I INTRODUCTION

i Legal framework

Under Italian jurisdiction, professional liability could be defined as professionals' liability (for professionals such as attorneys, accountants and doctors) or semi-professionals' liability (for professionals such as consultants or real estate brokers), incurred as a result of errors or omissions, that causes an economic loss to a third party, which is usually the client.

It is a branch of the civil liability regulated mainly by Italy's Civil Code,2 as well as by statutes and case law.

It differs, in terms of requirements and consequences, both from criminal liability – which may arise, for example, from the illegal conduct of a professional – and from the disciplinary liability that originates from a violation of the code of conduct issued by a professional body.

In the Italian legal system, civil liability can be contractual or tortious in nature, consequently professional liability will be regulated by the general principles governing contractual as well as tortious liability under Italian law, as set out, on one hand, under Articles 1176, 1218 and 2229 and, on the other, under Articles 2043 et seq. of Italy's Civil Code (CC).

Ultimately, the main difference between these two categories depends on whether a contractual relationship exists between the parties, in this case represented by the professional and the client.

Depending on the type of category to which the relationship is ascribed, a different regime, in the form of requirements, consequences, limitations and prescriptions, applies.

Over the years, the role of the Italian Supreme Court has been essential in identifying the most suitable kind of liability – contractual or tortious – for each specific profession.

Nevertheless, since case law is constantly developing, we cannot exclude the possibility of current orientations undergoing further changes in future.

Depending on the nature of the action to be brought against a professional, the plaintiff must comply with different burdens of proof. According to Article 1218 CC, which is one of the pieces of legislation that establishes the founding principles of contractual liability, 'the debtor who fails to perform his payment obligation is obliged to restore the damage if he does not prove that the non-performance or his delay has been determined by the impossibility arising from a cause that is not attributable to him'.

In addition, Paragraph 2 of Article 1176 CC – whose first paragraph prescribes that the debtor should use the diligence of a 'good father', meaning the diligence of a reasonably prudent person – specifies that, 'in the performance of a professional activity, the diligence should be evaluated with reference to the professional activity to be carried out'.

Moreover, since the activity of professionals is often considered an intellectual activity, the relevant regime is provided by Articles 2229 et seq. CC.

In particular, according to the provision of Article 2236 CC, 'in the event that the performance requires the solution of particularly difficult problems of a technical nature, the professional will be held responsible exclusively in the event that he acted with intent or gross negligence'.

In the case of a contractual action, the burden of proof – established pursuant to the above-mentioned Article 1218 CC – charges the debtor with a presumption of fault, in the face of which he or she has to demonstrate his or her diligence and the impossibility of his or her performance.

In contrast, Article 2043 CC, which sets out the legal ground for tortious liability, states that the person alleged to have been damaged must prove all the elements of the cause of action, including the defendant's negligent or intentional conduct.

Failure to prove the elements of the cause of action leads to a rejection of the action by the judge.

Ultimately, for the sake of completeness, we must also address the fact that, because of the litigious nature of the society we live in, professionals increasingly decide to take out an insurance policy that covers their professional activities. Moreover, frequently professionals belong to a professional body or industry association in which professional indemnity insurance is compulsory.

ii Limitation and prescription

The legal action aimed at assessing a professional's liability can be barred because of the expiry of a statutory limitation period, which varies depending on the nature of the civil action to be started (i.e., contractual versus tortious).

According to the general principle set out under Article 2946 CC, the ordinary term after which a contractual action becomes barred is 10 years, from the execution of the relevant agreement.

On the other hand, Article 2947 CC provides that a tortious action for the compensation of unjust damage is time-barred if it is not started within the shorter term of five years, from the occurrence of the fact that damaged the claimant.

iii Dispute fora and resolution

Under the Italian jurisdiction, the determination of dispute fora is mainly governed by the Civil Procedure Code – which provides both general and special criteria, depending on the subject matter – as well as by certain statutes that set out special criteria, such as the Consumer Code.3

The Civil Procedure Code provides for two different sets of general criteria, depending on whether the defendant is a company – in which case, the competent court will be the one of the place where the company has its legal seat4 – or an individual, who shall be sued before the court of the place where he or she is resident or domiciled, or, if not an Italian resident, before the court of the place where the claimant lives.5

According to the Consumer Code – whose aim is to assure the consumer of protection and facilitate his or her legal action – the dispute forum is the place where the consumer lives.6

Recently, the Supreme Court, ruling on a professional liability lawsuit, applied the special forum provided by the Consumer Code,7 deeming the client of the professional (a lawyer) to be a consumer.

Proceedings for the assessment of professional liability are governed by the procedure rules set out by the Civil Procedure Code, in the absence of a specific regime provided by statutes on this matter.

In addition, as already explained (see Section II.i above), Italy's Civil Code provides for a different regime regarding the burden of proof according to the nature of the action (i.e., whether the claimant qualifies the nature of the professional liability as contractual or tortious).

Pursuant to Article 5 of Legislative Decree No. 28/2010, as subsequently amended, claims for damages arising out of medical liability cannot be brought without first filing a request for mediation or conciliation.

iv Remedies and loss

Under the Italian jurisdiction, the main remedy available to a person alleged to have been damaged by the conduct of a professional – whether by omission or action – is reimbursement for the suffered damage, which is governed by the provisions of Articles 1223–1229 CC, both of which apply to tortious and contract liability cases.

Pursuant to Article 1223 CC, reimbursable damage includes the loss sustained and the profit lost as the immediate and direct consequence of an illegal act.

In addition, under Article 1225 CC, if there is no intentional conduct, the reimbursable damage is limited to the damage that could be foreseen when the obligation arose.

Again, under Article 1227 CC, if the creditor contributed to the cause of the damage through his or her fault, the reimbursement is reduced in proportion to the seriousness of the fault and the extent of the consequences. Then, reimbursement is excluded for that damage that the creditor could have avoided by exercising the ordinary level of care.

Article 1226 CC also provides that where the damage cannot be quantified in its exact amount, it will be liquidated by the judge on an equitable basis.

According to Italian case law, the judge does not require unequivocal evidence of the damage caused to the client through the performance of an activity or an omission by the professional.

This is because the judge will assess loss and damage, examining the causal connection between the omission and the damage and, in particular, will decide on the basis of the outcome that would most probably have occurred in the case at hand.

This means that the judge will examine the matter and decide whether the omission or the activity performed by the professional should have had different results from the actual results.

The Supreme Court has applied the above-mentioned criteria to several professions and, recently, affirmed its application with reference to lawyers.8

II SPECIFIC PROFESSIONS

i Lawyers

Lawyers' professional liability is predominantly contractual in nature since it is based on a contract executed between the lawyer and the client for the provision of legal services, both judicial and extra-judicial.

It is assessed having regard to the general provisions on contractual liability set out by the Civil Code.

The professional body institutionally representing the legal profession in Italy is the Italian Bar Council (CNF), which is vested with a regulatory and disciplinary authority.

It enacts and updates the Lawyers Code of Conduct, which sets out the obligations to be observed in the performance of the legal profession (probity, dignity, competence, secrecy, confidentiality, decency, diligence, etc.), disciplinary breaches and the applicable sanctions (warning, censorship, suspension and disbarment).9

Disciplinary power is exercised by disciplinary district councils, established at each district Bar,10 pursuant to a procedure set out under Regulation No. 2/2014.11

The obligation that a lawyer assumes towards his client is a relative obligation (an obligation of means) and not an absolute obligation (an obligation of result) since the professional is engaged to diligently carry out the assignment but cannot guarantee achievement of the result sought.

The Court of Cassation clarified that a right to compensation for damage suffered does not automatically arise as a result of any non-fulfilment on the part of the lawyer, as it is necessary to consider, on the basis of a probabilistic evaluation, whether in the absence of the mistake made by the lawyer the negative outcome for the client would have occurred anyway.12

A recent ruling extended lawyers' liability based on a probabilistic evaluation in a case where a judicial action was time-barred because of a lawyer's negligent failure to contest a ruling within the legal term; the client's right to be reimbursed was recognised even though it was not certain that he would have been successful before the court of appeal.13

According to Italian jurisprudence, lawyers can be held professionally liable in the following cases:

  1. even when client and lawyer share the defence strategy and when the client himself or herself requests specific defence tools (since the choice of the technical path in the performance of the professional activity is the exclusive task of the lawyer);14
  2. when the lawyer omits to indicate the means of proof necessary to uphold the action;15 and
  3. when, after complying with the duties of solicitation, dissuasion and information towards the client, informing him or her of 'any factual or legal issue, regardless of how it arises, that might prevent achievement of a result, or in any manner produce a risk of detrimental effects', and advising him or her against 'starting or continuing a proceeding whose outcome is likely to be unfavourable',16 the lawyer does not provide the relevant evidence, since the release of the power of attorney by the client is not sufficient proof of compliance with the information duty.17

Article 12 of Law No. 247/2012, as subsequently implemented,18 requires Italian lawyers to take out professional liability insurance covering civil liability and injuries resulting from the performance of the professional activity.

Coverage must include the lawyer's civil liability for any damage that he or she may cause to clients and to third parties in the performance of his or her activity, and also for gross negligence. Any type of damage is insured: monetary, non-monetary, indirect, permanent, temporary and future.

It includes civil liability deriving from faulty or wilful conduct of collaborators, practitioners, employees or procedural substitutes, and liability for damages arising from the custody of documents, sums of money, securities and valuables received as deposit from clients or from the counterparts of clients in proceedings.

Coverage for injuries must be provided in favour of a lawyer's collaborators, practitioners and employees who do not benefit from National Institute for Insurance against Accidents at Work (INAIL) mandatory insurance coverage. This coverage is extended to injuries that occur during, because of and in connection with the performance of the professional activity and that cause death or permanent or temporary invalidity, as well as medical expenses; and to injuries that occur during displacements necessary through carrying out of the professional activity.

Lawyers shall communicate the data of the insurance policy to the local bar association to which they belong, to the CNF and to the client.

ii Medical practitioners

In a departure from the past jurisprudential orientation of Italian courts with respect to the nature of medical practitioners' professional liability, the 'Gelli Law', enacted on 28 February 201719 clarified that, unless they have entered into a contractual relationship with the patient, medical practitioners belonging to a healthcare facility are liable in tort whereas the healthcare facility is liable in contract for negligent or fraudulent behaviour on the part of the medical practitioner.20 Therefore, different provisions regarding the burden of proof and statutes of limitation apply, depending on the contractual or tortious nature of the action.

If the liability is in tort, Article 2043 CC applies, and the patient must prove all the elements of the cause of action and the action becomes time-barred after five years.

In the case of a contractual relationship between the medical practitioner and the patient, the provisions of the Consumer Code on dispute fora apply.

With respect to the assessment of the medical liability, the Court of Cassation ruled that it is possible to ascertain the existence of a causal link between the omission of the doctor and the damage suffered by the patient when, according to a probabilistic evaluation, it is possible to state that the activity of the doctor, if diligently and promptly performed, would have had serious and important possibilities of preventing the damage that occurred; the relevant burden of proof lies with the damaged person.21

In another case, the Court of Cassation stated that 'the proof of the existence of a causal link is given when there is no certainty that the cerebral damage suffered by the newborn derived from natural or genetic causes and it appears “more likely than not” that a prompt or different intervention by the doctor would have avoided damage to the newborn'.22

The patient cannot bring a claim for damages arising out of healthcare liability without having first filed a recourse for a prior expert inspection or, alternatively, a request for mediation. Attendance at the proceedings is mandatory for all parties, including the insurance companies, which shall submit their offer for damage compensation or state the reasons why they refuse to make an offer.23

In cases of gross negligence or fraudulent behaviour, the healthcare facility can bring a recovery action against the medical practitioner. If the latter was not part of the proceedings for the compensation of the damage, the healthcare facility can bring a recovery action after payment of the damages, no later than one year after the mentioned payment.24

The Gelli Law introduced the obligation to take out an insurance policy covering the risks arising from the medical profession for all private and public healthcare facilities and medical practitioners.

A professional's insurance must cover gross negligence in the carrying out of the activities. The healthcare facility shall cover civil liability towards third parties and any damage caused to the professionals themselves while they are working at the healthcare facility.

A patient can also directly sue the insurance company of the healthcare facility or the professional for reimbursement for damage (in addition to suing the healthcare facility and the medical practitioner themselves).25

In the absence of insurance coverage, patients can have recourse to the Guarantee Fund (a fund for damages arising from medical liability), which guarantees the damages arising from medical liability. The Guarantee Fund is also available when the insurance limits are lower than the reimbursement due to the patients or if the insurance company with which the healthcare facility or the professional took out the insurance coverage is insolvent or under compulsory administration.26

iii Banking and finance professionals

Banking and finance professionals' liability is tortious in nature since the client usually enters into a contractual relation with the financial institution and not directly with the professional.

Under Article 31, Paragraph 3 of Legislative Decree No. 58 of 24 February 1998 – setting out the Unified Rules on Financial Intermediation – the financial institution is jointly liable with the finance professional qualified for door-to-door selling for damage caused to third parties.

Recently, the National Commission for Companies and the Stock Exchange (CONSOB), which is the supervisory authority for the Italian financial products market, issued Regulation No. 17130 of 12 January 2010,27 which enacted Articles 18 bis and 18 ter of Legislative Decree No. 58/98 concerning finance professionals qualified to practise door-to-door selling (now defined as 'independent financial advisers'), and financial institutions.

Article 12 of the above-mentioned Regulation states that in the performance of investment advisory services, financial consultants must behave with diligence, correctness and transparency.

In addition, and except in specific cases,28 they must maintain the confidentiality of the information acquired from their clients or potential clients, or that is made available to them because of their activity.

The finance professional whose conduct does not comply with these rules shall be subject to the penalties provided by Article 27 of Regulation No. 17130/2010.

In particular, depending on the performed activity, the professional can be struck off the register, suspended for one to four months or obliged to pay a penalty of between €500 and €25,000.

Finance professionals have to be enrolled on the Unified Register of Financial Advisers administered by the Supervisory Organisation of Financial Advisers (OCF).29

iv Computer and information technology professionals

The liability of computer and information technology professionals can be either contractual or tortious, depending on the specific case.

In fact, this kind of professional may have a contractual relationship with the client or, on the other hand, may be exclusively a producer of, for example, a specific software program that does not work.

In the first case, the contractual liability regime will apply and the professional should demonstrate his or her diligence and should prove, pursuant to Article 1218 CC, that the non-performance or delay is due to a cause that has arisen but is not attributable to him or her.

In addition, the professional may also be able to demonstrate the participation of the client in causing the damage.

In contrast, when the professional is the producer and does not have any contractual relationship with the client, he or she will be liable pursuant to Article 2043 CC.

Given the growth of global computerisation, the activities of these kinds of professionals have increased greatly. As a consequence, it is becoming more and more usual for computer and information technology professionals to take out insurance policies for their activity.

v Real property surveyors

Since real property surveyors act as mediators, their liability is governed by Article 1759 CC, which was originally aimed at mediators, and whose obligations they should respect.

In particular, real property surveyors should inform the parties about all the known circumstances that can influence the evaluation and the conclusion of the business.

In addition, recently Italian jurisprudence introduced more duties for real property surveyors, specifying that they should also verify the information given to the client and that they should avoid providing their client with unverified information.30

There is actually debate in Italian doctrine and jurisprudence about the nature of real property surveyors' liability, which can be either contractual or tortious, depending on the specific conduct of the professional.

In particular, Italian legal doctrine – and, in some part, jurisprudence – maintains that the liability is contractual, with specific reference to cases in which the real property surveyor fails to discharge the duty to correctly inform the client about the relevant circumstances of a matter.

In contrast, in other cases the jurisprudence recognises the liability of the real property surveyor as tortious. This happens in particular when the professional acts unlawfully on behalf of another individual.31

To perform their activity, real property surveyors must be enrolled in a specific register with the Chamber of Commerce. This enrolment is subject to specific requirements, such as subscription to an insurance policy for their professional activity.

vi Construction professionals

Liability may be considered in relation to various construction professionals, such as the contractor, the project manager and the designer.

Article 1669 CC, with exclusive reference to the contractor, states that this professional is liable if, within 10 years of the end of the works, the building suffers a partial or total collapse because of defects in the soil or in the construction, or there is a manifest risk of collapse, or serious defects become apparent.

Pursuant to this Article, notification of the defects should be made within one year of discovery of the damage, and the judicial action for damage compensation is time-barred if it is not started within one year of notification of the defects.

Italian jurisprudence has also extended this regime to the project manager and the designer.32

The nature of the construction professionals' liability is both contractual and tortious, depending on the particular profession.

In fact, while the liability of the contractor will be contractual by virtue of the procurement contract, the liability of both the project manager and the designer will be tortious, and the principal must prove all the elements of the cause of action, including the defendant's negligent or intentional conduct.

In addition, despite the difference in the nature of the liability of the contractor and the project manager, the Italian jurisprudence maintains that they are jointly liable for damages arising from the project.33

Because of the numerous figures that are involved in the construction profession, it is not feasible to provide here an exhaustive account of all the applicable professional bodies and insurance regimes.

However, by way of example, the project manager can be a professional or an employee, enrolled in the register instituted for his specific profession – for example, the Register of Engineers.

In addition, in the event that the professional is VAT registered, with a VAT registration number, he or she must have an insurance policy for his or her professional activity, which is not required of employees.

vii Accountants and auditors

While accountants' liability is predominantly contractual in nature, auditors' liability can be both contractual and tortious in nature, since their behaviour can ultimately damage both the company with which they have a contractual relationship and third parties.

Recently, the Supreme Court specified a few principles governing the client–professional relationship with respect to accountancy and fiscal duties, including the principle that the accountant drafts the accounts on the basis of the data provided by the client and is not under any obligation to find autonomously items of expenditure to record in the accounts; and that the accountant's liability cannot be declared in the absence of a causal link between the accountant's conduct and the claimed damage if the client does not prove that diligent practice by the accountant would have prevented the damage.34

To carry out their professional activity, accountants must be enrolled in the bar association of their place of residence and must have an insurance policy for their professional activity.

Similarly, auditors must be enrolled in the register instituted by the Minister of Finance.35

Also, auditors should have an insurance policy. However, insurance companies do not provide a specific insurance policy for auditors and this kind of coverage should be added to the ordinary content of a professional liability insurance policy.

Article 9 and 9 bis of Legislative Decree No. 39/2010, which reformed the regime governing the auditing of accounts, impose on auditors and auditing firms an obligation to comply with deontological principles of confidentiality and secrecy. Furthermore, pursuant to Article 15, auditors and auditing firms are jointly liable, together with the directors of the audited company, towards the company, its shareholders and third parties for damages resulting from failure to fulfil their duties. In the inner relation among the joint debtors, each of them is liable within the limit of their actual contribution to the damage caused. The action for compensation of the damage is time-barred if it is not started within five years of the date of the auditing report on the balance sheet issued at the end of the auditing activity.

viii Insurance professionals

The liability of insurance professionals is considered here in relation to the figures of the agent and the sub-agent.

The insurance agent deals with the management of an agency on behalf of one or more insurance companies. The agent is paid, entirely or partially, a commission and carries out the activity at his or her own risk and expense, and is liable for a specific area and for directing the staff he or she has hired.

The second is an auxiliary of the agent who collaborates with the agent in the agency.

The agent must be enrolled in the Single Register of Intermediaries (RUI), instituted according to Legislative Decree 209/2005 and currently maintained by the Italian Insurance Supervisory Authority.

To be enrolled in the RUI, each agent must have an insurance policy for his professional activity.

The sub-agent must also be enrolled in the RUI, but in Section E, which is different from the one in which the agent is enrolled.

Regarding their liability, as with banking and finance professionals, the professional's liability is tortious since the client usually enters into a contractual relation with the insurance company and not directly with the professional.

Further, the agent is liable under Article 2049 CC for damage caused by the sub-agent. In the same way, the insurance company is liable under Article 2049 CC for damage caused by the agent.

The liability set out by Article 2049 CC is attributed to a person, generally the employer, for the act of a third person, the employer's employee, by virtue of an employment relationship.

The person held liable pursuant to this Article is not provided with any opportunity to prove his or her lack of negligence.

However, the injured person should demonstrate the damage, its connection with the agent or the sub-agent and an employment relationship between the employer and the employee.

III YEAR IN REVIEW

The major developments in Italian law and case law affecting professional liability over the past year are briefly described in this section.

With respect to dispute fora, in 2017 the Supreme Court confirmed that the special forum of the Consumer Code was applicable to a dispute between a lawyer and a client,36 and in 2018 it clarified that this forum cannot be waived by the parties, not even by means of an oral contract, or as a result of the client's procedural behaviour, unless the professional proves that the waiver has been specifically negotiated by the parties before the start of the proceedings. (In the case at hand, the client had refrained from contesting the territorial jurisdiction of the court; rather the court itself had raised this objection by its own motion.)37

With respect to lawyers' professional liability, the Supreme Court in 2018 announced the principle that the assessment of a lawyer's liability for negligent behaviour requires a positive prognostic evaluation – not necessarily certainty – on the likely positive outcome of the lawyer's activity, had it been carried out correctly and diligently.38 The Supreme Court clarified that the lawyer's liability cannot be declared solely as a result of his or her negligent behaviour, as it is necessary to verify whether diligent conduct would have allowed the client to obtain the recognition of his or her rights, which would in turn represent evidence of the causal link between the conduct of the professional and the consequent result.

Further, concerning insurance policies covering civil liability and injuries, despite the fact that the relevant obligation became mandatory in 2012, it only became effective in November 2017, after the enactment of the implementing Decree of the Ministry of Justice of 22 September 2016.39 Initially, Article 12 of Law No. 247/2012 provided for coverage of injuries to the lawyer himself or herself; however, Law No. 284 of 4 December 2017 subsequently amended the provision and currently coverage is mandatory only for injuries to a lawyer's collaborators, practitioners and employees who do not benefit from INAIL mandatory insurance coverage.

As regards medical practitioners, the Gelli Law, enacted in 2017, represented a major reform of the healthcare liability system, introducing new principles and obligations. However, some of provisions (concerning insurance, etc.) of the Law are not yet effective because the relevant implementing decrees have still to be enacted (see Section IV below).

As regards the issue of 'informed consent', which medical practitioners are required to obtain from any patient before carrying out any medical treatment, the Supreme Court, in 2018, confirmed the principle of law whereby a doctor has a duty to inform the patient about the health treatment to which he or she will be subject; consequently a lack of information both damages the patient's health and infringes his or her right to self-determination. However, in the case at hand, the doctor was discharged from any liability since he provided evidence – through witnesses testimony – that the patient had verbally given her informed consent to the medical treatment.40

With respect to banking and financial professionals qualified to undertake door-to-door selling, the Supreme Court clarified in 2017 and 2018 that, despite the provisions set out under Article 31, Paragraph 3 of Legislative Decree No. 58/98 and Article 2049 CC, a financial institution is not necessarily held jointly liable with a financial adviser (who had cashed a cheque received by a client) for misconduct if the judge ascertains that he or she acted for personal purposes and not within the scope of the labour relationship with the financial institution (the name of the beneficiary was not specified on the cheque and the client had not signed any contract for the purchase of the securities).41

Having regard to accountants, the Supreme Court recently assessed the liability for negligence of an accountant whose client had been subject to several sanctions. The Supreme Court clarified that, to be partially discharged from liability, the accountant should have demonstrated that the client did not behave with the ordinary degree of diligence, and that had he behaved diligently the sanctions could have been reduced.42

IV OUTLOOK AND FUTURE DEVELOPMENTS

As indicated in Section III above, with reference to medical practitioners, over the coming year a number of decrees implementing the Gelli Law should be enacted, pursuant to Articles 10 and 14 of the Law.

In particular, pursuant to Article 10 of the Law (regarding insurance obligations):

  1. the Ministry of Economic Development together with the Ministry of Health should set out the criteria according to which IVASS shall supervise insurance companies taking out insurance policies with healthcare facilities and medical practitioners;
  2. the Ministry of Economic Development together with the Ministry of Health and the Ministry of Economy should issue a decree stipulating the minimum requirements for insurance policies for private and public healthcare facilities, and for medical professionals; and
  3. the Ministry of Economic Development, the Ministry of Health and IVASS should issue a decree on good practice regarding security in the healthcare system, providing for the means and the terms of data transmission between healthcare facilities (both public and private), medical professionals and the National Observatory.

In addition, on the basis of Article 14 of the Law (regarding a guarantee fund), the Ministry of Health together with the Ministry of Economic Development and the Ministry of Economy should issue an implementing decree defining the activities of a guarantee fund for damages arising from healthcare liability.

Finally, with respect to banking and financial professionals, CONSOB Regulation No. 20307/2018 – which is not yet currently effective but is expected to enter into force soon – provides that, under Article 18 bis and 18 ter of Law No. 58/98, finance professionals are required to take out an insurance policy to perform their activity, and the details of the policy have to be communicated to the OCF upon registration.43


Footnotes

1 Serena Triboldi is a partner at PMT Studio Legale.

2 Royal Decree No. 262 of 16 March 1942, as subsequently amended.

3 Legislative Decree No. 206 of 6 September 2005, as subsequently amended.

4 Article 19 of the Civil Procedure Code.

5 Article 18 of the Civil Procedure Code.

6 Article 33, paragraph 2(u) of Legislative Decree No. 206/2005.

7 Supreme Court Sec. VI – 3, order No. 1464 of 24 January 2014.

8 Supreme Court, Sec. III, order No. 25112 of 24 October 2017.

9 Law No. 247 of 31 December 2012 on the Reform of the Legal Profession vested the Council with the authority to update the Lawyers Code of Conduct. The new Code was enacted on 31 January 2014 and became effective on 15 December 2014.

10 Article 50 of Law No. 247/2012.

11 CNF Regulation No. 2 of 21 February 2014 on Disciplinary Proceedings.

12 Supreme Court ruling No. 297/2015.

13 Supreme Court ruling No. 25112/2017.

14 Supreme Court ruling No. 10289/2015 and No. 20869/2004.

15 Supreme Court, ruling No. 25963/2015 and No. 8312/2010.

16 Supreme Court, ruling No. 14597/2004.

17 Supreme Court, ruling No. 7708/2016.

18 D.P.R. No. 137/2012; Decree of Ministry of Justice 22 September 2016 and Law No. 172 of 4 December 2017.

19 Law No. 24 of 8 March 2017.

20 Article 7 of Law No. 24/2017.

21 Supreme Court, ruling No. 12686/2011.

22 Supreme Court, ruling No. 11789/2016.

23 Article 8 of Law No. 24/2017.

24 Article 9 of Law No. 24/2017.

25 Article 12 of Law No. 24/2017.

26 Article 14 of Law No. 24/2017.

27 CONSOB Regulation No. 17130/2010, subsequently amended by Resolution No. 19548/2016, has been recently repealed by Regulation No. 20307 of 15 February 2018, of which Article 4 Paragraph 5 expressly extended the application of Regulation No. 17130/2010 to the effective operation of the Unified Register of Financial Advisers.

28 The cases contemplated by Article 18 bis, Paragraph 6(e),(f), of Italian Legislative Decree No. 58 of 24 February 1998 and in any other case in which the law allows or imposes disclosure.

29 The Register of Financial Advisers was instituted according to Legislative Decree No. 58 of 24 February 1998. Law No. 208 of 28 December 2015 (the 2016 Stability Law) – effective from 1 January 2016 – introduced the Unified Register of Financial Advisers. At present, the relevant supervisory body, the OCF, exclusively handles the Unified Register of Financial Advisers with respect to finance professionals qualified for door-to-door selling under Article 31, Paragraph 2 of Law No. 58/98, since CONSOB still has not enacted the necessary implementing regulations concerning other sections of the register, which are expected by 31 October 2018.

30 Supreme Court, ruling No. 7178/2015.

31 Supreme Court, ruling No. 16382/2009.

32 Supreme Court, ruling No. 8811/2003.

33 Supreme Court, ruling No. 20294/2014; Supreme Court, ruling No. 18521/2016.

34 Supreme Court, Sec. II, ruling No. 12463/2016.

35 Ministerial Decree No. 144 of 20 June 2012 and Legislative Decree No. 39 of 27 January 2010.

36 Supreme Court, Sec. VI – 3, order No. 21187 of 13 September 2017.

37 Supreme Court, Sec. VI, order No. 1951 of 25 January 2018.

38 Supreme Court, Sec. III, order No. 6862 of 20 March 2018.

39 Official Bulletin No. 238 of 11 November 2016.

40 Supreme Court, Sec. III, order No. 9179 of 13 April 2018.

41 Supreme Court, Sec. I, No. 8267 of 3 April 2017; Supreme Court, Sec. I, No. 3909 of 16 February 2018.

42 Supreme Court, Sec. III, No. 26823 of 14 November 2017.

43 Regulation No. 20307/2018, Article 153, Paragraph 1(h).