Lawyers in Italy

Lawyers in Italy

Legal Professionals

Types of Lawyer

The law regulating the legal profession is the R.D.L. of 27 November 1933 n· 1578 converted into the Law of 22 January 1934 n· 36 which is known as the Legal Profession Law (in the following called LPF). Numerous amendments introduced later have very much changed the LPF. A new law, which is by now long overdue, is expected. A disegno di legge was considered in August 1998 by the Consiglio dei ministri which will make major changes to the Italian legal profession if adopted.

The legal profession traditionally is divided into three main professions, however the procuratore legale are now abolished. The law to implement this has been published in the Gazzetta Ufficiale.

Legal professions:

  • Avvocato (see below)
  • Praticante  (see below)
  • Procuratore legale  (see below)
  • Notaio (Notaire)  (see below)

Avvocato

Avvocato: that is, a person (formerly first a Procuratore Legale, who had practiced that legal profession for at least six years) who is admitted to the albo (roll or register) of the avvocati .

To appear in front of the so-called superior jurisdictions (Court of Cassation, Court of Auditors, Constitutional Court, Council of State (Consiglio di Stato), the avvocato must possess further qualifications and be listed in a special register. Each legal professional can undertake the defence of the party without any limitations with regard to the subject matter he normally deals with. This means that no “specialist” avvocati exist as a matter of law.

The new disegna di legge (agosto 1998), if adopted, will allow some avvocati to call themselves specialists (articolo 7)

The object of the professional activity is the assistance and counselling in judgment and in any other circumstance out of judgment of any interested party. It may be performed by professionals entered into the register as an Avvocato . If this is not so, there could exist an offence, the unlawful practice of the profession under art. 238 of the Criminal Code, whose provisions dictate a penalty of six months of detention or a fine from 200.000 Liras to one million.

Article 2 of the legge 23 novembre 1939 n.1815 which forbade the practice of law except in a Studio legale has been repealed by article 24 of legge n.266 of 7 August 1997. However the replacement law has not yet been adopted. It is expected to allow incorporated practice and partnerships between lawyers, and may even contemplate multidisciplinary practice. (Disegno di legge: agosto 1998).

Procuratore legale

A person who, after a certain period of practice, had successfully passed an exam arranged yearly by the Ministry of Justice (Ministero di Grazia e Giustizia). This profession has been abolished (Legge 24 febbraio 1997, n.27 GU 27 Febb. 1997). In future after their apprenticeships the would-be Italian lawyers will become avvocatistraight away.

In the past, noticeable differences existed between the activity permitted to the Avvocati as compared to the ones of the Procuratori Legali, but , pursuant the Law n· 406 of 1985, art. 4, the only difference was that while a Procuratore Legale may exercise his activity in his Court of Appeal district only, an Avvocato can practise in all the territory of the Italian Republic. As to the non juridical activity, this limitation did not apply even for the Procuratore Legale.

See Distinction between Avvocato e Procuratore in the description of Avvocato, above.

For Entry Requirements, see below.

PRATICANTE LEGALE (apprentice lawyer)

A university graduate in law who has passed the qualification test of the local Law Society (Consiglio dell’Ordine). See Entry Requirements below.

Entry Requirements

Art. 1 of no .1578/1939 provides that nobody can make use of the title of Avvocato or Procuratore and practice their functions if such a person is not registered in the relevant professional registers. In order to obtain the registration, a number of qualifications are necessary and the process is a rather lengthy one. The first requirement in order to be registered and be kept in the register, in addition to a university degree in Law, is an absolutely upright and blameless conduct.

To be qualified and registered as an “Avvocato” , one used to have to enrol on the list of Procuratori Legali first, but this profession has now been abolished.

The current conditions for such enrolment are that one must have:

  • Law Degree (see legal education)
  • A completed period of apprenticeship (see Training Period below)
  • State Examination. See Professional Examination below.

These are due to change again. Decreto legislativo 398/97 (17 November 1997) establishes the principle of specialised schools for the legal professions (scuola di specializzazione per le professioni legale) (art.16).

Professional Examination

The exams take place in the month of December of each year in all the appellate Courts (Art. 2 of the Law of 20 April 1989 n· 142). The board of examiners is appointed by the Ministry of Justice; in each board there are two lawyers, two magistrates, a university professor in law (art. 22 LPF as amended by the provisions of art. 1 of the Law dated 27 June 1988 n· 242).

The tests are written and oral.

The written ones are four and cover the following:

  • civil law and civil procedure;
  • business law;
  • criminal law and criminal procedure;
  • administrative law.

The subjects of the oral tests are instead:

  • roman law,
  • civil law,
  • business law,
  • criminal law,
  • constitutional law,
  • administrative law,
  • employment law,
  • ecclesiastical law,
  • processual civil law, and
  • processual criminal law.

The commission is appointed by the Ministry of Grace and Justice and comprises three magistrates, three avvocati, and a university professor with tenure. The candidates that pass the written test are admitted to the oral test. Lastly one can be registered in a special register in order to become qualified to dealing with the superior jurisdictions; this can again be obtained either by seniority or by passing another test.

By seniority, one is required to have practiced the activity for at least twelve (legge 1997/12, art. 4) years and then enter a request with the National Forensic Council which has to decide on such request.

The State exam can be taken every year in Rome, at the Grace and Justice Ministry by avvocaati with 5 yyears of experience. An avvocato who has practised his profession with another cassationist solicitor can be admitted to the exam provided that he can prove he worked with praise and good results in cases handled by the Court of Cassation. There are three written tests – drafting recourses for the Court of Cassation in civil, criminal and administrative matters – and one oral test. This consists in a discussion related to a subject under dispute in front of a Court.

Bailiffs

Information about Bailiffs in the European countries is provided here.

Notaries

This profession, is distinct from that of avvocato (lawyer) and is regulated by the Royal Decree of 10 September 1941 n· 1326. Information about Notaries in the European countries is provided here.

Other Issues

Mobility

Recent regulations and interpretations coming from the European Community, are modifying the forensic profession in Italy, permitting the other European lawyer colleagues, though still with some limitations, to practice the legal profession also in Italy.

Services: The first regulation in the subject matter has been the directive 77/249/CEE adopted in Italy into the Law dated 9 Fabruary 1982 n· 31, which permitted the free rendering of services by part of a legal foreign professional not residing in Italy registered in the Official register of the legal professionals of his country, only in non-judicial counselling.

According this regulation, professional qualification earned abroad was not recognized in Italy and it was necessary for the professional to regraduate and requalify in Italy.

Recognition of qualifications: A further step towards the complete liberalization of the profession in the Community countries has been the directive 89/48/EEC adopted in Italy with Decree Law no. 115/92 , which permitted the recognition of the professional qualifications obtained in other countries of the Community, in fact admitting foreign collegues to practice the legal profession of avvocato in Italy .

The adoption of the directive in Italy has been so far, incomplete, as the needed relevant regulations have never been promulgated. Till today, therefore, the Ministry has permitted to operate to professionals through decrees issued ad personam. The EC Commission has brought an Article 169EC enforcement action against Italy.

The promulgation of regulations is awaited. Draft rules indicate that the legal professional who intends to practice his profession in Italy must pass two tests one in writing and one oral both in Italian and both covering questions connected with everyday law practice. The decreti ad personam adopted have so far however required a very heavy diet of examinations

Aptitude test: The request for an aptitude test must be addressed to the Forensic National Council, thereupon the commission of examiners, comprising two magistrates, two lawyers and a university professor in jurisprudence shall convene within 60 days to fix the examination date.

Legal Education

The law degree takes a minimum of four years study. The law student is required to pass at least 26 examinations , 14 compulsory and 12 optional subjects.

The compulsory subjects are:

  • Civil law
  • Administrative Law
  • Commercial law
  • Comparative Law
  • Constitutional Law
  • Labour Law
  • International and
  • European Union Law
  • Criminal Law
  • Civil Procedural Law
  • Criminal Procedural Law
  • Roman law
  • History of Law
  • Jurisprudence
  • Public Finances

The grade scale is on 0-30, 18 being the minimum pass mark.

The final degree mark is calculated as a percentage between the number of the exams and the results obtained in each single exams

Note: many of the above was changed.

Legal Training: Training Period

The law graduate who intends to become an avvocato is requested first of all to enter the register. In order to do this, he has to:

  • file a request to the Law Society Office of the district where he resides together with
    evidence of his Italian citizenship (this condition cannot apply to EC nationals as a matter of EC law, and has been suppressed for others by the effect of the law of 6 march 1998) art. 35,
  • have an Italian law degree, and
  • be of an upright conduct.

Within thirty days from the request, the Law Society shall issue its decision. After one year of practice, the practitioners may request the qualification for legal representation, with the aim to perform activity of assistance and defence of the party with the district Pretura (and now also with the Justice of peace) for a period not longer than six years. In this case also, the request must be addressed to the Law Society and must include further documentation. After two years, the practioner that really has practiced legal activity, having obtained a certificate from the Law Society, can file a request to take an exam with Appellate Court in the district in which he has practiced the profession. This practice requirement will be reduced to one year once the new schoools of specialisation for the legal professions come into operation. (Scuole di specializzazione, see below)

See Professional Examination above.

Governing Bodies

They include:

  • Consiglio Nazionale dell’Ordine Forense (Roma)
  • Consiglio Nazionale del Notariato (C.N.N.)

Both national (Consiglio Nazionale del Notariato, National Board of Notaries) and local (Consigli Notarili Distrettuali, Notarial District Boards) associations are established by Law, and their members are elected democratically by the notaries themselves. The National Board of Notaries represents Notaries at a national level and has many functions, among them the proposal of the Notarial fee and the production of ethical rules. The Notarial District Boards holds the register of Notaries and has many functions concerning the regularity of the exercise of the profession.

The National Board of Italian Notaries (Consiglio Nazionale del Notariato, henceforth called C.N.N.) is a national representative entity of Italian Notaries, elected on a national basis. There are twenty members of the C.N.N. .

Following the Law 3rd August 1949, n. 577 (Creation of the National Board of Notaries and modifications to the rules about the administration of the Notaries National Retirement Fund (Cassa Nazionale del Notariato) modified by the Law 27th June 1991, n. 220, the C.N.N., whose headquarters are in Rome, is the Notaries National Guild (ordine).

The C.N.N., with a formal resolution, formulates the Notaries professional fees (honorarium, accessory rights, allowances and principles for reimbursement of expenses); this resolutions is submitted to the final approval of the Minister of Justice (Law 5th March 1973, n. 41).

The Board is in charge for a three year term and this expires when the newly elected members install themselves into office.

The Minister of Justice, after having verified that Law has been respected and when the results are definitive, proclaims the elected members and orders that their names be published on the Official Bulletin of the Italian Republic and in the Ministry’s Bulletin.

The C.N.N. auditing is done by an auditing board, formed by three active members and three substitutes, elected with the same procedure as for the C.N.N. from amongst the Notaries, with three electoral districts that include three areas of Italian territory.

The National Board of Italian Notaries has several commissions which, following the legal aims of the National Board, study the following issues: Private Law Commission, European Union Studies Commissions, Tax Law Commission, Historic Studies Commission, Legal Proposals Commission.

The C.N.N. used to send every day via e mail the legal news to the Notaries who had a reception device. Since 1st January 1999, the news is sent only by Intranet.

The C.N.N. has one of the most important Law libraries in Italy. Among its publications, it issues a magazine “C.N.N. Attività” and prints also all the studies made by its Private Law Commission.

Every year a National Congress is held, where usually there is a scientific theme concerning the legal topical questions. Each Congress adopts resolutions that are usually enforced during the following year by the C.N.N..

The C.N.N. is not a trade union; there is one (“FederNotai”), into the frame of the freedom of association.

Relevant Legislation

Author: J Lonbay, 2008, many changes

Lawyers in other European Countries

Resources

Notes

See Also

Further Reading

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