Legal advice: Who’s in-charge?August 28, 2021
Legal advice is provided by a professional, an expert in law, and not only by a lawyer registered on the register. There are in fact two different types of activities: the extrajudicial one, which takes place outside the courtrooms, and the judicial one.
When a person has a legal nature of the problem and often do not know where to turn. In this regard it is useful to clarify some concepts.
The first aspect to be analyzed concerns precisely the meaning of “ advice ”, that is, a provision of advice and opinions given by an expert in a particular subject.
This occurs in various fields, such as medical, financial, corporate, psychological, IT, work, and even legal.
In short, when a person does not have enough knowledge to do something, he relies on a professional.
From a legal point of view, however, a distinction needs to be made between out-of-court and judicial legal advice. In the first case, these are activities carried out outside the courtrooms, and can also be carried out by law graduates who have not taken the state exam and are therefore not registered in the register. In the second case, however, the activity is carried out in court exclusively by lawyers.
Having said that, it is clear that it is possible to turn to different professionals, depending on the problem to be solved.
What is legal advice?
Legal advice, but also inherent to other areas, is a provision of advice given by an expert in a specific subject .
In practice, the consultant has the task of clarifying the matter to the client, answering all the questions, trying to clarify the situation.
This is a fundamental activity to allow all those who do not have specific knowledge in particular areas to acquire the information and knowledge necessary to make decisions and solve problems.
The question becomes particularly important when it comes to the medical, banking, financial, but also legal sectors.
Having advice from experts is particularly important, therefore, to be able to deal with a situation in the best way, making the most appropriate decisions.
A lawyer , or a legal professional , mainly deals with:
- frame the situation described by the customer, linking it to the reference legislation, then bringing the case back into the specific case envisaged by the legislator
- identify the legal rules to be applied to the specific case
- research the jurisprudential precedents, or the judgments of the courts on similar issues, then describing to the client the most widespread orientations on the subject
- describe the various solutions that can be adopted to resolve the issue, in the light of the legal norms and the majority guidelines identified
The purpose of legal advice, as we have seen, is therefore to provide clarifications on legal issues , and find solutions to resolve the case in the best possible way.
Who can do legal advice?
Generally, people know that it is imperative to seek legal advice before taking a court case. In reality, the aim is often to try to avoid it by resorting to different activities.
For example, the professional can help the client find an agreement with the counterpart , through the so-called mediation . This is an out-of-court activity, which takes place outside the courtroom, with the aim of avoiding clogging the justice machine, but also to allow the interested party to solve the problem more quickly and effectively. The civil cases, are often very long, and involve a great waste of time, energy and money, considering also that the losing party must bear the legal costs of the winning one.
Thanks to the mediator, in fact, it is possible to identify ad hoc solutions, and to open a useful dialogue with the counterpart, to thoroughly analyze the mutual wishes and interests.
It must be said, however, that in some cases the law requires to act in this sense before continuing with the actual process, in fact we speak of compulsory mediation .
In some cases, however, the client may seek legal advice only to obtain information and clarifications regarding the consequences of certain actions.
The activities that take placeoutside the courtrooms , however, they are defined as out-of-court, while those that take place before the courts are defined as judicial.
There are considerable differences between the two cases, first of all:
- the judicial activity must be exercised by lawyers enrolled in the register
- the ‘ extra-judicial activities may also be carried out by non-authorized persons
That said, it means that legal advice can also be provided by an expert jurist, or by a law graduate or by a trainee lawyer who is not authorized to practice.
The fundamental prerequisite, in any case, is a law degree .
From what we have said, it is clear that when we talk about legal advice, we can refer to different activities, too often confused with each other.
The lawyer who must represent a client in a trial, in fact, needs the general power of attorney or the special power of attorney , to be able to represent the subject in a court, while if it is a matter of giving advice or carrying out out-of-court activities, an informal appointment is sufficient.
Out-of-court and judicial legal advice
Until now we have emphasized that, when it comes to legal advice, it does not always refer to the same type of activity, and it can be carried out by different professionals.
To become a lawyer in Italy it is necessary to pass a state exam, after having obtained a degree in law. Only in this way can the professional be regularly enrolled in the professional register, and subsequently represent his clients as attorney , in court cases.
The citizen who has to solve legal problems, in most cases needs legal advice. The law provides for the possibility of defending oneself alone only for cases of very low amount, although to avoid making mistakes, it is always advisable to seek the opinion of an expert.
Having said that, it is important to clarify that the assistance of a lawyer is not only mandatory when it comes to being defended in court, but also when related activities are to be carried out, for example the drafting of judicial documents , or assistance for the mediation, as we have seen.
As regards out-of-court activities, therefore carried out outside the courtroom, legal advice can also be carried out by non-law experts, graduated in law, but not registered in the Register.
The Supreme Court in this regard, he clarified the situation with the s entenza n. No. 12840/2006 , underlining that:
the performance of intellectual work in the context of legal assistance is reserved to members of the bar associations only within the limits of representation, assistance and defense of the parties in court and, in any case, of direct collaboration with the Judge in the context of the trial. Outside these limits, legal assistance and consultancy activities cannot be considered reserved for members of professional registers.
Even if the person providing legal advice is not a lawyer and therefore is not registered with the Bar, he or she has the right to be remunerated for the service provided . Enrollment in the bar is mandatory only when it is necessary to provide legal assistance in the trial stages.
However, in order to exercise this type of profession, and to ensure that no one is accused of abusive exercise of the profession, it is necessary to be registered with a professional order. In short, you have to be professionals.