The representation and defense activity in court carried out by the State Attorney's Office presents characteristics of absolute originality compared to the professional activity of the lawyers of the free court, precisely as a consequence of the role it plays as a state body institutionally responsible for the legal defense of public administrations and the care of related public interests.
Civil judgments constitute the procedural venue, the place of choice for the defense of the patrimonial and non-patrimonial sphere of the State, in which the peculiarities of the legal profession's litigation activity and the prerogatives by which it is assisted are more clearly understood, instrumental to the purpose of that defence, especially with reference to the regulation of the revenue court , the regime of notification of judicial documents and the conformation of the ius postulandi .
Unlike the systems adopted in other systems, the Lawyer's Office provides, in the exercise of its patronage, not so much and not only for the direct protection of the interests of the individual administrations or entities sponsored, but rather for the pursuit of the general and exclusive interests of the State in its unity, which can also transcend the peculiar ones constituted by the defeat or victory in individual cases.
From this perspective, the principle of compulsory legal aid and exclusivity of defense reserved to the State Attorney's Office is founded: the jus postulandi attributed to it is understood by the law in its broadest sense.
There is no shortage of hypotheses contemplated by the law, in which public administrations can take legal action directly by making use of their own employees (this is the case of art. 417 bis cpc, on labor disputes, or also of art. 23 of law no. 689/81 regarding opposition to orders - injunction), but this is still a possibility foreseen to an extent limited to individual types of judgements.
In civil proceedings, therefore, the State can only be represented by the Lawyers' Office: it is no coincidence that the possibility of delegation to officials of the administration concerned or to legal attorneys (provided for by art. 2 TU n. 1611/33) concerns only judgments that take place outside the premises of the Lawyer's offices.
The peculiarity of the institutional role played by the state legal body is also reflected in the rule referred to in the art. 1, 2nd paragraph, of TU n. 1611/33, where we read verbatim that "lawyers and state prosecutors do not need a mandate in the exercise of their functions, not even in cases in which the ordinary rules require a special mandate, as long as it consists of their quality ".
The powers conferred by law on state lawyers are, thus, much broader than those of freelance defenders with power of attorney; in fact, by virtue of their qualification they can carry out, even without a special mandate, all procedural acts that the ordinary rules of procedure prohibit to defenders with power of attorney who do not have a special mandate or power of attorney.
However, it should be clarified that the now consolidated orientation in jurisprudence ignores the power of the State Attorney's Office to dispose of the disputed substantive law (see Cass., 2 February 1973, n.321; CdS, section IV, 7 March 1978, n. 178; CdS, 6 May 1980, n. 502; CdS, section IV, 6 April 2000, n. 1995), ownership of which is, consequently, reserved to the administration.
The principle derives from a precise legislative choice of clear division of tasks between state bodies: the State Attorney's Office formally has the position of the lawyer and the Administration that of the client, so it is only the latter that can dispose of "its" right .
It is clear, therefore, that the procedural representation of the Lawyer does not also entail the "substantial" representation of the PA
Pursuant to art. 1, 2nd paragraph of the aforementioned TU, the Lawyer's Office can, however, carry out all those procedural acts (such as, for example, the renunciation of the judicial documents) which, although not constituting a provision of the disputed substantive law, can nevertheless lead to substantial nature.
The fullness of the powers attributed by the art. 1, 2nd paragraph, cited above, is clearly manifested in relation to the powers of technical management of the dispute, the exercise of the various procedural faculties, and the useful conduct of the case.
It will therefore be the Lawyer's Office that decides when and how to start a dispute, and how to manage it, whether to propose a regulation of jurisdiction or competence, whether to decline arbitration jurisdiction, whether to appeal and what to object to. The management will remain totally entrusted to it even when it resorts, for representation in court, to freelancers or officials who must strictly comply with the instructions received.
As regards the methods of attributing the patronage of the State Attorney's Office to public bodies other than the State, the regulations are dictated by art. 43 TU n. 1611/33, which subordinates the provision of patronage to such bodies to the prior issuing of state authorisation, which can be given, first of all, by law, at the time of the establishment of the body or subsequently; it can also be contained in a regulation or in another measure approved by presidential decree (in this case we speak of so-called authorized patronage).
If such authorization has occurred, the representation of the aforementioned bodies is assumed by the State Attorney's Office on an organic and exclusive basis, except in cases of conflict of interest with the State and the Regions.
The authorized bodies are, therefore, obliged to be supported by the Lawyer's Office, without being able, in general, to object to this. Only in special cases, and subject to a reasoned resolution to be submitted to the supervisory bodies, will the entities themselves be able not to avail themselves of the State Attorney's Office (art. 11, 2nd paragraph, law 103/79, which has profoundly innovated the matter).
Consequently, it cannot be accepted that the State Attorney's Office is supported, in the exercise of its legal tasks, by professionals from the free legal profession, nor that bodies benefiting from authorized legal aid then make use of its activity only occasionally.
It should be clarified, however, that this regime only concerns entities which, due to their connection with the state structure or the interpenetration of their functions with those of the State, have very limited margins of autonomy.
The discipline is different for entities with true autonomy, among which the Regions emerge particularly clearly, for which it can be said that two competing defense systems coexist.
The first provides for the possibility for them to avail themselves organically and exclusively of the patronage of the Lawyers' Office, subject to the adoption of a resolution by the Regional Council (art. 10 of law 103/79). The second allows the Regions to request representation and defense in court from the Bar only occasionally, in relation to individual cases, without the need for a general resolution, pursuant to art. 107 Presidential Decree 616/77, which provides the Regions with the right to make use of the "technical bodies of the State".
In any case, differences between the legal profession and the Regions regarding the initiation of proceedings or resistance to the same are always resolved by the Regions themselves, as is also provided for authorized bodies (art. 12, 2nd paragraph, law 103/79 ).