Lawyers, reform in the final sprint

The current legislation (Law 247/2012) reserves to lawyers the assistance, representation and defence in proceedings before all courts and in ritual arbitration procedures. The draft enabling act, after amendments introduced in committee, specifies that they may only be performed by members of the bar:

Or the activities of assistance, representation and defence in proceedings before all courts, in ritual arbitration proceedings, in assisted negotiation and in compulsory and court-mandated mediation proceedings;

Or the professional activity of providing legal advice and out-of-court legal assistance, where related to court activities, if carried out in a continuous, systematic and organised manner, with the exception of expressly identified competences relating to specific fields of law provided for by law for the practitioners of other regulated professions.

Within the scope of the out-of-court legal advice and assistance activity, however, it shall be permitted to establish employment relationships or to enter into contracts for continuous and coordinated work, in the sole interest of the employer or of the person in whose favour the work is performed.

The committee also approved an amendment on the subject of capital partners, according to which the distribution of profits must not lead, either directly or indirectly, to interference with the autonomy, independence and decision-making freedom of professional partners in the practice of law.

Not just companies. The reform intervenes decisively on the subject of the collective practice of the profession, providing for the regulation of networks between lawyers or with other professionals. These may be networks-contract or networks-subject; the latter will have legal subjectivity and will have to be established by public deed or authenticated private deed, which will have to stipulate the presence of a common body and of the patrimonial fund.

Also responding to the need to provide regulation for the various forms in which the practice of the profession takes place is the delegation to organically regulate the regime of mono-contract or continuous collaboration. The target are lawyers who practice in favour of another lawyer, a professional association, a network of lawyers or a multidisciplinary network or a company of lawyers, in return for remuneration and the aim is to facilitate access to the labour market by the individual professional, safeguarding his autonomy, freedom and intellectual independence and judgement, as well as the right to a congruous remuneration proportionate to the quantity and quality of the service rendered.

The reform also relaxes the incompatibility regime. In fact, it is provided that the exercise of the profession is compatible, inter alia, with the office of partner with unlimited liability or director of partnerships - if the object of the company's activity is limited to the administration of personal or family assets - and with the office of sole director, managing director, president or liquidator of the governing bodies of companies.

Main innovations

Reserved activities

The reform delegates the Government to define the professional activities reserved to lawyers. The text specifies that these must include assistance, representation and defence in proceedings before the courts, in ritual arbitration, in assisted negotiation and in compulsory and court-mandated mediation. The professional activity of legal advice and out-of-court legal assistance, connected with judicial activity and carried out in a continuous, organised and systematic manner, is also the responsibility of lawyers.

Compensation

The reform reaffirms the principle of free agreement between the parties on the lawyer's fee; however, the rules on fair compensation must be respected. The fee must be commensurate with the quantity and quality of the service and may also be parameterised to the achievement of the objectives pursued.

Aggregations

The text provides that professional activity may be exercised collectively through professional associations, companies between lawyers or through the new professional networks. The latter may be between lawyers or with other professionals: multi-disciplinary networks may have as their object the pursuit of legal activities only if at least two lawyers participate in them. As regards companies between lawyers, it is stipulated that at least two-thirds of the share capital and voting rights must be held by lawyers or by lawyers and other professionals; non-professional partners are only admitted for technical services or investment purposes and the majority of the members of the management body must be lawyers.

Monocommittance

The bill also deals with lawyers who practise in favour of another lawyer or a professional association in return for remuneration. For this reason, it delegates the Government to organically regulate the profession of lawyer rendered on a mono-contract or continuous collaboration basis.

Incompatibility

The text aims to revise the regime of incompatibilities with the exercise of the legal profession. In particular, it is envisaged that lawyers may hold the office of unlimited partner or director of partnerships if the object of the company's activity is limited to the administration of personal or family assets; in addition, lawyers may hold the office of sole director or managing director, of president or liquidator of the administration bodies of joint-stock companies, cooperatives or public capital companies, corporations and consortia and the office of condominium director.

Internship

As for the traineeship, the reform provides that it lasts 18 months and consists of practice in a lawyer's office and attendance, for 12 months, of professionally oriented training courses organised by the bar councils through the forensic schools or by entities accredited by the Cnf and the specialisation schools for the legal professions.