Legitimate suspension of lawyer convicted only in first instance

Long gone are the days when there was themandatory suspension for criminal bias of disciplinary proceedings against a lawyer. Acknowledging the orientation previously expressed by the National Bar Council, Article 54 of the new forensic professional law (Law 247 of 2012), applicable since 1 January 2015, has provided that the relationship between the disciplinary proceedings against a lawyer and the criminal proceedings concerning the same facts as those against the accused lawyer in the former are conceived in terms of mutual autonomy, so that only exceptionally may an optional suspension of the disciplinary proceedings, limited in time, be ordered if the disciplinary court considers it essential to acquire evidence that can only be learned from the criminal proceedings (Cassazione Sezioni unite no. 30650/2023; Joined Sections 7336/2021).

Maintaining the principle of the so-called double track, the case law has, however, clarified that the finding, made with an irrevocable criminal judgement of acquittal, that "the fact does not exist" or "the defendant did not commit it" has the effect of a judgement, precluding an autonomous assessment of the same facts in the disciplinary context, whereas the autonomy of the disciplinary assessment is not affected when at the outcome of the criminal trial the various acquittal formulas "because the fact does not constitute an offence" or "because the fact is not envisaged by law as an offence" have been adopted (Supreme Court S.U. 12902/2021).

However, the problems become even more thorny and complicated when in disciplinary proceedings the measure of provisional suspension from practising the legal profession is adopted against an accused lawyer (Article 60 of Law 247/2012 and Article 32 of the CNF Implementing Regulation no. 2/2014) following a criminal conviction pronounced at first instance, especially when a provisional disqualification has already been adopted in criminal proceedings. 2/2014) following a criminal conviction pronounced at first instance, especially when a precautionary prohibitory measure has already been adopted in the criminal proceedings as well, and the temporal sum of the two measures imposed results in exceeding the maximum duration (of one year) provided for by Article 60, paragraph 3, Law 247/2012.

The issue was addressed in the Order of the Supreme Court, United Sections, of 1 May 2025, no. 11464, (President D'Ascola, rapporteur Marotta), which, on the one hand, ruled out the violation of the European principle of ne bis in idem, given that the measure adopted in criminal proceedings and the one adopted in disciplinary proceedings have different nature, different ratio and different purpose; on the other hand, it offered a systemic interpretation of Article 60 of Law 247 of 2012, which, in so far as it refers to a 'sentence of not less than three years' imprisonment', does not require the prequirement of the irrevocability of the criminal sentence.