It does not constitute “collaboration infamily business” the position of the lawyer who in the months of June, July and August wants to work as an employee in the hotel owned by her husband. For the CNF (Opinion 24 March 2023, n. 9) it is a case incompatible with the exercise of the profession, even if the work is limited to the summer months and only on weekends. Not even the voluntary suspension from the profession would protect the member from the sanctions of the Council of the Order.
1. The case
The case that came to the attention of the CNF, following a report and request for an opinion from the COA of Fermo, concerns a lawyer who intends to work as an employee at the hotel owned by her husband and his family (s.a.s.), during the months of June, July and August, to carry out office activities, in the afternoon and evening and only a few days a week, mainly during the weekend.
The COA asks to know whether or not in this case it is necessary for the lawyer to suspend herself for the time in which she intends to carry out the activity at the family hotel.
2. Collaboration in the family business
L’art. 18 paragraph 1 of the forensic professional law (Law 31 December 2012, n. 247) establishes the incompatibility of the exercise of the profession of lawyer with continuous or professional activities of self-employment or employment and with the exercise of a commercial enterprise in one’s own name or in the name and on behalf of others.
In opinion no. 20 of 2013, the CNF had expressed itself in favor of the compatibility between the profession and the collaboration of the lawyer in the family business set up pursuant to art. 230 bis of the civil code
This starting from the fact that the art. 18 on the subject of incompatibility, limiting the individual’s right to carry out a certain activity, is to be considered as a rule of strict interpretation, not susceptible to analogical extension.
In the case examined at the time, it concerned the lawyer’s participation in a business activity, however exercised in the form of a family business.
Due to its peculiar features, the family business is an institution relating to the patrimonial organization of the family, within which the family collaborator simply has the right to maintenance and participation in any profit, without any form of remuneration for his work , and without any responsibility and therefore without participation in the management activity.
The compatibility between collaboration in the family business and the exercise of the legal profession would therefore find justification precisely because of the diversity with respect to participation in a commercial enterprise, and to paid subordinate work.
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3. Seasonal work
On the contrary, in the case submitted by the COA of Fermo, the lawyer’s collaboration would have taken the form of seasonal work, and therefore of real subordinate and paid work.
Due to this substantial difference, the CNF considered the prohibition of art. 18 paragraph 1 letter c. LP
4. No suspension
Neither would it be possible, states the CNF, for the lawyer to suspend herself from the profession for the time she was carrying out the seasonal work activity.
The suspension, provided for by art. 20 paragraph 2 of the forensic law, consists in the right to be suspended from the exercise of the profession, free from any reason. The COA must make an annotation in the register of the provision which takes note of the suspension.
However “during the period of voluntary suspension from the professional practice, the incompatibilities provided for by art. 18 of the LP”, as already established by the CNF in a previous opinion (n. 15/2014), because the incompatibilities do not concern the exercise of forensic activity but are “inherent in the permanence of the registration in the register and therefore in the conservation of status.”
In the case in question, concludes the CNF, the voluntary suspension would therefore not protect the member from the effectiveness of the measures taken by the COA as a consequence of the situation of incompatibility generated by the possible exercise of seasonal work.