Italian law requires that a lawyer assisting a client in a judicial proceeding must be provided with a power of attorney (procura alle liti) from its client. With this document a client designates a lawyer to conduct the trial on its behalf. With regard to civil proceedings, the power of attorney is specifically regulated by the Italian Civil Procedure Code that provides for its requirements. It is an important document of every judicial proceeding and as such must be presented in court. Its invalidity might also negatively affect the judicial proceeding and ultimately lead to the rejection of the legal action.
Power of attorney
Signature Authentication by an Italian lawyer
Power of attorney
Type
The Italian Civil Procedure Code states that the power of attorney could be given to an Italian lawyer for an indefinite number of judicial proceedings involving the client, also known as general power of attorney (procura generale alle liti); or it could be given only for a specific proceeding as a special power of attorney (procura speciale alle liti).
Form
Given its importance to both the client and the judicial proceeding, the power of attorney is given in a particular form and it could either be a:
Public deed (atto pubblico) – the power of attorney is drawn up by a notary or other public official with the formalities required by law
Private agreement with authenticated signature (scrittura privata autenticata) – the power of attorney is signed in front of a public official that determines the identity of the signatory.
The law allows Italian lawyers to authenticate the signature of their clients without the need of a public deed or the assistance of a public official. The private agreement is then valid and can be presented in court.
Signature Authentication by an Italian lawyer
This in one of the few occasions where a lawyer in Italy can authenticate a signature as this is usually done by a notary or a public official. The ability to authenticate is therefore limited to the power of attorney and must also meet certain criteria.
To this regard, the lawyer must be present when the client signs the power of attorney and can authenticate the signature only after the identity of the client has been established.
during the lockdown period this provision was lifted due to the social distancing rules, allowing lawyers to certify the signature even if the client was not present
Power of attorney from clients living abroad
The ability to authenticate the signature of its clients is valid only within the Italian territory. This means that even if an Italian lawyer is for example physically present in the UK, Germany or France, the power of attorney is not valid as it has no authority to authenticate a signature made abroad.
Even if an individual is living abroad (or in case of non-Italian businesses), it is still possible for a lawyer to authenticate a signature when the client is physically present in Italy. In this case, it is important to save any proof of the travel (such as plane tickets) in the event the counterparty objects to the validity of the signature on power of attorney.
Alternatively, if this is not feasible, it is possible to obtain a notarised power of attorney.
Notarised power of attorney
If the power of attorney is issued abroad, it must be authenticated by an authorised public official of the foreign country (which in some jurisdictions is a notary, whereas in others a lawyer or both).
In accordance with the Italian international private law, the power of attorney must take the form prescribed by the law of the country in which it is issued.
For such a document to be valid in Italy, it is necessary that the jurisdiction where the power of attorney is issued recognises the concepts of public deed and private agreement with authenticated signature (as described above).
With regard to the private agreement with authenticated signature, it shall consist in:
The prior verification of the signatory’s identity
and
The declaration of the public official that the document has been signed in its presence
The authenticated power of attorney shall also be translated in Italian. This relates not only to the content of the document (which is usually provided by the lawyer in Italian and another language), but also to the authentication activity carried out by the public official (i.e. the declaration that the document has been signed in its presence after having identified the signatory’s identity).
Legalisation and apostille
Depending on the country where the power of attorney is issued, there might be a requirement to legalise and attach an apostille to the document.
It is important to seek the assistance of the public official authenticating the power of attorney as bilateral agreements between Italy and the country of residence might exempt from the legalisation or apostille.
