The case, explained

Lawyer's liability for failure to provide information on mediation

6 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa

According to reports in the specialized press in September 2023, the case law orientation regarding sanctions for lawyers who fail to inform clients about mediation has been consolidated. This is no longer a mere formal irregularity, but a breach of contract that directly affects the validity of the mandate and the right to fees. By analyzing the provisions of Legislative Decree 28/2010 and the Code of Ethics, we will see how the disclosure obligation has become a pillar of informed consent. We will also present a twin case featuring our recurring characters to illustrate the practical consequences of this documentary omission.

Lawyer's liability for failure to provide information on mediation

In brief

The article analyzes the lawyer's liability arising from the breach of the obligation to provide written mediation disclosure under Legislative Decree 28/2010. Starting from recent case law developments, it explores the nature of the legal mandate and the sanction of voidability due to lack of informed consent, leading to the loss of the right to fees for services rendered, clearly distinguishing this from procedural sanctions against the party.

The fact
According to reports from outlets such as Cassazione.net and Quotidianogiuridico.it, several supreme court rulings have addressed litigation between professionals and clients regarding the payment of fees. At the heart of the matter are lawyers who, despite having performed their defense duties, failed to provide the client with written information on mandatory mediation at the time of the mandate. The issue reached the Supreme Court following oppositions to injunctions: clients, despite sometimes winning the case on the merits, pleaded the lawyer's breach of disclosure obligations. This stage of the litigation confirmed that the absence of the signed clause cannot be cured ex post, resulting in a genetic defect in the professional relationship.
The rules in play
The central rules in this case are:
1. Art. 4, paragraph 3, of Legislative Decree 28/2010, which requires the lawyer to inform the client in writing of the option or obligation of mediation, under penalty of voidability of the contract;
2. Art. 27 of the Forensic Deontological Code, which classifies the failure to inform as a disciplinary offense, breaching the duty of fairness and transparency towards the client;
3. Art. 1441 of the Civil Code, which regulates the voidability of contracts due to a defect in consent, allowing the client to dissolve the contractual bond due to the disclosure failure. The function of these rules is to protect the client by ensuring they can evaluate faster and cheaper alternatives to civil litigation. The main consequence is the loss of the contractual basis for the fee: if the contract is voidable and is annulled, the lawyer cannot demand the agreed amount.
What the case law says
The supreme court case law has clarified that the disclosure obligation is not a bureaucratic formalism but a requirement for the validity of consent. The judges specified that the information must be clear, specific, and written; verbal communication or a generic clause is not sufficient to satisfy the legislative mandate. The established orientation states that the violation entails the voidability of the mandate, making the lawyer liable for breach of contract. Recently, the possibility for the lawyer to claim fees through an action for unjust enrichment has emerged as a highly debated issue. As it is not uniquely resolved, the omission of such a specific legal obligation prevents the professional from economically benefiting from a relationship born in violation of transparency.
The twin case
Meanwhile, in Roccamesta…
Gaio Sventura decides to sue Ditta Sempronio & Figli for a supply of defective bolts. He goes to a local lawyer, who accepts the assignment with a handshake and immediately starts drafting the summons, forgetting to have him sign the mediation disclosure document. The case lasts three years and Gaio achieves a partial victory, but upon receiving the bill, he discovers he could have resolved everything in three months through mediation if only he had been informed of the related tax advantages. Furious, Gaio Sventura consults Avv. Prudenzia Cavillo, who immediately notices the absence of the written disclosure required by law. Ditta Sempronio & Figli paid the damages, but Gaio now contests his former lawyer's right to collect the 5,000 euro fee. The lawyer claims to have worked hard, but Avv. Prudenzia Cavillo notes that the legal mandate is voidable due to a defect in consent, as Gaio was not put in a position to choose the out-of-court path. Warning: the practical case is a hypothetical educational reconstruction and does not correspond to the real affair nor does it anticipate its outcome; any reference to real persons or entities is purely coincidental; the analysis is based exclusively on the norms and orientations referred to and constitutes general legal information, not legal advice.
Step-by-step analysis
The legal analysis of the case follows these steps:
1. Qualification of the relationship: the professional assignment constitutes a contract of mandate with representation, subject to specific formal requirements for mandatory disclosures;
2. Verification of omission: it is checked that at the time of signing the power of attorney, the separate document or the specific mediation clause under Legislative Decree 28/2010 was not provided;
3. Defect in consent: the absence of such information prevents the client from providing informed consent on the dispute resolution methods;
4. Plea of voidability: the client can plead the voidability of the contract before the judge, blocking the request for fee payment. In this sequence, the burden of proof lies with the professional, who must demonstrate having fulfilled the disclosure obligation in writing. The lack of the signed document makes the lawyer's defense extremely fragile.
Possible outcomes
For Gaio Sventura's case, these scenarios emerge:
1. Annulment of the contract: if Judge Giusto finds the omission, he declares the annulment of the professional mandate and the rejection of the lawyer's payment claim;
2. Settlement: the parties agree on a drastic reduction of the fee to avoid a ruling that would totally wipe out the honorarium, recognizing only the out-of-pocket expenses advanced;
3. Rejection of the plea: an unlikely scenario if the signature is missing, possible only if the lawyer proves that the information was contained in other documents clearly signed by the client.
From the twin case to the real case
Gaio's case highlights how the written form in mediation disclosure is an essential element of the relationship of trust. In the real case, the Supreme Court reiterated that transparency is not an option but a condition for the economic validity of the legal mandate. The debate remains open on the possibility of recovering part of the work through other legal actions, but the basic principle is clear: the professional who does not correctly inform the citizen about alternatives to trial loses the right to be paid for that trial.
Meet the cast of the columnGaio Sventura and the other inhabitants of Roccamesta return in every practical case.Read their stories
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What it teaches professionals
From the analysis of this case, fundamental lessons emerge for every lawyer:
1. Rigorous documentation: the mediation disclosure must be a separate and signed document, to be kept in the client's file;
2. Timeliness: information must be provided at the time of the mandate, not during the proceedings;
3. Review of templates: it is necessary to update mandate forms by explicitly including the tax advantages of mediation to avoid disputes over the generic nature of the clause.

References: D.Lgs. 28/2010Codice Deontologico ForenseCodice Civile

Editorial oversight: Avv. Federico Papa·ICAMUpdated 20 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

Frequently asked questions

Can the lawyer be paid if they only informed the client verbally?

No, the law expressly requires written information. In case of a dispute, proof of verbal information is not sufficient to save the contract from voidability.

What happens if the client signs the disclosure but the lawyer does not initiate mediation?

In this case, it constitutes a different form of professional liability for negligence, which could involve compensation for damages due to lost time or unnecessary legal costs.

Does the loss of fees also include out-of-pocket expenses advanced by the lawyer?

Generally, out-of-pocket expenses, such as court fees or notifications, are reimbursed as sums advanced on behalf of the client, but the right to professional fees is forfeited.