Access to justice is a right of citizens, and the lawyer is a professional who assists with his work and advises the customer reviews on the civil, criminal and administrative courts, but also in extrajudicial activities, from writing a letter or a complaint, the conclusion of contracts or participate in an Assembly.
Practice of the profession of lawyer is contingent upon graduation, to carry out a traineeship of not less than two years, and to the achievement of the enabling, through a State examination.
Professional law (RDL # 1578 of 11/27/1933) provides for the incompatibility of the legal profession with the business and with any employment (with the exception of teaching or use legal offices of public bodies), the principal ensure full autonomy and freedom of the advocate, which should not be interfered with – even from your client – in his career choices : the Attorney in fact, before starting the exercise of the profession, must pay the solemn oath that engages him to fulfill professional duties “with loyalty, honor and diligence for the sake of Justice and for the best interests of the nation”.
It’s not just words: in addition to the criminal law, the lawyer is actually subject to the disciplinary authority of the Board of the order (in the second degree of the National Council of the bar, and finally on the Supreme Court) in proceedings far from uncommon and where the penalty for the most serious cases, is the permanent disbarment.
Unlike the health profession, in which the doctor follows one or more specific postgraduate diplomas (e. g. in ENT, cardiology, etc.) at the end of specific courses, to the lawyer there are no qualifications that attests to the special training in a specific field.
If authorisation to practice allows indifferently to the lawyer to defend civil, criminal and administrative processes, the growing complexity of the different substantive and procedural rules causes every lawyer in practice dealing with only a few subjects, obtaining over the years and with the field exercise a real “specialisation”: we should not forget that the lawyer is obliged to constant professional updating (as frequently to special courses).
Understanding that many lawyers provide (with websites, information about his profession) the citizen can always contact the Bar Association, public institution responsible also for the supervision on the work of its members, who are obliged to refuse all orders that are not able to perform with adequate expertise.
The law (P.r.decree # 115/2002) provides that the costs of the process are covered by the State, to the citizens who have incomes below certain limits and the reasons do not appear unfounded. The income limit that allows access to patronage from the State is determined in € 11528.41 (UndicimilaCinquecentoVentOtto/41) to the household by DM Justice 7 October 2015 published on O.j. 186 of August 12, 2015.Using such conditions, the citizen may submit an application to the Council of the Bar Association, in order to obtain admission to legal status, and click the trusted lawyer among those enrolled in the appropriate lists.
Often it is not easy to predict the costs of a trial, because you can not know in advance of its complexity, the type of activities to which the defense may force, the number of hearings or witnesses to be heard, the number and complexity of pleadings.
It ‘not possible (requiring that its stipulation is put in writing):
– Agreed with the lawyer a flat fee prescribed;
– Agree on compensation related to the value of the property that the judgment tends to achieve (for example, 5% of the compensation for a car accident, or 2% of the value of a property in a case of cancellation of the purchase agreement);
– Agree, for the extra-judicial activities (p. Eg., Assistance for corporate meetings or Monthly) an hourly rate;
– Establish that the field must follow the minimum fees (or the average between minimum and maximum) of the scales forensic updated periodically by Ministerial Decree.
Travel expenses offsite (travel, food and lodging) are to be reimbursed, as well as documented expenses is important to know that today, missing the stamps judicial, at the beginning of a judgment must pay the cd “Unified tax”, an amount proportional to the value of the case.
If it comes to judgment for which is necessary for technical advice (assessment of damage to property or persons, investigation of defects in construction, etc.) It will be necessary to anticipate also the fee that the judge will settle in favor of the Advisor.
In most cases, the judge then condemn the party at fault to reimburse the successful party the costs: it is possible, however, that such reimbursement does not cover all of the cost actually incurred. If there is mutual unsuccessful or in the event of absolute novelty of the issue or change of the law in respect of matters subtle problem, the court may award costs between the parties, in part or in whole (Art. 92 last paragraph CPC).
In the relationship between client and lawyer is the fundamental relationship of trust: when it fails, it will be in the interest of both terminate the relationship.
The Civil Code (Art. 2237) provides for the customer the possibility to terminate the contract at any time for project work, which is the one that exists with the lawyer.
The only requirement for the client is the reimbursement of expenses incurred and payment of compensation for the work actually performed, with the exception of “lost profits” which – in the case other than the contract – is due from the customer.
It ‘good to remember that the lawyer has the right to hold “hostage” the documentation relating to the case until payment of the bill, in which case you can get the immediate attention of the Council of the Bar.
Finally, it must clarify that the lawyer may renounce the mandate given. In this case the defender will have a duty not to abandon the case and of keeping obligations until subingresso the new defender. On the other hand, the customer has a duty to promptly obtain a new lawyer without using instrumentally and in bad faith, the duty of care of legal precedent.
The workload of individual judges has gradually increased over the years and above all as a result of the economic crisis, which inevitably leads to an increase in litigation (think to spiraling of default in payment of sums of money). In addition, the suppression of several sub-offices and the concentration of hearings at the headquarters of the courts has led to a crowding and overlapping audiences no longer sustainable in the current state of investments for Justice.
The Law 24 March 2001, n. 89 rubricata “Forecast of fair compensation for breach of the reasonable time of the process and the amendment of Article 375 of the Code of Civil Procedure” (OJ 78 of 04.03.2001) Art. 2. Right to just satisfaction.
1. Who has suffered a pecuniary or non-pecuniary result of violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified under Law 4 August 1955, n. 848, in terms of failure to comply with the reasonable time referred to in Article 6, paragraph 1, of the Convention, is entitled to just satisfaction.
2. In assessing the breach of the judge evaluates the complexity of the case, the subject of the proceedings, the conduct of the parties and the judge during the proceedings, and for any other person called to concur or contribute to its definition.
2-bis. It is considered within the reasonable period referred to in paragraph 1 if the process does not exceed the three-year first degree, two years in the second degree, a year in proceedings concerning. For the purposes of calculating the length considering the process started with the filing of the application instituting the proceedings or with the service of the summons. It is considered within the reasonable period if the enforcement proceedings was completed in three years, and if the proceedings are concluded in six years. The criminal trial is considered to have commenced with the hiring of an accused, civil party or civilly liable, or when the suspect has had knowledge of the legal closing of the preliminary investigation.
2-b. It is still considered within the reasonable period if the judgment is defined irrevocably in a time not exceeding six years.
2-c. In the calculation it does not take into account the time in which the process is suspended and that between the day shall start the time for such an appeal and the same proposition.
2-d. It is not entitled to any compensation:
a) in favor of an unsuccessful convicted under Article 96 of the Code of Civil Procedure;
b) in the case of Article 91, first paragraph, second sentence, of the Code of Civil Procedure;
c) in the case of Article 13, first paragraph, first sentence, of Legislative Decree 4 March 2010, n. 28;
d) in the case of termination of the offense by the statute of limitations related to dilatory conduct of the party;
e) when the defendant has not filed a petition for accelerated criminal trial within thirty days after the passing of the terms referred to in Article 2-a;
f) in any other case of abuse of power trial that has led to an unjustified extension of the review timetable.
If the authorization to practice either allows the lawyer to take on the defense in civil, criminal and administrative, the increasing complexity of the various substantive and procedural regulations ensure that every lawyer in practice only deal with certain subjects, achieving over the years and with the exercise field a real “specialization” is not to be forgotten that the lawyer is obliged to a constant professional (with the frequency to special courses). Notwithstanding that many lawyers provide (with websites, information about his profession) the citizen will always turn to the Bar Association, a public body responsible to ongoing supervision on the work of its members, who are obliged to reject all the tasks They are not able to carry out with adequate expertise.
Art. 1176 paragraph 2 ° Cod. Civ. It provides that “In the performance of obligations related to occupational activity, diligence must be assessed with regard to the nature of the business.” The following Art. 2236 Cod. Civ. also it states that: “If performance involves problem solving itecnici special difficulties, the person undertaking the work is not liable for damages, except in cases of willful misconduct or gross negligence.”
Also today all lawyers must take out an insurance policy for civil liability.
With regard to specialization of attorneys must be said that the reform advocacy, contained in MD August 2015, n. 144 and laying down rules on provisions for the achievement and maintenance of the title of specialist lawyer, in accordance with Article 9 of the law 31 December 2012 n. 247, published in Official Gazette of 15 September 2015, n. 214 regulates the procedures for carrying out the training specialist lawyer setting the parameters and criteria against which to evaluate the experience of the professional area of specialization.
The new rules identify 18 areas of specialization (Article 1):
a) the right of family relationships, people and children;
b) agricultural law;
c) property rights, ownership, leases and condominium;
d) Environmental Law;
e) intellectual property law and the properties’ intellectuals;
f) commercial law, competition and corporate law;
g) the right of succession;
h) the right of enforcement;
i) bankruptcy and insolvency proceedings;
l) banking and finance;
m) tax law, tax and customs;
n) the right of navigation and transport;
or) labor law, trade union, social security and social assistance;
p) European Union law;
q) international law;
r) criminal law;
s) administrative law;
t) information technology law.
To obtain the specialist title, the lawyer must submit an application to the Bar Council of belonging, it checked regularly, will forward it to the National Forensic Council; Article. 6 of the Regulation provides, also, certain conditions for the submission of the application, including:
– Often successfully, for the past five years, the specialization courses (art. 7) or, alternatively, with proven experience in the field of specialization (art. 8);
– The absence in the three previous years of disciplinary definitive, different from warnings, resulting in a behavior produced in violation of the duty of competence or professional development;
– The absence, in the two previous years, withdrawing an earlier title of specialist.
The attorney specialist, every three years from the subscription list, declares and documents belonging to the Bar Council of the fulfillment of the obligations of continuing education in the field of specialization.
Article. 14, paragraph II of the New regulations for the organization of the legal profession (law no. 247/2012), on the subject of ‘professional mandate. Substitutions and collaborations’ states that: “The mandate for conducting activities’ professional staff even where it is granted to the lawyer member of an association or society ‘professional. With the acceptance of the lawyer assumes responsibility ‘unlimited personal, jointly with the association or the society’.
Lawyers can be represented by another lawyer, in charge also verbal, or by a practitioner authorized by written proxy.