Lawyer under investigation: the safeguards of art. 103 c.p.p. apply

The safeguards laid down in art. 103 c.p.p. (Code of Criminal Procedure) for inspections, searches and seizures at defence lawyers’ offices also apply where the lawyer is the person under investigation. That is how the Sezioni Unite (Joint Criminal Divisions) resolved the conflict in the case law.

The framework. Art. 103 c.p.p. allows the office of a defence lawyer who is the accused to be searched only to establish the offence attributed to that lawyer (para. 1(a)), as well as to detect traces of the offence or to look for specifically identified items or persons (para. 1(b)). It prohibits the seizure of papers relating to the subject matter of the defence, except for the corpus delicti (para. 2). It requires, on pain of nullity, notice to the consiglio dell’ordine forense (local Bar Council) (para. 3). It reserves the act to the judge or, during the preliminary investigation, to the pubblico ministero (public prosecutor) acting under a reasoned authorisation decree issued by the judge (para. 4). Except in the case covered by para. 3, evidence obtained in breach of these rules cannot be used (para. 7).

The Sixth Division referred the question because of a long-standing conflict. Under a first reading, the safeguards also apply to a defence lawyer under investigation (Div. 6, no. 3804 of 1992, filed 1993; Div. 2, no. 44892/2022). This reading follows Sezioni Unite judgments no. 24 and no. 25 of 1993, which, however, had not directly addressed that situation. Under the other reading, the safeguards do not operate when the lawyer is under investigation: this has been a consistent line of authority since 1998 (Div. 2, no. 6766/1998), up to Div. 2, no. 44941/2024.

Why it matters. Law offices also hold the files of other clients. According to the line of authority now endorsed, the safeguard protects the right of defence (art. 24 Cost., Italian Constitution) and is not a privilege of the profession (Div. 6, no. 20295/2001, cited in the referral order).

In practice.

For the lawyer under investigation. The office can still be searched, within the limits of para. 1. It is necessary to check the judge’s authorisation, that the magistrate carries out the act in person and that the Bar Council has been notified, and to have any irregularities entered in the record. A riesame (review before the Tribunale del riesame) must be sought within ten days of the execution of the seizure or of learning of it (arts. 257 and 324 c.p.p.), raising the breaches of paras. 3 and 4.

For the Bar Council. Notice is due in these cases too.

For third-party clients. The prohibition in para. 2 and the limit in para. 1(a) also operate in their favour.

Frequently asked questions.

Can the office of a lawyer under investigation no longer be searched?
It still can. What changes is the form the act must take.

What if the Bar Council was not notified?
The act is null (para. 3), and para. 7 excludes this case from the rule that evidence cannot be used. It is not an absolute nullity. If the party is present at the act, the nullity must be raised before the act is performed or, if that is not possible, immediately afterwards; in other cases, within the time limits of arts. 180 and 181 (art. 182 c.p.p.). The exclusion of evidence applies instead to other breaches, such as the lack of the judge’s authorisation.

Are the reasons for the judgment available?
No. For now there is only the informazione provvisoria (provisional notice of the decision).

Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.