It really doesn’t work that way. It would be the phrase leaked from the Quirinale regarding the amendment with the bonus for lawyers included in the law converting the Security Decree in the Senate. The 60-day deadline expires on April 25, if by that day the conversion law is not approved by both Chambers in identical text, the decree lapses. The Government, to secure the law, had decided to place a vote of confidence in the Chamber after the amended text issued by the Senate, but the amendment which contains a compensation of 615 euros from the State for lawyers who successfully assist (i.e. with effective repatriation) migrants who voluntarily choose to return home, poses problems that are difficult to resolve.
The 45 minutes of conversation between the President of the Republic and the Secretary of the Council of Ministers Alfredo Mantovano, in the late afternoon of April 20, made it clear that as it stands, with that controversial point, the reconversion law would risk returning to the Chambers without the signature of Sergio Mattarella.
We are currently looking for a solution: the most popular hypothesis is that the text is approved without modifications and that a new decree arrives immediately to correct the sore point: an unprecedented solution that some are already calling a “decree to fix a decree”.
In the meantime we asked Alberto Mittonecriminal lawyer, author with his colleague Fulvio Gianaria of very clear informative essays on the role of the legal profession, such as The lawyer of the future And The necessary lawyer (Einaudi), what is wrong with the amendment which he managed, after many rags flown during the referendum campaign, to reach an agreement National Bar Council, Union of Italian Criminal Chambers and National Association of Magistrates, all united in saying that proposing a state payment to the lawyer whose client chooses voluntary repatriation, taking away the client’s legal aid in the event of an appeal, is not something that can be done, under penalty of risking violating the principles of the right of defence, which the Constitution recognizes for everyone.
Attorney Mittone, what is in this amendment and why does it create problems? «This rule is political: they want to encourage the voluntary repatriation of migrants and they are looking for a way to obtain it, but the one they found with the amendment conflicts with article 24 of the Constitution, because the lawyer, when carrying out his mandate, must choose the suggestions most suited to the client’s will and not pursue other different interests».
Can you give us an example?
«If a client comes to me and tells me: I’m guilty but I want to defend myself by claiming innocence, I can decide whether to accept the mandate or not, but if I accept it then I have to follow his will. A bit like when the doctor believes that to save a patient an amputation must be performed but cannot impose it if the patient refuses. If a law, and this is the case of the amendment released by the Senate, guarantees or suggests an economic incentive to the lawyer who pushes his client in a direction, without being certain that the client has already decided in that direction, it eliminates the defense as provided for by the Constitution. It would be less problematic if it were established that the grant would arrive later, for the lawyer who assists a client who has already decided on repatriation.”
There is no risk of a conflict of interest arising between lawyer and client, i.e. that the lawyer, in suggesting to the client the path that could lead him in the direction of his own interest rather than that of the client,?
«If the payment occurs before the client has decided to repatriate, it is not acceptable especially since they are particular clients: they often understand the language poorly, they are maneuverable because in a condition of great weakness, one never knows how autonomous their decision is and how much is the lawyer’s. In a moment of professional crisis in the legal profession, there is a risk of introducing a hairy legislative innovation: a lawyer might think: who knows if and when he will pay me, if I convince him to choose voluntary repatriation, I will be paid regularly. In short, an indecent proposal but perceived as very decent by a lawyer who doesn’t care about the constitutional rules: let’s not forget that temptations and pressures exist, think of how much the lawyer risks being subjected to pressure from the client in contexts where there are organized criminal association crimes”.
Is it a profession at risk of indecent proposals?
«The boundary of what can and cannot be done must be indicated by conscience, because in the idea of certain clients that boundary can be very fluid: if a group of people asks you to assist their friend in prison, puts a bundle of money on the table and also asks you to go and say a certain thing, to bring a certain note, if you are a lawyer and don’t have a clear idea of the boundaries of your duties in prison you risk ending up there yourself. We must know how to avoid finding ourselves crushed between opposing temptations, on the one hand that of clients who can induce them to violate duties with the mirage of money, on the other hand that of the State which tries to make the lawyer do what is convenient for him”.
The Criminal Chambers see the risk of unfaithful legal aid, a crime under the penal code, in the potential conflict between personal and State interest and the client’s interest. Do you share the concern?
«I see more risk for ethical rules if the State pays for the lawyer to take one direction instead of another. Think about what it would be like if the State said that in mafia trials the lawyer who induces the client to confess will have the fee paid by the State. The example is different, but the substance is the same. We have always been convinced that the lawyer’s position is amphibious: on the one hand he must look to the interests of the client, but on the other he cannot do so to the extent of violating the rules of the State: if I manipulate the evidence in the client’s interest because they pay me a lot of money, and I eat or burn a piece of paper, I end up on trial, because I go against the regularity of the administration of justice. This amendment discussed in this sense is a very clever thing that encourages lawyers to distort ethical duties. Having thought so would seem to indicate a state power that aspires to an unequal relationship with justice, a concept that was also evident in the reform that was then rejected by the citizens in the referendum.”
