Il diritto alla difesa e il negozio giuridico tra avvocato e cliente stipulato per e-mailL'e-mail marketing negli studi legali

Abstract

My thesis deals with the issue of professional informative advertising by e-mail, from a legal and marketing point of view. The hypothesis is that a lawyer can have a perfectly effective, satisfactory relationship with his clients through e-mail, respectful of deontological principles. This means that e-mail is a valid tool for exercising the right and constitutionally guaranteed duty of defense. It should be noted that this study concernis Italian legislation and that the research has been conducted in Italy even if a comparison was made with other European countries. The research work has been developed in three phases: 1 the impediments to send professional e-mails; 2 the research; 3 arguments in favor of sending the professional email. The following impediments (a sort of sword of Damocles for lawyers) emerged: Forensic ethics and legal advertising. Although articles 17 and 35 of the current code of ethics have implemented the so-called Bersani decree, which admitted the use of "any means" for promotional reasons and provided that the advertising is informative, truthful and non-comparative, the deontological disciplinary bodies tend to interpret restrictively the aforementioned articles referring to the decorum of the profession, as protection of the image not only of the individual lawyer but of the entire category. Safeguarding the right to privacy. The sending of e-mail marketing represents what is defined by the Guarantor as an "unwanted communication" with consequent sanction for the lawyer. The only alternative to avoid committing an offense is to anticipate the sending of the promotional message by telephone. Customer grabbing. The disciplinary deontological bodies recognize in e-mail marketing the violation of art. 37, paragraph 5, of the forensic deontological code as with the use of this means the case of offering, without being requested, a personalized service takes place. From a careful analysis of the mentioned article 37 and from the examination of the relative jurisprudence, we can exclude that the sending of the e-mail to a category of subjects representing common interests can be comprehended within the case referred to in art. 37, paragraph 5 of the SFAO. The new forensic specialties. The Italian government with the D.M. 163/2020 wanted to respond to the need for lawyers to look for new clients (also considering the statistics of lawyers who cancel themselves from professional orders) with the lawyer acquiring additional professionalizing skills. This approach, certainly positive, is not enough for the writer if the part relating to their promotion is missing, that is, in our case, the sending of a marketing e-mail. All the superior arguments, in my opinion, hinder the exercise of the professional service, violating fundamental human rights. For all the mentioned reasons, it was necessary to start an in-depth analysis through three phases of research, conducted on the figure of school principals as potential customers. The first phase of research served to detect the best way to intervene with e-mail marketing from the point of view of training the lawyer. The results obtained showed that school principals need legal support to manage the out-of-court aspect of legal issues. The second research phase was carried out through a questionnaire addressed to school principals and their answers confirmed what was experienced in the first phase. The third phase of the research was conducted through the analysis of 199 websites that advertise law firms in Italy. The results that have emerged have brought to light data that confirm the caution with which lawyers approach the issue of online advertising. The tendency is to limit yourself to a static website with one-sided information. Considering the results of the research, the regulatory arguments were addressed that allow e-mail marketing to be recognized as a legal tool that can be used by the lawyer: The art. 24 of the Italian Constitution. The art. 24 refers to the judicial defense, , even if literally it does not exclude the extrajudicial defense. Profitable information, in our case through e-mail marketing, fully realizes the aspects of the technical and substantive defense. We can even speak of a "strengthened right of defence". The professional contract by e-mail. Simple e-mail is a valid tool for stipulating a professional contract. Technically, the proposer (the lawyer) sends the contract proposal by email and the recipient (client) replies with the acceptance email. The contractual agreement is concluded when the acceptance e-mail arrives at the proposer's e-mail address. In fact, the Cassation established with sentence n. 2319/2016, that email, even if not certified, is more than sufficient to establish a valid contractual relationship. The consumer code and electronic contracting. Directive 2000/31/EU and Directive 2011/83/EU, which in Italy have been implemented in Legislative Decrees no. 70/2003, no. 82/2002 and no. 21/2014, have fortified the system of protections that is guaranteed to the electronic consumer. Mainly, with the new legislation, the obligations recognized to the professional in terms of information for contracts concluded electronically are set out in detail and failure to comply with them determines a liability for the professional which is placed on the contractual level since the information is qualified as an integral part of the contract. The overview of the aspects covered allows us to assert that e-mail is a valid tool for exercising the right/duty of defence