Is attorney-client communication only privileged as long as it remains in the lawyer's possession, or is a copy held by the client also protected?
Documents related to the defense strategy or investigations, including correspondence between lawyers and clients (if it is identifiable from specific signs printed on the envelope) may not be subject to inspection, search or seizure if they are placed in the lawyer's premises, unless they constitute the evidence of a crime (i.e., corpus delicti). According to some court decisions, documents related to the defense strategy or investigations may not be seized even when such documents are held in places other than the lawyer's premises, because the confidentiality guaranteed by the privilege is related to the role of the lawyer, rather than to the place where such documents are held.
Where a lawyer-client communication that may constitute a corpus delicti (i.e., proof that a crime has occurred) is held at the lawyer's office, in order for the judge to carry out an inspection, a raid or a seizure, the judge must inform the Bar Association in advance so that the chair of the Bar Association or its representative can be present at the activities relating to the inspection, raid or seizure. Where lawyer-client communication is in the client's possession and does not constitute a corpus delicti, it is privileged provided that it is marked as "correspondence for reason of justice" (corrispondenza per ragioni di giustizia) and indicates the following information:
Under a reasonable interpretation of Italian law, it is also necessary that a valid power-of-attorney has been granted to the external counsel under article 391-nonies of the Italian Code of Criminal Procedure, to carry out the so-called defensive investigations.
Are in-house lawyers treated in the same way as external lawyers for determining privilege?In Italy in-house lawyers are not bound by the same concept of privilege because in-house lawyers are not recognized as lawyers under Italian law. In other words, the in-house counsel's professional activity is neither recognized nor regulated by any legal provision or statute. If they wish, in-house lawyers may take the bar exam but they are not required to pass the bar exam to work as in-house lawyers and, even if they pass the bar exam, in-house lawyers may not be enrolled with the bar (with some limited exceptions).
In a nutshell, in-house lawyers are mere employees of companies with a legal background rather than lawyers, and they may not use the title "lawyer" even if they passed the bar exam. In-house lawyers should not even be called "lawyers" because, under Italian law, only lawyers who are enrolled with the bar may be called "lawyers". Thus, in-house lawyers are deprived of all rights and privileges attaching to independent lawyers who are members of the Italian bar, including the protections afforded by the Italian law of privilege. Therefore, any documents held by in-house counsel, other than communications from external lawyers, may have to be handed over to judicial or regulatory authorities.
In-house counsel, in their capacity as employees, are subject to article 2105 of the Italian Civil Code concerning duty of loyalty (obbligo di fedeltà), under which in-house counsel are allowed neither to spread information about the company's manufacturing organization and methods, nor to use such information to the detriment of the company. Moreover, article 2105 of the Italian Civil Code provides that all employees of a company (including, therefore, in-house lawyers) are never allowed to compete with the employer, to spread information about the employer's manufacturing organization and methods, or to use such information to the detriment of the employer. Therefore, article 2105 of the Italian Civil Code means to say that in-house lawyers, as employees of a company, cannot act independently from their employer's interests, and confirms that legal privilege does not apply to legal documents created by in-house lawyers.
Does privilege extend to internal communications between in-house lawyers?No. In-house lawyers' professional activity is neither recognized nor regulated by any legal provision or statute. Accordingly, no concept of privilege or other form of protection applies to in-house lawyers.
It is worth noting that the privilege could attach to communications between in-house counsel and external counsel, provided that (i) the communications include certain information (i.e., the case number, external counsel's full name and professional qualification, the client's full name, the signature of the sender), and the same communications are marked as "correspondence for reason of justice"; and/or (ii) under a reasonable interpretation of Italian law, privilege attaches to communications between in-house counsel and external counsel if a valid power-of-attorney has been granted to the external counsel under article 391-nonies of the Italian Code of Criminal Procedure, to carry out the so-called defensive investigations.
Are foreign lawyers recognized for the purposes of privilege?The Italian Criminal Code and Code of Criminal Procedure do not expressly provide that professional secrecy is exclusively applicable to Italian lawyers, but rather make reference to lawyers in general enrolled with the Italian bar. The wording of the provisions therefore suggests that professional secrecy could be extended to foreign lawyers, provided that (i) they are admitted to their national bar, and (ii) their title is recognized by the Italian system, thus leading to registration with the Italian bar. In this respect, registration with the Italian bar can be verified on the website of the Consiglio Nazionale Forense (CNF) through the name of the lawyer (https://www.consiglionazionaleforense.it/ricerca-avvocati).
Although there are no Italian court precedents that confirm this conclusion with respect to lawyers, there are precedents which extend the benefit of professional secrecy to foreign private investigators, who are entitled to exercise their profession in accordance with the rules of their jurisdiction, provided that their title is recognized in the jurisdiction where the proceedings are pending.
This approach is in line with the position taken by the European Court of Justice when addressing the scope of attorney-client privilege during an antitrust investigation. However, that case suggests that the scope of privilege may be limited to European Union lawyers.
Does privilege extend to nonlegal professionals who may from time to time advise on legal issues relating to their field, e.g., accountants or tax consultants advising on tax law?
Privilege is normally extended to nonlegal professionals. The provision of the Code of Criminal Procedure, according to which a lawyer cannot be obliged to disclose any information acquired by reason of their professional activity, also applies to professional accountants, tax accountants, notaries, technical consultants, medical doctors and, more generally, to any individual who, due to their work, acquires confidential information and is therefore bound by the duty of professional secrecy.