Lawyer Incompatibility: Analysis of Judgment No. 16668 of 2024

The recent judgment No. 16668 of June 14, 2024, issued by the Court of Cassation, addresses a topic of great importance for the legal profession: the incompatibility of lawyers who also serve as honorary judges. This decision represents an important clarification on the rules governing the professional activity of lawyers, particularly in relation to Article 5, paragraph 3, of Legislative Decree No. 116 of 2017, which replaced the previous Law No. 57 of 2016.

Regulatory and Jurisprudential Context

The central issue of the judgment concerns the interpretation of Article 4, paragraph 2, of the Constitution and the laws establishing the grounds for incompatibility for the practice of the legal profession. The Court emphasized that incompatibility is a limitation on the freedom to practice the profession, and therefore must be interpreted restrictively.

In general. A lawyer enrolled in the bar of a court who also exercises the functions of an honorary judge at another court, falling within the district of the same Court of Appeal, is not, for that reason alone, in a situation of incompatibility to carry out defense activities in a trial pending before that same court, given that Article 4, paragraph 2, of Law No. 57 of 2016 (now replaced by Article 5, paragraph 3, of Legislative Decree No. 116 of 2017) refers to the judicial district (of the court) and not to the district (of the Court of Appeal), and that such a rule – in providing a cause of incompatibility and, therefore, in limiting the general freedom to practice the profession, derivable from Article 4, paragraph 2, of the Constitution – is exceptional in nature and, in accordance with general principles, must be interpreted restrictively.

This maxim represents a fundamental principle for the legal profession, highlighting that the practice of law should not be subject to excessive restrictions, unless clearly justified by specific regulations.

Implications for the Legal Profession

With this ruling, the Court reiterates the importance of ensuring that lawyers can defend their clients even when they hold honorary judge positions, provided they operate within the same Court of Appeal district. This approach allows for greater flexibility in lawyers' careers and promotes synergy between different legal functions.

• Clarification of grounds for incompatibility for lawyers and honorary judges.
• Recognition of the freedom to practice the legal profession.
• Promotion of greater synergy between legal functions.

Conclusions

Judgment No. 16668 of 2024 represents a significant step in clarifying the boundaries of incompatibility for lawyers who also perform honorary judge duties. Through a restrictive interpretation of the incompatibility rules, the Court of Cassation has reaffirmed the principle of freedom to practice the legal profession, emphasizing the need to balance individual rights with the needs of the legal system. This decision not only offers greater certainty to lawyers but also contributes to ensuring a more efficient and integrated judicial system.