Lex Mundi Global Attorney-Client Privilege Guide |
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Italy |
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(Europe)
Firm
Chiomenti
Contributors
Luca Ferrari |
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| Is the ACP recognized in your jurisdiction? | Under Italian law, there is not a general principle recognizing ACP. However, there are specific rules provided for by the Lawyer's Code of Ethics ("LCE") and Law of December 31, 2012, no. 247 regulating the profession of lawyer in Italy ("Law 247/2012"), while the Criminal Code ("CP"), the Code of Criminal Procedure ("CPP"), and the Code of Civil Procedure ("CPC") which regulate the exercise of certain privilege rights and confidentiality duties. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Except for limited circumstances (on which see below), there is no formal process of disclosure in civil proceedings. Parties must file in court their own exhibits on which they rely and cannot move for, or obtain, a generic disclosure of documents in the hands of the opposing parties. The motion for disclosure must clearly indicate a specific document (Art. 210 CPC) and explain the reason why this document is relevant and material for the final decision. Should this kind of motion be filed by a party to the litigation, the opposing party may challenge it on the ground that the documents requested are covered by legal professional privilege. Italy recently enacted some procedural rules, applying to litigation on private enforcement and on class actions respectively, which provide for some kind of disclosure process. Both the laws, however, clearly specify that correspondence between the client and the lawyer assisting in the litigation is privileged and there is no obligation to disclose it. Specifically, Art. 3 of Legislative Decree No. 3 of 19 January 2017, with which Italy implemented EU Directive 2014/104/EU of 26 November 2014, provides that: “In the actions for damages for infringements of the competition law provisions, upon receipt of a party's reasoned request,[…] the judge can order the parties or a third party to disclose relevant available evidence in accordance with the provisions of this Chapter. […] This is without prejudice to the confidentiality of communications between lawyers in charge of a party's representation and the client itself”. By the same token, Art. 840-quinquies of the Italian Code of Civil Procedure, as introduced by Law no. 31 of 12 April 2019 on class actions, provides that plaintiffs may move for disclosure of documents against the defendant, being however granted the confidentiality of any documents exchanged by the defendant and the lawyers assisting it in the litigation. In addition to the above, the LCE imposes on lawyers a duty to respect professional secrecy, specifying that confidentiality is both a right and a duty of attorneys and that confidentiality covers all the information obtained from the client in connection with a dispute or otherwise. Accordingly, if a lawyer is called as a witness, Art. 51(1) LCE provides that she or he shall "refrain, unless in exceptional cases, from testifying as a person of interest or witness about circumstances of which he has obtained information in the course of his professional activity, or which are related to any assistance in which [the lawyer] has been engaged". |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | Yes, there are certain specific rules applicable to criminal proceedings. In general, as anticipated, a lawyer cannot be obliged to testify within criminal proceedings about any information acquired by reason of his or her profession, including conversations and communications with his clients which are covered by professional secrecy (Art. 200 CPP). In addition to the above, Italian criminal procedure legislation provides that the lawyer cannot be obliged to disclose any document which is in his possession as a result of his professional activity if he officially states that the document is covered by professional secrecy (Art. 256 CPP). Both those provisions are focused on the notion of “professional confidentiality/secrecy”: although not expressly defined, such notion is commonly interpreted as limited to confidential information referred by the client to obtain legal advice. Aside from these exceptions, judicial authorities (and other authorities granted with analogous powers, such as for example, Consob or the Competition Authority) may ask or apprehend documents, letters and emails exchanged between attorney and client. There are anyway certain other specific exceptions referred to attorneys acting within criminal proceedings (that means: (i) proceedings/investigations already started; (ii) the attorney has been formally appointed as defense counsel). In particular, should the attorney act as defense counsel within criminal proceedings, it is forbidden to order inspections and searches aimed at gathering evidence at the offices of the lawyer, unless (i) the lawyer - or anybody permanently carrying out activities at his office - is under investigation for the same crime: in this case, such activities are permitted only to ascertain his own liability (not the client’s one), (ii) it results that at the firm are hidden things or persons or are available other traces of the crime (Art. 103 CPP). Article 103 CPP states also explicitly that the public prosecutor cannot seize any documents concerning the defense strategy at the lawyer’s premises. Moreover, lawyers acting as defense counsels in criminal proceedings cannot report to the judicial authority any information received by the client "not even in relation to crimes of which they have had news during the investigative activities carried out by them” (Art. 334-bis CPP). Lastly, dialogues between clients and defense counsels may not be wiretapped. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Not applicable. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Not applicable. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | To the extent they are employed by the company, they cannot assert privilege or professional confidentiality. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | To the extent they are employed by the company, in-house counsels are not allowed to be members of the Italian bar. |
| Is the common interest doctrine recognized in your jurisdiction? | No. There is no specific rule or doctrine in this respect. |
| How is the doctrine articulated in your jurisdiction? | See the previous response above. |
| Must a common interest agreement be in writing? | See the previous response above. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Currently, there are neither national rules nor standards in this respect. There are however arbitration rules applied by certain arbitration chambers regulating litigation funding. For instance, Article 43 of the rules of the Chamber of Arbitration of Milan, the main arbitration body in Italy, provides that: “1. The party that is funded by a third party in relation to the proceedings and its outcome shall disclose the existence of the funding and the identity of the funder. 2. Such disclosure shall be repeated along with the proceedings, until its conclusion, where supervening facts so require or upon request by the Arbitral or the Secretariat.” |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No cases involving litigation funding in Italy have yet been published at the time of writing. |
| Is the crime-fraud exception recognized in your jurisdiction? | Since, as said, there is not a general principle recognizing ACP, neither a crime-fraud exception could be applicable. It is worth noting that the above described professional secrecy (which allows counsel to abstain from testifying and providing certain documents/information obtained by the client) may be waived by the attorney to prevent the commission of a particularly serious crime (Art. 28 Paragraph 4 of the LCE). In any event, the disclosure must be limited to what is strictly necessary for the protected purpose. As a consequence, the attorney who in such cases reveals secret information may not be held liable for the crime provided for by article 622 CP, which sanctions the unlawful disclosure of professional secrets. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Please see the response above. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Please see the response above under section A.2. |
| What are the elements of the protection in your jurisdiction? | Not applicable. |
| Does your jurisdiction recognize an accountant-client privilege? | Rules on privilege regarding chartered accountants and clients are substantially the same as those regarding attorneys. |
| Does your jurisdiction recognize a mediation privilege? | Yes, according to Articles 9 and 10 of Legislative Decree no. 29 of March 2010, regulating mediation, provided that both the mediator and the parties are bound by confidentiality obligations with respect to any document, information and statement used or made during the mediation process. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, to the extent settlement negotiations are between lawyers. |
Lex Mundi Global Attorney-Client Privilege Guide
Under Italian law, there is not a general principle recognizing ACP. However, there are specific rules provided for by the Lawyer's Code of Ethics ("LCE") and Law of December 31, 2012, no. 247 regulating the profession of lawyer in Italy ("Law 247/2012"), while the Criminal Code ("CP"), the Code of Criminal Procedure ("CPP"), and the Code of Civil Procedure ("CPC") which regulate the exercise of certain privilege rights and confidentiality duties.
Except for limited circumstances (on which see below), there is no formal process of disclosure in civil proceedings. Parties must file in court their own exhibits on which they rely and cannot move for, or obtain, a generic disclosure of documents in the hands of the opposing parties. The motion for disclosure must clearly indicate a specific document (Art. 210 CPC) and explain the reason why this document is relevant and material for the final decision. Should this kind of motion be filed by a party to the litigation, the opposing party may challenge it on the ground that the documents requested are covered by legal professional privilege.
Italy recently enacted some procedural rules, applying to litigation on private enforcement and on class actions respectively, which provide for some kind of disclosure process.
Both the laws, however, clearly specify that correspondence between the client and the lawyer assisting in the litigation is privileged and there is no obligation to disclose it.
Specifically, Art. 3 of Legislative Decree No. 3 of 19 January 2017, with which Italy implemented EU Directive 2014/104/EU of 26 November 2014, provides that: “In the actions for damages for infringements of the competition law provisions, upon receipt of a party's reasoned request,[…] the judge can order the parties or a third party to disclose relevant available evidence in accordance with the provisions of this Chapter. […] This is without prejudice to the confidentiality of communications between lawyers in charge of a party's representation and the client itself”.
By the same token, Art. 840-quinquies of the Italian Code of Civil Procedure, as introduced by Law no. 31 of 12 April 2019 on class actions, provides that plaintiffs may move for disclosure of documents against the defendant, being however granted the confidentiality of any documents exchanged by the defendant and the lawyers assisting it in the litigation.
In addition to the above, the LCE imposes on lawyers a duty to respect professional secrecy, specifying that confidentiality is both a right and a duty of attorneys and that confidentiality covers all the information obtained from the client in connection with a dispute or otherwise. Accordingly, if a lawyer is called as a witness, Art. 51(1) LCE provides that she or he shall "refrain, unless in exceptional cases, from testifying as a person of interest or witness about circumstances of which he has obtained information in the course of his professional activity, or which are related to any assistance in which [the lawyer] has been engaged".
Yes, there are certain specific rules applicable to criminal proceedings.
In general, as anticipated, a lawyer cannot be obliged to testify within criminal proceedings about any information acquired by reason of his or her profession, including conversations and communications with his clients which are covered by professional secrecy (Art. 200 CPP).
In addition to the above, Italian criminal procedure legislation provides that the lawyer cannot be obliged to disclose any document which is in his possession as a result of his professional activity if he officially states that the document is covered by professional secrecy (Art. 256 CPP).
Both those provisions are focused on the notion of “professional confidentiality/secrecy”: although not expressly defined, such notion is commonly interpreted as limited to confidential information referred by the client to obtain legal advice.
Aside from these exceptions, judicial authorities (and other authorities granted with analogous powers, such as for example, Consob or the Competition Authority) may ask or apprehend documents, letters and emails exchanged between attorney and client.
There are anyway certain other specific exceptions referred to attorneys acting within criminal proceedings (that means: (i) proceedings/investigations already started; (ii) the attorney has been formally appointed as defense counsel).
In particular, should the attorney act as defense counsel within criminal proceedings, it is forbidden to order inspections and searches aimed at gathering evidence at the offices of the lawyer, unless (i) the lawyer - or anybody permanently carrying out activities at his office - is under investigation for the same crime: in this case, such activities are permitted only to ascertain his own liability (not the client’s one), (ii) it results that at the firm are hidden things or persons or are available other traces of the crime (Art. 103 CPP).
Article 103 CPP states also explicitly that the public prosecutor cannot seize any documents concerning the defense strategy at the lawyer’s premises.
Moreover, lawyers acting as defense counsels in criminal proceedings cannot report to the judicial authority any information received by the client "not even in relation to crimes of which they have had news during the investigative activities carried out by them” (Art. 334-bis CPP).
Lastly, dialogues between clients and defense counsels may not be wiretapped.
Not applicable.
Not applicable.
To the extent they are employed by the company, they cannot assert privilege or professional confidentiality.
To the extent they are employed by the company, in-house counsels are not allowed to be members of the Italian bar.
No. There is no specific rule or doctrine in this respect.
See the previous response above.
See the previous response above.
Currently, there are neither national rules nor standards in this respect.
There are however arbitration rules applied by certain arbitration chambers regulating litigation funding. For instance, Article 43 of the rules of the Chamber of Arbitration of Milan, the main arbitration body in Italy, provides that: “1. The party that is funded by a third party in relation to the proceedings and its outcome shall disclose the existence of the funding and the identity of the funder. 2. Such disclosure shall be repeated along with the proceedings, until its conclusion, where supervening facts so require or upon request by the Arbitral or the Secretariat.”
No cases involving litigation funding in Italy have yet been published at the time of writing.
Since, as said, there is not a general principle recognizing ACP, neither a crime-fraud exception could be applicable.
It is worth noting that the above described professional secrecy (which allows counsel to abstain from testifying and providing certain documents/information obtained by the client) may be waived by the attorney to prevent the commission of a particularly serious crime (Art. 28 Paragraph 4 of the LCE). In any event, the disclosure must be limited to what is strictly necessary for the protected purpose.
As a consequence, the attorney who in such cases reveals secret information may not be held liable for the crime provided for by article 622 CP, which sanctions the unlawful disclosure of professional secrets.
Please see the response above.
Please see the response above under section A.2.
Not applicable.
Rules on privilege regarding chartered accountants and clients are substantially the same as those regarding attorneys.
Yes, according to Articles 9 and 10 of Legislative Decree no. 29 of March 2010, regulating mediation, provided that both the mediator and the parties are bound by confidentiality obligations with respect to any document, information and statement used or made during the mediation process.
Yes, to the extent settlement negotiations are between lawyers.