THE LEGAL PROFESSION - AND A LOOK AHEAD
A. Legal Profession
The Italian Legal Tradition
The Italian Legal Profession
1 Introduction
If one approaches the Italian legal profession from the direction of its counterpart in England and Wales, what one encounters will probably appear very unfamiliar. The lawyer or law student who is acquainted with the structure of the profession in England and Wales is used to the dominant professional division being between barristers and solicitors. The solicitor is the lawyer who a client approaches to make a will, execute a conveyance of a house or advise in relation to matrimonial difficulties. He is also the lawyer whom one employs to defend one in the magistrates' courts and possibly to bring or defend an action in the County Court. However, to be defended in the Crown Court on a more serious criminal charge, or to be represented in the higher civil courts, a barrister will be instructed. The barrister will receive his instructions through a solicitor, and likewise if specialist advice is required outside of the context of litigation, the services of a barrister may be called upon. The barrister is seen as a specialist or consultant, as well as being a professional advocate. The solicitor is more in the mode of a general practitioner. It is only in the last quarter of a century that solicitors have begun to win the right to appear before the higher courts and to be considered as candidates for judicial office. Although they have acquired such rights, it is still rare for a solicitor to be appointed directly to the High Court bench. High Court judges are still almost exclusively appointed from among the ranks of practising barristers. Judges are usually approaching fifty years of age when appointed; senior judges in the Court of Appeal and the House of Lords are almost invariably in their sixties.
In Italy as in other civil law countries, the situation is markedly different. To begin with, the great professional divide is not between barristers and solicitors, but between practising lawyers and magistrates. Those who choose to practise law by advising clients and appearing for them in court eschew forever the possibility of a career on the bench. A judicial vocation must be recognized early; all judges must be under forty at the time of their initial appointment. The magistrates form a distinct professional class employed by the State, in effect a branch of the civil service. Practising lawyers are in business on their own account. The magistrates comprise the judicial magistrates who hear and determine cases before the courts, but also include those who work in the pubblicoministero, the investigating magistrates who inquire into crimes and initiate and prosecute all criminal proceedings. The practising profession is divided into procurators and advocates, which two occupations are not mutually exclusive. The temptation to equate procurators with solicitors and advocates with barristers should be resisted. Most advocates are also procurators, and most procurators proceed in a short while to become advocates.
Among the class of practising lawyers should also be included the notaries. They have very important functions in civil law systems where they form a distinct professional caste. Although there are notaries public in England and Wales, their role is nowhere as extensive nor their position so important as that of their counterparts in the Italian republic. While most notaries in England and Wales are also practising solicitors, in Italy a notary may not be a procurator or advocate.
Having made these initial points concerning the structure of the Italian legal profession, one can proceed to consider the work of these various branches of it. First, however, it is as well to recognize certain common qualifications for entry into the legal professions. Thus, in all cases, the prospective lawyer must be an Italian citizen, must have attained the age of 21 and be in possession of all civil rights, must have an unblemished character and must not follow a range of other professional activities from journalism to the priesthood. Nor must a prospective notary, magistrate or practitioner belong to any other branch of the legal profession. In all cases, the prospective lawyer must have obtained a law degree from a recognized Italian university.
2The Laurea in Giurisprudenza
To acquire an Italian law degree, the laurea in giurisprudenza, a student must study for at least four years at the law faculty of an Italian university. Most students take advantage of the flexible nature of university study in Italy, and take longer than this minimum period to complete their degrees. In Italy, the university year begins in November and continues until May, with short breaks for Christmas and Easter. Examinations are held at the end of the academic year in May and June, with a further sitting of examinations in September. The September examinations are not resits for candidates who failed earlier in the year. Rather students are permitted to defer examination in one or more subjects studied until later in the year if they believe this is in their best interests. Students may even defer examination in a subject studied in one year until a later year of their course.
The system of tuition is also markedly less structured than that given in a British university. Teaching is by means of large lecture classes, which all students reading a course may, but need not, attend. The lecturer will probably be responsible for that course and that course alone. He will usually give three hour-length lectures in that course every week. While he will usually be prepared to see students with problems in the immediate aftermath of his lectures, he will not usually be available to see students at other times. Indeed, he is unlikely to be at the university at other times. Many professors do not reside in the university city in which they hold their chairs. Many are leading practitioners of the law, as university teaching does not preclude practice as an advocate, procurator or notary. There are no tutorial or seminar classes as a rule in Italian law faculties.
To obtain a degree, students must study a total of twenty-seven subjects. The last of these is the preparation of a thesis on a legal subject. The other twenty-six may be divided into compulsory subjects and options. The compulsory subjects are Roman law, Roman Legal History, Italian Legal History, Constitutional law, Administrative law, Criminal law, Criminal Procedure, Civil law, Civil Procedure, Commercial law, Labour law, political economy, public finance and taxation, international law, ecclesiastical law, the philosophy of law and private law. Options are then chosen from lists including subjects such as Canon law, Comparative law, Regional law, and the like. The content of the degree is much less prescriptive in terms of subjects to be studied than it was prior to the reforms of 1970. These reforms were the result of the student unrest which disrupted university life in much of Europe in the spring and summer of 1968. The provision of optional subjects, in particular, is the result of these reforms.
After a student has studied each of these subjects, an examination must be taken in it. The examination is conducted orally by three examiners, although it is not uncommon for only two to be present. Each student is questioned on the subject for ten to fifteen minutes. There is no choice of questions. At the end of the examination, the examiner proposes a mark on a scale from 0 to 30. The pass mark is 18. Marks in the upper 20s are deemed good. An outstanding student may be awarded 30 e lode, 30 and praise. A student who is unhappy with the result may choose not to have it recorded, preferring to sit the examination again at a later date in order to improve his performance. This practice is nowadays being discouraged. Upon graduation, the aspiring lawyer has a choice regarding which branch of the profession to enter. The choice lies between becoming a notary, following the path of qualification that leads from procurator to advocate, or deciding to become a magistrate. All three courses involve further examinations, but the remaining steps are not as extensive as those which face the English law graduate who wishes to become a barrister or a solicitor. Nor can a non-law graduate proceed to take those remaining steps by any other route than acquiring a law degree.
3. Notaries
One choice that is open to the Italian law graduate is to become a notary. If this is his wish, then the law graduate, provided he is over twenty-one but under fifty, has an unblemished character and is eligible for service as a juror, must register with the Notarial Council of a circondarioand undertake a period of apprenticeship in a notary's office, at the end of which the admission examinations will be taken. In each year, there will only be a certain number of vacancies for notaries, as the profession is controlled by the State through the Ministry of Grace and Justice. Each circondario is allocated a fixed number of notaries. The number of successful candidates cannot exceed the vacancies which exist in any given year among that fixed number.
Three of the examinations consist of written papers. These focus on very important aspects of a notary's work, namely, transactions inter vivos - such as the transfer of land or a car or a ship, the making of a will and a non-contentious legal process. In addition, the candidate must take three oral examinations: one in civil and commercial law; one in notarial records and organization, and the last in the taxation of notarial transactions. Those who pass the examinations are placed in order of merit, and the highest placed candidates succeed in obtaining employment. Those who pass but are not successful in gaining a place in the profession are allowed to take the examinations in subsequent years, when for their perseverence they are granted two extra marks in token of their previous merit. The successful candidates are able to commence practice in an assigned locality. upon their taking an oath of office and surrendering a bond to protect against any malpractice on their part. They receive the official seal which is central to their work from the Notarial Council, to whom they give a specimen of their signature.
In practice, the notary is responsible for two basic forms of work. Firstly, he acts as a public official, responsible for authenticating documents which constitute absolute proof that certain transactions have taken place. Thus, the transfer of immoveable property in the Italian republic must be executed by means of a notarially authenticated deed. Such a deed is the only permissible evidence that the transfer has taken place and is conclusive evidence of the fact. A notary authenticates the transfer by drawing up a deed according to a standard from, which deed he authenticates by sealing it with the official seal consigned to his custody and witnessing the sealing with his signature. Thereafter, the transfer can only be challenged by quereladi falso, the action which claims that the deed is a forgery. If the deed is accepted as genuine, then nothing that it authenticates is open to query.
The notary also authenticates in this manner other transactions concerning immoveables, for instance documents witnessing the granting of immoveable property as security for a loan - a hypothec, or documents bearing conclusive witness to the granting of interests over land such as rights of way. Standard forms are again used for these purposes. Notarial authentication is also required for the transfer of what Italian law terms registrable moveables, namely, cars, boats and planes.
4. Legal Practitioners : Advocates and Procurators
Another choice which is open to the Italian law graduate who wishes to pursue a legal career is to enter legal practice as a practising procurator and/or advocate. Unlike certain civil law countries, such as Spain, it is possible to practise in Italy both as a procurator and as an advocate; indeed, becoming a procurator is for most practitioners but a step on the road to eventual qualification as an advocate as well. The normal progression in this branch of the legal profession is to qualify first as a procurator and then to proceed in a few years to qualify as an advocate.
To embark upon this career progression, a law degree from an Italian university is an essential qualification. The graduate must also be an Italian citizen, have an unblemished civic record and be resident in the judicial district within which he or she wishes to practise. These branches of the profession are not open to men of commerce, ministers of any religion, professional journalists nor employees in the public sector, excepting university professors and schoolteachers. Notaries and magistrates are also barred from this kind of legal practice.
The aspiring legal practitioner must first of all join the law office, the studio legale, of a qualified procurator, where he becomes what is called a praticanto. He will usually remain such for a period of at least two years and possibly longer until he is ready to take the examinations for admission to the profession of procuratore. During his second and any subsequent years as a praticanto, he will however be allowed to appear before the pretura of the mandamento where he is training. At this stage, he is known as a praticantoabilitato.
The examinations for admission to the profession of procuratore consist of written papers on civil, criminal and administrative procedure. If successful, the entrant takes an oath swearing loyalty, honour and diligence in the performance of his duties and his name is entered in the register of procurators kept by the guild, the ordinedeiarvocati e procuratooi, of the circondario in which he is resident and within which he is now permitted to practise his chosen profession. A procurator is limited to practising within the circondario of the Tribunale where he is registered.
A procurator is only allowed to transact certain kinds of legal business. In essence, he is allowed to perform certain functions or tasks in place of his client, but not to interpose his judgement for that of the client. Thus, if the client has to make an appearance in court, the procurator can register that appearance on his behalf. If authorized by the client so to do, he may sign a document in the client's place. He is not however allowed to substitute his idea of what is in the client's best interests for that of the client, nor to exercize any discretion on the client's behalf. He cannot argue a case in court for his client nor decide tactics with regard to the conduct of litigation in which the client is involved. All such functions which involve the exercize of a professional judgement on the client's behalf are the preserve of the advocate and are barred to the mere procurator.
Mere procurator is literally what is meant, for the vast majority of procurators are also qualified as advocates, making the technical distinction set out above somewhat unimportant in practice other than for the young legal practitioner who is making his way from qualification as a procurator along the road to `full' qualification as an advocate. A procurator may become an advocate either through practice as a procurator for a period of six years, or by taking further examinations in civil, criminal and administrative procedure after a minimum of two years practice. Upon qualification as an advocate, the entrant again has his name entered in the register, also, that is the white book, of the ordine in his local circondario but this time as an advocate as well as a procurator. As an advocate, he will now be allowed to perform advisory functions on behalf of his client, exercizing discretion and interposing his professional judgement for the client. He will be allowed to develop his client's case tactically and develop arguments in favour of his client as he thinks best before the courts. The courts before which he is now allowed to appear extend beyond the circondario of the Tribunale where he is registered. He is now allowed to practise before any court, up to and including the level of the appeal courts, the corted'appello and the corted'assised'appello, throughout the national territory. His territorial competence is therefore greatly enhanced.
There are however still limits upon his functional competence. He is not allowed to appear before the chief courtsof the State, that is cassazione, the Consiglio di Stato, the Court of Accounts, and the Constitutional Court. To be qualified to appear before these courts, a further career progression is required, which will accord the advocate the status of an avvocatocassazionisto. This step may be taken either upon the completion of eight year's practice as an advocate or following a minimum of one year's practice, in which case examinations relating to the work of the courts in question must be passed.
Praticanti, procurators, avvocaoi, and avvocaoicassazionisti are readily identifiable in court by their garb. When appearing in court, a practitioner will always address the court wearing the toga, a black gown. The gown of the praticanto is unadorned by any tassles, while that of the procuratore has a black tassle, that of the avvocato a silver tassle and that of the avvocatocassazionisto a gold tassle. Gowns with gold tassles are by far the commonest seen in Italian courts. They are also worn by magistrates, of both judicial and prosecuting varieties.