Asset Prevention Measures and Proof of Lawyer's Credit: The Court of Cassation on Ruling no. 10387/2024

With ruling no. 10387, filed on March 14, 2025 (hearing of November 6, 2024), the Sixth Criminal Section of the Court of Cassation returns to address the delicate relationship between asset prevention measures and the protection of creditors, taking a stance on the evidentiary burdens of those who – particularly a lawyer – request the admission of their credit in the specific incidental verification proceeding. The case provides an opportunity to clarify the boundaries between defense guarantees and the need to prevent illicit assets from surreptitiously returning to the possession of the subject.

The Regulatory Context: The Anti-Mafia Code

The asset prevention measures regulated by Articles 52-59 of Legislative Decree no. 159/2011 (the so-called Anti-Mafia Code) aim to remove illicitly accumulated wealth from organized crime. After confiscation, the judicial administrator draws up the list of liabilities, and creditors have thirty days to request the admission of their credits. The prevention court, with particularly extensive ex officio powers, verifies not only the existence and amount but also the lawful origin of the obligation.

The Cassation Court's Decision

In matters of asset prevention measures, where the admission to the list of liabilities of a credit arising from the practice of the legal profession is requested in the incidental verification proceeding, the applicant cannot limit themselves to attaching the issued invoice but is required to prove the concrete existence of their right, documenting the effectiveness and extent of the activity carried out through a bill of costs for expenses incurred and services rendered, duly signed and accompanied by the opinion of the competent professional association, given that the judgment on this point is characterized by the attribution to the judge of ex officio verification powers aimed at balancing the need to protect creditors with the public interest in preventing the surreptitious establishment of convenient credits intended to allow the subject to regain possession of wealth of illicit origin.

The Court, confirming the rejection issued by the Court of Rome on June 10, 2024, emphasizes that a lawyer cannot rely solely on the invoice as "proof" of the credit: it is necessary to demonstrate, with an analytical bill of costs signed and endorsed by the Bar Council, that legal assistance was actually provided and to the indicated extent. In its absence, the judge – vested with ex officio investigative powers – must deny admission, in order to avoid the artificial creation of credits intended to reintroduce sums of illicit origin into the economic circuit.

The ruling is part of a consistent line of case law (see Cass. rulings nos. 4005/2024, 46099/2023) that emphasizes the strengthened evidentiary burden for professional credits within prevention proceedings, clearly differentiating them from bankruptcy proceedings: in the latter, the principle of party disposition prevails; here, however, the public interest in security prevails.

Practical Implications for Professionals and Creditors

For lawyers – but the discussion applies to all professionals – the ruling indicates a precise evidentiary path.

• Prepare an analytical bill of costs detailing hours, activities performed, and out-of-pocket expenses.
• Have it endorsed by the relevant Bar Association or competent legal association.
• Attach any written mandates, briefs, court documents, or emails attesting to the service rendered.
• Demonstrate the causal link between the service provided and the "subject" (or company attributable to him) subject to confiscation.

Without these elements, the request risks being rejected with an order to pay costs. Furthermore, the court recalls that the judge may conduct independent investigations, request additional documentation, and even order asset investigations to verify the actual existence of the credit.

Conclusions

Ruling no. 10387/2024 reinforces the trend that places the creditor-proof at the center of the verification phase, balancing the right to credit with prevention objectives. The message is clear: the professionalism of the lawyer is not in question, but it must be demonstrated with documentary rigor when confiscated assets are involved. Law firms are therefore called upon to structure the reporting of their services even more accurately, certain that good documentary compliance is the best ally for having their credit right recognized, even in contexts of high criminal sensitivity.