In the sense of civil litigation, the defendant can contest the claimant’s request for disclosure on the basis that the requested records are subject to legal professional privilege.
In general, all documents can be confiscated under Italian law. Article 103 of the Italian Procedural Criminal Code makes a single exception to this general rule. It involves the defense counsel formally named in a criminal case and notes that the public prosecutor is unable to carry out inspections and/or searches of the premises of the defence lawyer (unless the defence lawyer is indicted). Under this clause, at the lawyer’s premises, the public prosecutor can not obtain any records relating to the defense policy, the investigations of the defense and any correspondence between them.
In competition law cases, the Italian Competition Authority (ICA) has strong investigatory powers. Under the Italian Competition Act, the ICA is allowed to carry out inspections on the premises of the business under investigation, to take copies of excerpts from books/commercial documents, to ask for oral explanations on the spot, and to carry out further inquiries with a view to obtaining the details required to bring the infringements to light. On this basis, the ICA will theoretically discover and seize all records.
The investigative powers of the ICA, however, are subject to numerous restrictions (for instance, the need to protect confidentiality). The ICA is prohibited by legal professional privilege from reading such written correspondence between the organization and its lawyers.
Italian case law specifies that the case law set up by the Court of Justice of the European Union can also extend to domestic Italian cases.
Under two cumulative conditions, confidentiality of written correspondence between lawyers and clients should be protected:
– The sharing of information with attorneys must be related to the right to protect the client concerned.
– This exchange of information must come from an impartial counsel who is not bound by any employment arrangement with the client.
The legal basis for legal professional privilege in Italy, similar to the situation under EU law, stems from the private existence of the relationship between a lawyer and his client. Legal professional immunity refers to written communications exchanged since the start of a competition inquiry, even though it applies to prior written communications related to the subject-matter of the competition investigation.
Legal professional privilege protects all correspondence in writing, including electronically recorded material. It does not contain any written correspondence that reflect the view of the external counsel, as they are not written.
Relations between a client and his in-house counsel are not protected by legal professional privilege. Indeed, by taking into account their employer’s commercial strategies, the employment arrangement with the client may affect the ability of the lawyer to exercise their professional independence. It has been established by Italian regulatory case law that legal professional privilege is limited to correspondence between the defendant and his external lawyers (TAR Latium, sec. I, 9 September 2012, No. 7467).
In Italy, legal professional privilege extends without distinction to any lawyer who is entitled in one of the Member States of the EU to practice law.
In a document or part of a document which is advantageous to their case, a party can choose to waive legal professional privilege.
Italian jurisprudence pertaining to legal professional privilege concerns violation proceedings. To date, no cases relating to the issue of privilege in merger control proceedings have been brought before the Italian courts.
However, since Italian case law recognizes that the concept of ‘legal professional privilege’ is applicable to the investigative work of the ICA, it can be argued that the same principle is also applicable in the sense of merger control proceedings.