Judgment No. 18381 of 2024 and the Nature of the Power of Attorney for Litigation
The recent order No. 18381 of July 5, 2024, by the Court of Cassation represents an important clarification on the subject of the power of attorney for litigation, emphasizing the specific role of the defense lawyer in certifying the signature. This topic is of considerable relevance to all those who operate in the field of civil law and to legal professionals who must manage issues of representation in court.
The Regulatory Context of the Power of Attorney for Litigation
The power of attorney for litigation is a fundamental legal act in civil proceedings, allowing a person to delegate to another (the defense lawyer) the power to represent them in court. Article 83 of the Code of Civil Procedure establishes the methods of conferral and the necessary forms for the validity of the power of attorney. However, the issue becomes complicated when discussing the authentication of the signature of the person granting the power of attorney.
The Ruling's Maxim and its Meaning
POWER OF ATTORNEY - AUTHENTICATION OF SIGNATURE Power of attorney - Certification by the defense lawyer of the authenticity of the signature - Function - Authentication in the proper sense - Exclusion - Proof of authenticity - Attestation of the signature in the presence of the defense lawyer - Necessity - Exclusion - Obligation to identify the person issuing the unilateral power of attorney - Exclusion. In the matter of powers of attorney for litigation, the certification by the defense lawyer of the authenticity of the signature, as a "minor authentication," has only the function of attesting that the signature belongs to a specific person and is not to be understood as authentication in the proper sense, such as that carried out according to the provisions of art. 2703 of the Civil Code by a notary or other authorized public official, with the consequence that it is not necessary for the defense lawyer to attest that the signature was affixed in their presence, nor that the defense lawyer assumes, upon authenticating the signature, the obligation to identify the person issuing the unilateral power of attorney.
This maxim clarifies that the defense lawyer's certification is not equivalent to a formal authentication as required for notarial acts. In essence, the defense lawyer is called upon to certify that the signature belongs to a specific person, but is not obliged to attest that the signature was affixed in their presence. This represents an important simplification for legal practices, reducing the bureaucratic burdens on professionals.
Practical Implications of the Judgment
The implications of this judgment are manifold:
- Reduction in the need for the physical presence of the defense lawyer at the time of signing;
- Clarity on the importance of the defense lawyer's certification as a "minor authentication";
- Possibility of streamlining procedures and timelines in managing powers of attorney;
- Greater accessibility for clients in granting mandates to their lawyers.
It is essential for legal professionals to understand these dynamics in order to best assist their clients, while ensuring the validity of the proposed legal acts.
Conclusions
In conclusion, order No. 18381 of 2024 represents a step forward in simplifying the regulations concerning powers of attorney for litigation. It offers useful clarifications for defense lawyers and their clients, highlighting the function of the defense lawyer's certification without burdening the process with unnecessary requirements. It is important for lawyers to stay updated on such jurisprudential developments to ensure legal practice is increasingly efficient and in step with the times.
