase follows this model insomuch, after the decision "taken by majority vote, without the presence of the Public Prosecutor, the accused person and his/her counsel [...]”, “the operative part of the judgment is read immediately to the parties” (subparagraphs i and l)[10].

Also the “Relations with criminal proceedings" (Article 54) are regulated by clearly reaffirming, on the one hand, the autonomy of disciplinary proceedings, which "take place and are defined with autonomous and independent procedures and assessments” and, on the other hand, coordination whenever "deeds and information pertaining to criminal proceedings shall be acquired", thus envisaging - in this case - the possibility of adjournment or stay in proceedings. Finally the collaboration between disciplinary bodies and judicial authorities is reaffirmed, by envisaging a duty for the former to inform the latter "if details of an offence mandatorily prosecutable emerge from the facts judged in the disciplinary proceedings"[11].

8. The National Bar Council in the case law of the Supreme Court of Cassation and in the case law of the Constitutional Court

The position of the National Bar Council in the regulatory system is completely different: "when it takes decisions on disciplinary matters" it is a "special judge [...] still operating legitimately"[12]. Therefore "the proceedings before the National Bar Council have a judicial nature and end with a judgment issued in the name of the Italian people, which can be challenged before the Supreme Court of Cassation sitting en banc[13]”.

Furthermore, with specific reference to the CNF, there is no incompatibility or conflict with the constitutional system, nor with the one outlined by Articles 6 and 13 of the European Convention for the Protection of Human Rights. In fact, as to the former, “the rules regarding it, while respectively regulating the appointment of the members of the national Board and the proceedings before it, ensure – in relation to the method followed to elect the Board and the obligation for the proceedings to comply with the trial common rules and the role played by the Public Prosecutor - the proper exercise of the judicial function entrusted to said body on the matter, with regard to the independence of the judge, the impartiality and fairness of the judgments and the guarantee of the right to defence”. As to the latter, "the European Court of Human Rights (ECHR) has long recognized the requirement of the independence of the professional jurisdiction bodies, by emphasizing that the members of the professional councils participate in the trial not as representatives of the professional roll or association – hence in a position incompatible with the exercise of the judicial function - but on a personal basis – hence in an impartial, fair and unbiased position, as is the case with all judges - and do not issue judgments in cases involving their own members, but in disputes relating to people alien to the jurisdictional body"[14].

The Constitutional Court’s case law on the national professional councils as special judges, and particularly on the National Bar Council, goes along the same lines.

In its judgment No. 189/2001, the Constitutional Court resolved positively the issue regarding the nature of the CNF as special judge and hence its legitimacy to raise matters of constitutionality, by merely making reference to the case law of the Court itself (in particular, judgment No. 284 of 1986, which is one of the most complex and comprehensive on the matter)[15]. The decision-making tasks carried out by the National Bar Council easily overcome the test of the filter used to check the existence of the minimum jurisdictional requirements[16] which - once ascertained that the CNF can be assimilated to the "currently existing special jurisdictional bodies” (meaning at the time of the entry into force of the republican Constitution) (VI transitional provision of the Constitution) - allow to recognize the status of special judge and legitimacy to raise the issue of constitutionality[17]. This applies both to the subjective profile of the characteristics of the body and its position with respect to the dispute and to the objective profile with specific reference to the nature of the judgment issued.

From the subjective viewpoint, the following considerations can be made.

In its judgment No. 284/1986, the Constitutional Court reserves its right to assess - regardless of the lawmaker’s "review" power – whether, in the specific case, the proceedings taking place before a national professional Council established before the entry into force of the Constitution complies with the constitutional provisions and, in particular, as previously stated, with the principle of the independence of the judge and the principle of fully ensuring the adversary system in the proceedings.

From a subjective viewpoint, the concrete check of the existence of the jurisdictional nature of the judging body is based on the analysis of all the problematic aspects arising from the unique position the National Bar Council has in the legal system. One of these problematic aspects, namely the fact that the National Bar Council combines both administrative and judicial functions, does not seem to exclude its status as special judge. In fact, the Constitutional Court has reaffirmed that the fact of a body carrying out judicial tasks together with administrative tasks cannot exclude the unavoidable constitutional requirement of independence, in accordance with the provisions of Articles 101 and 108 of the Constitution[18].

Not even the fact that this body is elected can exclude the National Bar Council status as special judge. In the already quoted judgment no. 284/1986, the Constitutional Court has clarified that the criterion of being elected – which is provided for in Article 106, paragraph 2, of the Constitution - may well be combined with the requirement of independence and that account shall rather be taken of the concrete ways to select the members of the judging body (according to the current regulation of the legal profession, the mechanism for electing the members of the National Bar Council is based on the election by the members of the various Lawyers’ Associations, meeting at district level, who are in turn elected by the members registered with the Roll, and supplements a second-tier election system which, in fact, appears to be suitable for selecting candidates having such a profile as not to raise doubts about possible bias and interference in the exercise of their tasks. After all, the fact of having to judge people belonging to the same professional group does not necessarily entail the unconstitutionality of the disciplinary jurisdiction, as the Constitutional Court clarified when it stated that this fact does not affect the requirement of the judge independence and when it recognized the specific jurisdictional nature of the disciplinary section of the Higher Judiciary Council, two-thirds of which are judges[19].

9. The disciplinary proceedings before the National Bar Council

With respect to the objective profile of the functioning of this body, we can note that the particular characteristics of the proceedings leading to the judgment with which the National Bar Council decides the complaints lodged against the disciplinary measures adopted by the local Councils fully meet the requirements that the Constitutional Court is entitled to assess on a case-by-case basis. The reform has not changed the proceedings before the National Bar Council, which continue to be governed by Chapter IV of Royal Decree No. 37 of January 22, 1934 (Articles 59 et seq.).

Without entering into the merits of procedure, however, the adversary system is fully ensured by many provisions, as early as the initiation of the proceedings, starting with the filing of the appeal with the secretariat of the National Bar Council, which immediately notifies the other parties and the Public Prosecutor. The parties concerned may see the deeds and records, draft briefs and provide documents to be included in the dossier sent to the National Bar Council. The professional concerned may be assisted by a lawyer authorized to practice before higher courts (i.e. entered into the special register under Article 33 of Royal Decree-Law No. 1578 of November 27, 1933). Upon receipt of the appeal, the secretariat of the National Bar Council shall notify the Public Prosecutor’s Office at the Supreme Court of Cassation, which shall return it within fifteen days since receipt and inform the appellant and the other parties concerned that the documents will remain filed in the offices of the National Bar Council for ten days since the day following the one on which the Public Prosecutor shall return them. During said term, the appellant, the defence counsel and the other parties have the right to see the deeds and records, propose briefs and provide documents. The same holds true for the Public Prosecutor at the Supreme Court of Cassation. The decision with which the President of the National Bar Council appoints the reporting judge and sets the date of the hearing for discussion is immediately notified to the appellant and to the other parties, by specifying the date and time when the sitting takes place. The discussion of the appeal shall take place in a public hearing, at the Public Prosecutor’s presence, and the professional concerned may explain his/her reasons personally or through the defence counsel, after the report made by the reporting judge.

The appeal is decided without the presence of the parties, namely the accused person and the Lawyers’ Association whose measure has been appealed, and without the presence of the Public Prosecutor. In fact, while the original rule laid down that "the Public Prosecutor is present at the time of decision " (Article 63, paragraph 2, of Royal Decree No. 1934 of January 22, 1934), the Constitutional Court has declared unlawful the presence of the Public Prosecutor at the time of decision (since it is a breach of Article 24, paragraph 2, of the Constitution), considering that the accused person and his/her defence counsel cannot be present when the decision is taken. The Constitutional Court deems that the decision of the National Bar Council is "the most sensitive final phase of the proceedings and is the sole task of the judging body": precisely with a view to ensuring the independence of said body, the presence of the Public Prosecutor – who is party to the proceedings - is not needed since it may give rise to a situation of advantage for the Public Prosecutor with a clear impairment of the accused person’s right of defence"[20].

Also the characteristics of the decision on the appeal reaffirm the strictly judicial nature of the activity performed.

In fact, the decision takes up the form of a judgment rendered in the name of the Italian people, and has essential elements such as the indication of the subject of the appeal; the appellant’s brief; the conclusions of the Public Prosecutor – if any - the grounds on which they are based; the operative part of the judgment; the indication of the day, month and year in which it is rendered; the signature of the President and the Secretary; the publication by filing it with the secretariat of the National Bar Council; the immediate notification to the Attorney General at the Supreme Court of Cassation (who is also informed of the dates of the notifications to the other parties concerned) and especially the appeal of judgments before the joint divisions of the Supreme Court of Cassation, which provides the uniform interpretation of the law.

(Altalex, 29 May 2014. Article by Guido Alpa)

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[1] Until the time of adoption and publication in the Official Journal, pursuant to Article 65, paragraph 1, the proceedings shall be governed by the provisions in force and the related competence shall fall within the Lawyers’ Associations (COA). In particular, Article 65, paragraph 1, of Law No. 247/2012 allows to continue the exercise of the disciplinary function carried out by the Bar Councils in office until the establishment of the new disciplinary bodies, at the end of the regulatory implementation process by means of regulations. After all, with specific reference to the inspection powers conferred on the CNF over the newly-established district disciplinary boards, Article 63, paragraph 2, brings forward these powers in relation to the disciplinary proceedings underway within the Bar Councils: there is a clear regulatory will to avoid disruptions in the exercise of the functions (reference to Article 49 contained in the last-mentioned provision is a misprint, unfortunately not corrected in works of the Senate: in the original text of the bill , reference was made to Article 50 regarding the disciplinary body). Moreover, Article 65, paragraph 5, regarding the enactment within one year of the new code of ethics and conduct, lays down that the "new" rules of ethics and conduct may apply - if more favourable – also to the proceedings underway, thus implicitly recognizing the fact that, during the transitional phase, the disciplinary powers shall rest on the Lawyers’ Association (COA).

[2] The “overtly inadmissible issue, given the irrelevance of the parameter, namely the constitutionality of Articles 38-51 of Royal Decree-Law No. 1578 of November 27, 1933, and the provisions of Title II of Royal Decree No. 37 of January 22, 1934, raised with reference to the principle of due process and fair trial enshrined in Article 111 of the Constitution, demonstrates that this constitutional provision can be referred only to the judicial activity". See the National Bar Council decision No. 8 of February 20, 2013; Id, decision No. 10 of February 25, 2013. Along the same lines see the Supreme Court of Cassation (sitting en banc) judgment No. 26182 of December 7, 2006.

[3] National Bar Council, decision No. 105 of July 17, 2013. In this specific case, by complaining about excessive discretion power by the Lawyers’ Associations (COA) - due to the atypical nature of the fact having disciplinary relevance and the lack of a specific penalty - the accused person had raised the issue of the alleged unconstitutionality "of all the rules constituting the disciplinary mechanism owing to an infringement of Article. 111 of the Constitution. In accordance with the principle set out in the rule, however, the CNF deemed the issue of constitutional legitimacy inadmissible and manifestly unfounded.

[4] This is also based on the special and unique nature of the proceedings under consideration "specifically governed by the rules laid down in Articles. 38 and 45 - 50 of Royal Decree-Law No. 1578/1933 and Articles 47-51 of Royal Decree-Law No. 37/1934, which do not contain deadlines for the beginning, development and completion of the proceedings before the Bar Council (National Bar Council decision No. 103 of July 17, 2013. On the subject see also the National Bar Council decision No. 67 of May 7, 2013; Id., decision No. 76 of April 21, 2011, Id, decision No. 130 of November 10, 2005; Id, decision No. 174 of November 29, 2012; Id, decision No. 216 of December 23, 2009; Id., decision No. 76 of April 21, 2011; Id, decision No. 130 of November 10, 2005.

[5] See National Bar Council decision No. 98 of July 17, 2013.

[6] National Bar Council decision No. 86 of June 6, 2013.

[7] See the National Bar Council decision No. 124 of November 27, 2009. Nevertheless, , with a view to increasing guarantees , the Bar Council stated that "Although Article 25 of the Constitution can be referred only to real criminal penalties – so that the principle of lawfulness (with the related paradigms of the typical and mandatory case) do not apply to disciplinary penalties, the undoubted punitive nature of the latter must, however, lead to the implementation of the general principle of favor rei (the so-called lenity rule), since the full and unconditional retroactive nature of the of the abrogative law is actually justified by the requirement of substantial equality of treatment (Article 3 of the Constitution) (National Bar Council decision No. 152 of October 15, 2012. Along the same lines, see the National Bar Council decision No. 127 of October 27, 2008; Id , decision No. 113 of July 18, 2013. "Though being aware of the ongoing case law and lines of decisions, which have repeatedly reaffirmed that in disciplinary proceedings - which regard non-criminal offenses - the principle of lawfulness does not apply, it must indeed be considered that the undoubted punitive nature of the disciplinary penalty may lead to the implementation of the general principle of favor rei (the so-called lenity rule), due to the fact that the retroactive nature of the abrogative law would be justified by a primary need for substantive and constitutionally guaranteed equality".

[8] The rules laid down for the detection of the relevant district disciplinary Board to undertake the disciplinary action (the district with which the lawyer or the trainee is registered or the district in which the fact for which the action is taken occurred) and for the resolution of conflicts of jurisdiction delegated to the CNF do not change.

[9] See the National Bar Council decision No. 58 of April 10, 2013. Along the same lines, see the Supreme Court of Cassation (sitting en banc) judgment No, 28336 of December 22, 2011; Id., judgment No. 5072 of March 9, 2005.

[10] Pursuant to the following subparagraph m, "the statement of reasons for the decision shall be filed within thirty days, starting from the reading of the operative part of the judgment; a full copy of the it is notified to the accused person, to the Bar Council with which the accused person is registered, to the Public Prosecutor and to the Attorney General's Office at the court of appeal of the district where the district disciplinary Board issuing the decision is located. In case of complex decisions, the deadline for filing the statement of reasons may 'be extended up to doubling it, with a measure included in the operative part of the judgment”.

[11] It is worth noting the particular nature of the possibility of reopening the proceedings governed by Article 55 which provides for as follows: "1. The disciplinary proceedings concluded by final decision can be reopened:

a) when a disciplinary penalty is imposed and, for the same facts, the judicial authorities have issued a judgment of acquittal on grounds of no case to answer. In this case, the proceedings are reopened and the acquittal must be pronounced also at disciplinary level;

b) when the acquittal has been pronounced and the judicial authorities have issued a judgment of conviction for a voluntary and intentional offence based on facts relevant for determining the disciplinary responsibility, which have not been-assessed by the district disciplinary Board. In this case, the new facts shall be freely assessed in the reopened disciplinary proceedings”.

[12] See Supreme Court of Cassation (sitting en banc) judgment No. 26810 of December 20, 2007, cit.; ex pluribus, Supreme Court of Cassation (sitting en banc) judgment No. 6406 of April 23, 2004; judgment No.1229 of January 23, 2004; judgment No. 10688 of July 22, 2002; judgment No. 1904 of February 11, 2002. Along the same lines, see Constitutional Court judgment No. 110 of July 12, 1967; Id, judgment No. 114 of July 6, 1970 in its statement for reasons; Id, judgment No. 113 of March 2, 1990.

[13] Ibidem. See Supreme Court of Cassation (sitting en banc) judgment No. 187 of May 10, 2001; id. Judgment No. 5072 of April 2, 2003.

[14] Supreme Court of Cassation (sitting en banc) judgment No. 10875 of April 30, 2008.

[15] G. Colavitti, La legittimazione a sollevare questioni di costituzionalità e il principio pluralista. L’esercizio della professione di avvocato da parte di dipendenti pubblici con rapporto di lavoro a tempo parziale: un approccio dubbio al tema del conflitto di interessi, note to judgment No. 189 of June 11, 2001 of the Constitutional Court (June 4), in Giur. cost. No. 4/2001

[16] The term is now commonly used (see M. MARGARITELLI, I requisiti minimi della giurisdizionalità nell’esecuzione penale, in Giur. Cost. 1993, page 366 et seq., commenting on judgment No 53 of February 8-16 of the Constitutional Court, and S. BARTOLE, I requisiti dei procedimenti giurisdizionali e il loro utilizzo nella giurisprudenza costituzionale, in Giur. Cost. 1999, page 190 et seq., commenting on judgment No. 26 of February 8-11, 1999 of the Constitutional Court).

[17] According to the prevailing doctrine, the decisions of the local Bar Councils on disciplinary matters are taken in the exercise of an administrative power, whereas the proceedings which are initiated before the National Bar Councils,- as a result of the appeal lodged by the person concerned - at least those prior to the advent of the republican Constitution, with its ban on the establishment of special judges - are strictly judicial proceedings resulting in a judgment rendered in the name of the Italian people (A. PACE, Giurisdizioni speciali, procedimenti amministrativi contenzioni, giudici “a quo” (A proposito del procedimento disciplinare davanti ai Consigli dell’ordine degli avvocati e procuratori), note to judgment No. 110 of July 12, 1967 of the Constitutional Court, in Giur. cost. 1967, 1206 et seq). In accordance with this shared approach, the Constitutional Court noted that" ... unlike the individual Bar associations, when the National Bar Council is called upon to decide on appeals against the decisions adopted by these associations, it has a judicial function for the protection of a public law interest, which is external and superior to the interest of the professional group: this can be confirmed by the possibility of lodging appeals against the decisions of the National Bar Council before the Supreme Court of Cassation sitting en banc" (judgment No. 114 of July 6, 1970 of the Constitutional Court, in Giur. Cost. 1970, 474 et seq, 478).

In fact, for the same reasons, the Constitutional Court had ruled out the possibility for an individual Bar association – which had wrongly argued to have the status of judge a quo considering the powers falling upon the Public Prosecutor in the framework of the disciplinary proceedings before the Council itself to raise the issue of constitutionality. These powers must be more properly seen in the context of an activity of cooperation in the exercise of the administrative functions, carried out to protect an interest of the professional group, while "... when the proceedings are focused on a complaint or appeal, the Public Prosecutor’s functions are carried out for the purposes of protecting an interest outside that group, which is different and separate from the other pertaining to the professional association".

The Constitutional Court recognizes that the judicial nature of the decision-rendered by the National Bar Council on the appeal against the decisions of the individual Bar councils is connected with the superior need to protect public interests, whereas the activity performed by the local Councils at disciplinary level remains focused on the protection of the collective interests of the profession.

[18] Judgment No. 25 of January 22, 1976 of the Constitutional Court, in Giur. cost. 1976, page 88 et seq. ; judgment No. 49 of May 27, 1968 of the Constitutional Court, in Giur. cost. 1968, page 236 et seq.; judgment No. 284 of December 23, 1986 of the Constitutional Court, in Giur. cost. 1986, page 2290 et seq; judgment No. 326 of July 8, 1992 of the Constitutional Court, in Giur. cost. 1992 page 2676 et seq.

[19] G. Zagrebelsky, La sezione disciplinare del Consiglio superiore della magistratura come giudice a quo: possibili implicazioni, note to the judgment No, 12 of February, 1971, of the Constitutional Court, in Giur. cost. 1971, page 83 et seq.

[20] Judgment No. 27 of February 17, 1972 of the Constitutional Court, in Giur. cost. 1972, page 113 et seq.

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