Global Investigations Review - The law and practice of international investigations

Privilege

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Italy

Aurelio Giovannelli and Enrico Maria Mancuso
Baker McKenzie (Italy)

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. In Italy, communications between attorneys and their clients are protected by professional secrecy in the sense that Italian lawyers must keep confidential all documents given to them and information known from any source in the context of their professional activities. Confidentiality is a lawyer’s primary duty and right in all situations. In general terms, confidential information known by the lawyer for professional reasons should not be revealed to third parties, neither in the context of a witness statement or request of disclosure in civil, criminal or regulatory proceedings without a specific and motivated order of the authority.

    The ‘privilege’ applies subject to two fundamental conditions:

    (i) the information was exchanged for the purpose of legal assistance;

    (ii) the information was exchanged with an independent, external lawyer who is not bound to the client by any employment relationship and is member of the Italian Bar.

    Only communications related to the direct exercise of the right of defence in proceedings are highly protected; other communications may have a lower degree of protection or no protection at all and electronic communication may always be particularly vulnerable. 

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. The legal privilege ensures the confidentiality of information given to the attorney in the context of his judicial or extra-judicial activity, for the purpose of obtaining a legal advice. Italian courts usually do not recognise the privilege to communication containing business advice. 

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. The majority of the rules regarding the professional secrecy apply to all kind of legal advice. Nonetheless, a higher degree of protection is afforded when the legal advice is related to a criminal litigation. For example, the public authority cannot carry out inspections and/or searches of the premises of a defence lawyer, unless the lawyer himself is charged with a crime, and cannot seize the documents related to the defence strategy or investigations nor the correspondence between the defence attorney and the client. 

  7. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?

  8. The professional secrecy protects the confidentiality of all the information exchanged between, by or to lawyers in the context of a professional relationship. Thus, all kinds of documents in the possession of or transmitted by an attorney are covered (for example, memoranda), including preparatory or internal documents, as well as the documents communicated to the client. If the documents were prepared by the client, it must be clear that they were prepared in anticipation of an attorney-client communication for the purpose of obtaining a legal advice.   

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. The confidential nature of the communication may result from formal signs or from the express intention of the parties of the relationship, also with reference to the individuals that can have access to the information. In general terms, the duty of confidentiality attaches also to the staff of the attorney, including trainees, and the technical counsels or licensed private investigators hired within the performance of his or her services.  

    Communications between in-house counsel and their employers are not protected by professional secrecy. 

    The majority of commentators take the view that the possession by any third party of a document which is subject to professional secrecy is unlawful if it is a result of violation of the lawyers’ duty of confidentiality. According to this view, a third party is required to maintain the secrecy of any confidential documents received from lawyers in breach of their duty of professional secrecy. This conclusion in indirectly confirmed by the Italian Code of Criminal Procedure, which prohibits the use of evidence acquired in breach of the law.  

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. If the information can be obtained from a non-privileged source without a violation of the laws, it can be used in the proceedings. The rules of professional secrecy are meant to ensure the respect of the duty and right of confidentiality by professionals. Such duty may still apply once the information is otherwise disclosed. 

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. The duty of confidentiality is very broad and its breach can be justified only in limited exceptions provided by laws and ethical provisions. The disclosure of certain information regarding the lawyer’s client may become necessary:

    • for activities carried out in defence of the client;
    • for preventing the client from committing any particularly serious crime;
    • for proving facts in a dispute between the lawyer and the client;
    • in proceedings concerning how the client’s interests were handled.

    The disclosure of privileged documents and/or information must be limited to those facts strictly necessary to achieve the limited purposes set out above.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. The protection of communications between attorney and client ultimately relies on fundamental constitutional rights, such as the right to freedom and confidentiality of correspondence and of every other form of communication (article 15 of the Constitution of the Italian Republic) and the right of defence (article 24 of the Constitution of the Italian Republic). Insofar as personal data are concerned, data protection laws can also apply to attorney–client communications.

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In Italy, in-house counsel’s professional activity is neither recognised nor regulated by any legal provision or statute. In-house counsel cannot be admitted to the bar (with some limited exceptions) and are thus deprived of all rights and privileges attaching to independent lawyers who are members of the Italian bar, including the protection afforded by professional secrecy. Any document held by in-house lawyers, other than those communications from outside counsel, may have to be handed over to judicial or regulatory authorities. 

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Under Italian law, the communications between an in-house counsel and his employer or employer’s constituents are not protected.

    That been said, the privilege should apply also to those communications with corporate client’s employees that have a connection with the scope of the legal advice.  

  21. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

  22. The counsel may seek the assistance of other lawyers, his staff, private investigators or technical counsels to carry out an investigation or to set a defensive strategy.  

    The duty of confidentiality and the privilege are generally extended to the people acting at the direction of the counsel. Private investigators and technical counsels may be asked to provide a written mandate where the counsel has determined the scope of their services and their powers. 

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. The protection afforded by professional secrecy is only recognised to independent lawyers who are members of the Italian Bar, therefore excluding in-house counsels. But the Italian Criminal Code and Code of Criminal Procedure do not expressly specify that professional secrecy is exclusively applicable to Italian lawyers; they rather make reference to “lawyers” in general.

    The letter of the provisions therefore suggests that professional secrecy could be extended to foreign lawyers, provided that:

    • they are admitted to their national bar; and
    • their title is recognised by the Italian system.

    Although no Italian court precedents confirm this conclusion with specific reference to lawyers, there are precedents which extended the benefit of professional secrecy to foreign private investigators who are entitled to exercise their profession according to their system, provided that their title is recognised in the country where the proceedings are pending. 

  25. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?

  26. The law recognises the duties and rights related to professional secrecy to other professionals, such as licensed private investigators, technical counsel and some other advisers.

  27. 14.Does the privilege apply to communications with potential clients?
  28. According to the Professional Code of Conduct the duty of confidentiality usually starts when the client has retained the lawyer, but it extends also to information given by persons who have consulted the lawyer if he rejects the mandate. 

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. The professional secrecy is usually invoked by the attorney, but in the primary interest of his client.

    It is inaccurate to talk about the existence of a “privilege” in the sense of common law “legal privilege”. Professional secrecy is, first of all, an obligation imposed by the law on the attorney, that is intended to protect the rights of defence of the client and the independence of the legal profession. 

  31. 16.Can the privilege be waived? Who may waive it?
  32. The disclosure of privileged documents and/or information by the attorney may become necessary:

    • for activities carried out in the defence of the client;
    • for preventing the client from committing any particularly serious crime;
    • for proving facts in a dispute between the lawyer and the client; or
    • in proceedings concerning how the client’s interests were handled.

    In these cases, the disclosure of an information or a document protected by professional secrecy will not determine disciplinary or criminal liability. 

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. In Italy the formal process of disclosure of documents is considered an exceptional measure. Only in certain limited cases and under specific conditions may the court order the parties, or third parties, to make specific disclosure of certain documents, either on application of the parties or of its own motion. 

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. Under Italian law, professional secrecy is disciplined by miscellaneous rules univocally intended to protect clients’ rights of defence. In this respect, privileged information can be shared among parties in order to pursue common interests or to set common defensive strategies. 

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. No, the professional secrecy is adequately regulated by existing rules.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. The professional secrecy in Italy is governed by statutory rules (the Criminal Code, the Code of Criminal Procedure and the Code of Civil Procedure) and ethical rules (the Professional Code of Conduct). Court decisions do not set binding precedents but show how judges usually interpret rules.

    The scope of professional secrecy is defined by the rules of the Professional Code of Conduct (articles 13 and 28): an attorney is obliged to maintain confidentiality and the professional secrecy over all the facts and information relating to his or her clients, that he or she has known from any source during the performance of his judicial and extra-judicial functions and for professional reasons.

    Under the Criminal Code (article 622), divulging a professional secret without justification or using it for the profit of oneself or a third party, and thereby procuring damage, is an offence which is punishable with the imprisonment of up to one year or a fine of up €516. The crime is prosecuted upon request of the person who has been harmed by the violation of the professional secret, usually the client.     

    Under article 200 of the Code of Criminal Procedure, recalled by article 249 of the Code of Civil Procedure, lawyers and non-lawyers acting at their direction (their staff, licensed private investigators and technical counsels) cannot be compelled to testify about the information that they have known in the context of the attorney-client relationship or during an investigation.

    Under article 256 of the Code of Criminal Procedure, any lawyer can refuse to hand over documents and other materials in his or her possession upon request by judicial authorities, by declaring in writing that such documents are protected by professional secrecy. A judge has always the authority to verify whether there are any grounds to invoke the professional secrecy, but he should cautiously investigate the matter prior to compelling the testimony or to authorising the seizure of the documents.

    Article 103 of the Code of Criminal Procedure affords a higher degree of protection to the information and documents exchanged in the context of a relationship between the defendant in a criminal process and his defence lawyer. The public prosecutor cannot carry out inspections and searches of the defence lawyer’s premises, unless the defence lawyers is himself charged with a crime or to find specific persons/things that have been specifically identified. In such rare cases, the inspection or the search must be carried out by a judge and must be previously notified to the local bar so that a representative of the bar can be present.

    Any document related to the defence strategy or investigations and any correspondence between the lawyer and the defendants (if it is identifiable from specific signs printed on the envelope) cannot be seized, unless they are the corpus delicti. According to some court decisions, such prohibition applies even when the documents are held in other places than the defence lawyer’s premises.

    The phone conversations and telecommunications between the defence lawyer, his or her team and the defendant cannot be tapped.

    The evidence obtained in violation of such prohibitions cannot be used in criminal proceedings.  

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. Legal professional secrecy is characterised, first of all, as a substantive right to confidentiality of the information exchanged for the purpose of legal assistance, whose breach can determine disciplinary and criminal liability. But it is also a procedural rule preventing, with some exceptions, the non-voluntary disclosure of privileged information in a civil, criminal or regulatory proceedings. 

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. In the context of criminal proceedings, all documents can be generally seized, except for those hold by the attorney. When a confidential document is hold by the client, the attorney could invoke the existence of a professional secrecy connected to the right of defence of the defendant (for example, because the document has been drafted in preparation of litigation). If the public prosecutor decides to seize such document, the attorney will have to challenge the future use of it in the criminal proceedings as the evidence was collected in violation of the law.

    In the context of civil litigation, in contrast to common law countries, the formal process of disclosure of documents is considered an exceptional measure. Only in certain limited cases and under specific conditions may the court order the parties, or third parties, to make specific disclosure of certain documents, either on application of the parties or of its own motion. In particular, pursuant to the Italian Code of Civil Procedure, a judge may only order the production of documents that he or she deems necessary to resolve a crucial issue of the case, and only where the facts cannot otherwise be proved. Disclosure can also only be ordered where the documents have been specifically identified and it is certain that they exist. Disclosure cannot be used to circumvent the requesting party’s burden of proof.

    When a governmental regulator requires a lawyer to disclose documents, under the Professional Code of Conduct the lawyer can refuse to provide any confidential documents covered by professional secrecy. In some instances, the Italian Antitrust Authority has simply seized the privileged document without regard of its nature, while in other cases the same authority has not physically seized the document but nonetheless read its content during the inspection in order to get a picture of the purpose of the legal opinion and possibly clarify some relevant issues or facts. In order to avoid such situations, it is common practice among antitrust practitioners to have attorney closely shadowing inspectors from the Italian Antitrust Authority during all phases of an investigation so as to be able to immediately oppose the seizure of privileged documents protected by professional secrecy. 

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The rules are uniform nationwide. 

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. The Italian Bar supervises the observance by its member of rules of the Professional Code of Conduct, including the rules related to professional secrecy. The Italian Bar can commence a disciplinary action against an attorney accused of having violated the professional secrecy. The Bar can impose very serious sanctions, as the suspension from exercising the legal profession from one up to three years. 

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. The violation of the attorney-client privilege by divulging a professional secret without justification or using it for the profit of oneself or a third party, and thereby procuring damages, may be prosecuted criminally facing up to one year imprisonment or a fine of up to €516. If the violation has caused harm, damages can be sought within the criminal process or before a civil court.   

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. During investigations, the attorney can invoke the existence of a professional secrecy any time the public authority is carrying out a search in the lawyers’ premises. When the search is carried in other places, the privilege can be invoked when the authority is going to seize documents and correspondence inherent to the exercise of the client's right of defense in the proceeding. Attorneys, authorised private investigator and technical consultants can always invoke the existence of a professional secrecy if they are questioned during an interview or on the witness stand, refusing to answer the question. The judge has always the authority to verify whether there are any grounds to invoke the professional secrecy, and then order the question to be answered. 

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. According to the general rules relating to the burden of proof, in the dispute between the client and the attorney, the client asserting the right to confidentiality must demonstrate the existence of the right.  

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. Pursuant to the Italian Code of Civil Procedure, a judge may only order, either on the application of the parties or of its own motion, the production of documents that he deems necessary to resolve a crucial issue of the case, and only where the facts cannot otherwise be proved. Disclosure can also only be ordered where the documents have been specifically identified and it is certain that they exist. Disclosure cannot be used to circumvent the requesting party’s burden of proof.   

    Where a governmental regulator requires a lawyer to disclose documents, under the Professional Code of Conduct the lawyer can refuse to provide any confidential documents covered by professional secrecy. In some instances, nonetheless, the Italian Antitrust Authority has simply seized the privileged document without regard of its nature.

    Pursuant to the Italian Code of Criminal Procedure, the documents held by attorneys are protected by the general prohibition of inspection, search and seizure in the premises of defence lawyers.   

    The documents held by the client usually cannot be protected from seizure, unless they are related to the exercise of the right of legal defence. 

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. Italian law does not recognise any validity to choice-of-law provisions relating to privilege.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. The duty of confidentiality survives the client’s death. 

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. According to the Professional Code of Conduct, the duty of confidentiality remains even when the mandate has been concluded, waived or not accepted.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. The professional secrecy cannot protect either an attorney or a client from the disclosure of the communication between them if there is evidence suggesting that the attorney is an accomplice to the crime or is unlawfully obstructing justice. In such cases communications are considered as the corpus delicti. 

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. No, the privilege is not terminated. In case of inadvertent disclosure, privilege information is still protected by rules relating to freedom and confidentiality of correspondence and/or data protection provisions.

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. No, the privilege is not terminated. Under Italian law, rules disciplining the professional secret are only intended to ensure the respect of the duty and right of confidentiality by professionals. Such duty and right still exist once the information is anyhow disclosed.

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.

    What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication? Does it cover documents prepared during an attorney-led internal investigation?


  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?


  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?


  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?