Negotiations in Italy: Are Lawyers Taking Over the Role of Judges?

During the final days of July 2019, the Italian Government discussed at length  an extensive reform of the judiciary system that involves, among other matters, the strengthening of the so called negotiation assisted by lawyers.

Such negotiation had been initially introduced by the law n.162/2014 as mandatory for specific matters, consisting in pre-trial negotiation to be carried out between the parties involved, assisted by their own lawyers as their representative, with the aim of finding an agreement in order to avoid the trial of action.

The reform recently discussed, even if it is still in the form of a draft of a delegated law, makes relevant modifications to the above-mentioned law. Indeed, it extends the applicability of the negotiation to labor disputes and family related issues, but the most important aspect of the draft is the power that is conferred to the lawyers involved in the negotiations.

The lawyer, who will be entitled to carry out pre-trial investigation activity, according to the draft law, will have the power to make inquires to third parties regarding relevant facts, and to request the counterparty to render statements, in or against his/her/its favor, and recording such declaration in writing, with the purpose of obtaining an “extra judicial confession”.

It shall also be noted that those who render false declarations to the lawyer or refuses to reply to the lawyer’s inquiries, will be subject to penalties under the criminal law. In addition, the lawyer who will be involved in the negotiation will get an increase of his/her fees equal to a  maximum of 30%.

The importance of this reform lays in the fact that the records and findings emerged during the pre-trial investigation activity will be used as evidence during the trial before the judge. Hence, the lawyer will, within certain limits, acquire certain powers and functions that until now, have been reserved exclusively to the judge.

The reason why such activities were attributed only to judges is to guarantee the complete impartiality during the collection of evidence, the judge would then have the power to evaluate such evidence and guarantee that they haven’t been collected with abusive means.

In case of abuse committed by the lawyer during the pre-trial negotiation procedure, the judge will be entitled to apply disciplinary measures, based on the fact that this type of behavior will be considered as a major disciplinary offence.

D&P will keep you updated of any further changes on this matter, the process of approval of the draft by Parliament and any future legislative decrees enacting delegated law,  D&P will remain at your full disposal for any query you may have.

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