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Art. 10 BGFA — Inspection of the Register
#Doctrine
#1. Legislative History
N. 1 Art. 10 BGFA governs who may inspect the cantonal register of lawyers and under what conditions. The provision originates in the Federal Council's dispatch of 28 April 1999 (BBl 1999 6013, p. 6045). In that dispatch, the Federal Council stated that the register-related provisions of the BGFA serve primarily the purpose of inter-cantonal harmonisation: the cantons have always maintained registers of lawyers, but their content, public character, and accessibility were governed heterogeneously until the BGFA entered into force. The BGFA created, for the first time under federal law, uniform minimum standards for the content of the register (→ Art. 5 BGFA) and for inspection thereof.
N. 2 During the parliamentary process, Art. 10 went through several readings: National Council (1 September 1999, diverging from the draft), Council of States (20 December 1999, divergence), renewed National Council debate (7 March 2000), referral back to committee by the Council of States (16 March 2000), further elimination of differences (Council of States 5 June 2000, National Council 14 June 2000), approval by the Council of States (20 June 2000), and adoption in the final vote of both chambers (23 June 2000). The Federal Supreme Court confirmed the purpose of the register-law framework of the BGFA in BGE 150 II 308 E. 5.7: «Die registerrechtlichen Vorgaben des BGFA bezwecken eine blosse Vereinheitlichung zwischen den Kantonen» (with reference to BBl 1999 6013, 6045 and 6061, and BGE 130 II 270 E. 3).
N. 3 Regarding the professional title — also discussed in the dispatch (BBl 1999 6013, pp. 6040 f.) — the current BGFA provides special rules for EU/EFTA lawyers (→ Art. 22, Art. 31 BGFA). The dispatch had also considered whether the use of the title of lawyer should be prohibited for unregistered persons; the Federal Supreme Court had already characterised a corresponding former Art. 5 of the Geneva Lawyers' Act as disproportionate, and this option was therefore rejected (BBl 1999 6013, p. 6041).
#2. Systematic Classification
N. 4 Art. 10 BGFA is located in the first chapter of the Act («Freedom of movement and register», Art. 1–11) and, together with Art. 5 BGFA (register content), Art. 6 BGFA (registration), and Art. 9 BGFA (deletion), forms the core of the federal register law. The register under Art. 5 BGFA contains, among other things, disciplinary measures that have not been deleted (Art. 5 para. 2 lit. e BGFA); Art. 10 BGFA determines who has access to this information.
N. 5 The register law of the BGFA is to be distinguished from the disciplinary regime (→ Art. 17–20 BGFA), but stands in close functional connection with it: disciplinary measures are noted in the register (Art. 5 para. 2 lit. e BGFA) and removed once the deletion periods under Art. 20 BGFA have expired. Art. 10 para. 1 lit. c BGFA grants cantonal supervisory authorities access to the register «upon request», in order to ensure adequate information on disciplinary measures in inter-cantonal relations (BGE 150 II 308 E. 5.7).
N. 6 Art. 10 BGFA exists in a constitutional tension between the public interest in transparency regarding the professional integrity of registered lawyers on the one hand, and the constitutionally protected right to data protection (→ Art. 13 FC, protection of privacy) on the other. The graduated right of inspection — broadly for authorities, restricted for the public — accommodates this tension. In BGE 148 I 226 E. 5.3.4, the Federal Supreme Court drew on Art. 10 BGFA as a reference model for a proportionately designed system of publicity and recognised the differentiated right of inspection as constitutionally compliant.
#3. Normative Content / Elements of the Provision
N. 7 Art. 10 BGFA governs two categories of persons entitled to inspect the register:
Para. 1 (official inspection): Inspection of the entire register is granted to:
- lit. a: Federal and cantonal judicial and administrative authorities before which the lawyers appear. The decisive criterion is forensic activity (→ Art. 2 para. 1 BGFA); inspection serves these authorities to verify whether the person appearing before them is authorised to represent parties (→ Art. 4 BGFA).
- lit. b: Judicial and administrative authorities of EU and EFTA member states before which lawyers entered in the register appear. This provision corresponds to interstate freedom of movement (→ Art. 21 ff. BGFA).
- lit. c: Cantonal supervisory authorities over lawyers, upon request. The request requirement serves inter-cantonal exchange of information in disciplinary matters; the supervisory authority of the canton where the conduct occurred can thereby obtain information on earlier disciplinary measures from the register canton (BGE 150 II 308 E. 5.7).
N. 8 Para. 2 (public inspection): The public may upon enquiry request to be informed whether a specific person is entered in the register and whether a permanent or temporary prohibition on practising the profession has been imposed on them. The scope of this information is deliberately limited: the public receives only binary information — registered status yes/no and any prohibition on practising the profession — but not the full content of the register including all disciplinary measures (Bohnet/Martenet, Droit de la profession d'avocat, 2009, pp. 316 f.; Staehelin/Oetiker, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 and 3 on Art. 10 BGFA, cited in BGE 148 I 226 E. 5.3.4).
N. 9 The term «public» is to be understood broadly: it encompasses natural and legal persons as well as organisations that cannot invoke an official right of inspection under para. 1. The public right of inspection under para. 2 is unconditional in the sense that it is not made dependent on any specific interest — but is strictly limited in content to the information mentioned. Clients, potential clients, insurers, or media may rely on para. 2.
N. 10 Inspection under para. 1 lit. c by cantonal supervisory authorities takes place «upon request». In the context of Art. 16 para. 2 BGFA, the Federal Supreme Court clarified in BGE 150 II 308 E. 5.9 that foreign supervisory authorities may also thereby obtain knowledge of already-deleted disciplinary measures, to the extent that these are known to the supervisory authority from its own files — since Art. 10 BGFA governs inspection of the register, but does not establish a prohibition on the use of information obtained by other means.
N. 11 Art. 10 BGFA contains no explicit provision on the form of the enquiry or the response deadline of the register-keeping authority. The procedural modalities — including any fees — are governed by cantonal law (→ Art. 34 para. 1 BGFA). It should be noted that the right of inspection under para. 1 lit. a is triggered by the forensic activity of the registered person («before which the lawyers appear»); an unsolicited bulk enquiry by an authority is not covered by the provision.
#4. Legal Consequences
N. 12 Inspection of the register under Art. 10 BGFA is a legal instrument for protecting the public against unauthorised or disciplinarily compromised persons offering legal services. No immediate legal consequences flow from the inspection itself; it serves an informational purpose. Indirectly it protects:
- Clients: The possibility of a public enquiry under para. 2 allows persons to verify in advance whether a lawyer is authorised and whether a prohibition on practising the profession exists. In judgment 2C_430/2013 E. 4.4, the Federal Supreme Court held: «Das Publikum, zu dessen Schutz das Anwaltsregister u.a. dient (Art. 10 Abs. 2 BGFA), kann von einem eingetragenen Anwalt mit Fug erwarten, dass er grundsätzlich in der Lage ist, Klienten vor Gericht zu vertreten (Art. 4 BGFA).»
- Judicial authorities: Inspection under para. 1 lit. a enables courts to verify the authority to represent of persons appearing before them, without having to rely on their own knowledge.
- Inter-cantonal supervision: Inspection under para. 1 lit. c ensures the flow of information between the supervisory authorities of the various cantons; it is an instrument of inter-cantonal disciplinary coordination (→ Art. 16 BGFA).
N. 13 Under para. 2, the public does not receive a comprehensive disciplinary history. In particular, private individuals are not informed whether a warning, a reprimand, or a fine has been imposed against a lawyer. Only a permanent or temporary prohibition on practising the profession must be disclosed to the public. This is a deliberate proportionality assessment in favour of the protection of personal data (→ Art. 13 FC): lesser disciplinary measures are to be resolved in the relationship between lawyer and client; only a prohibition on practising the profession is of a sufficiently serious nature to be made public (BGE 148 I 226 E. 5.3.4).
N. 14 A breach by the canton of its duty to maintain the register properly may give rise to a liability claim under cantonal state liability law. The federal law provision Art. 10 BGFA does not, however, establish a direct claim for damages against private individuals.
#5. Contested Issues
N. 15 Admissibility of relying on deleted disciplinary measures: The most significant contested issue in connection with Art. 10 BGFA concerns the question of whether disciplinary measures deleted from the register of lawyers (after expiry of the periods under Art. 20 BGFA) may be taken into account in determining new sanctions. Brunner/Henn/Kriesi (Anwaltsrecht, 2015, p. 251) take the view that measures no longer visible in the register must be disregarded in new disciplinary proceedings. The Federal Supreme Court expressly rejected this view in BGE 150 II 308 E. 5.5 and 5.10 and held that the register-law framework of Art. 10 BGFA «lediglich die Einsicht in die Register» governs, but does not establish a prohibition on the use of earlier facts known outside the register.
N. 16 The Federal Supreme Court grounds its position in BGE 150 II 308 E. 5.7–5.10 teleologically: disciplinary measures serve primarily to protect the public (BGE 150 II 308 E. 7.6); this protective purpose requires that the supervisory authorities be able to fully assess the professional background of the person concerned. Deleted sanctions lose significance as time passes, but are not wholly irrelevant. In doing so, the Federal Supreme Court departs from the criminal law prohibition on relying on deleted previous convictions (formerly former Art. 369 para. 7 SCC, repealed as of 23 January 2023) and creates an area-specific disciplinary law regime.
N. 17 Scope of public inspection: Bohnet/Martenet (Droit de la profession d'avocat, 2009, pp. 316 f.) emphasise that the public right of inspection under Art. 10 para. 2 BGFA is granted unconditionally, i.e. it does not depend on a demonstrated interest. However, Staehelin/Oetiker (Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 and 3 on Art. 10 BGFA) qualify this by stating that cantonal authorities may only communicate to the public under para. 2 the information expressly mentioned (registration status and any professional prohibition). A more extensive claim — for example to information on the specific amount of a fine or on the nature of the professional duty violation committed — is to be rejected according to prevailing legal scholarship and case law.
N. 18 Publication of disciplinary measures in the cantonal official gazette: An important contested issue clarified by BGE 150 II 308 E. 7.3–7.9 is whether cantons may, in addition to Art. 10 BGFA, order official publication of disciplinary measures in the cantonal official gazette. The Federal Supreme Court answered in the negative: the BGFA exhaustively regulates disciplinary measures (BGE 132 II 250 E. 4.3.1; BGE 130 II 270 E. 1.1); publication in the official gazette constitutes an independent repressive sanction that is not provided for in the catalogue of Art. 17 BGFA and is therefore incompatible with the supremacy of federal law (Art. 49 para. 1 FC). To the extent that Art. 10 BGFA provides for targeted publicity through the publication of the register entry (→ Art. 6 para. 3 BGFA), this is exhaustively regulated under federal law.
#6. Practical Notes
N. 19 For courts and authorities (para. 1 lit. a–b): Before commencing a hearing or taking procedural steps, courts must verify the authorisation of the lawyer appearing before them if doubts arise. The right of inspection under para. 1 lit. a exists only in relation to lawyers appearing before the respective authority. A precautionary register query concerning arbitrary persons is not covered by the provision.
N. 20 For cantonal supervisory authorities (para. 1 lit. c): When initiating disciplinary proceedings against a person who is not registered in the register of the canton conducting the proceedings (→ Art. 16 para. 1 BGFA), the supervisory authority of that canton should, upon request, inspect the register of the canton of registration in order to ascertain any earlier disciplinary measures. According to BGE 150 II 308 E. 5.9, the supervisory authority may, within the framework of Art. 16 para. 2 BGFA, also inform inter-cantonal authorities of earlier misconduct, even if those sanctions have already been deleted from the register.
N. 21 For the public (para. 2): The right of enquiry is informal. A written or oral enquiry to the register-keeping cantonal authority, specifying the name of the person sought, is sufficient. The information provided is limited to registration status and any prohibition on practising the profession. There is no entitlement to further information (amounts of fines, nature of the violation). The enquiry may also have an inter-cantonal dimension if it is unclear in which cantonal register the lawyer is registered; in that case, multiple enquiries to various cantonal authorities are required, since the BGFA does not provide for a central national register (→ Art. 5 para. 1 BGFA: each canton maintains its own register).
N. 22 Relationship to publication under Art. 6 para. 3 BGFA: Registration in the cantonal register of lawyers is publicly announced under Art. 6 para. 3 BGFA; this is to be distinguished from inspection under Art. 10 BGFA. The announcement is a one-off act upon registration, whereas Art. 10 BGFA establishes a permanent right of inspection and enquiry. Any periodic publication of the register content going beyond this — in particular of disciplinary measures — is not provided for under federal law and is impermissible under cantonal law (BGE 150 II 308 E. 7.5 and 7.9).
N. 23 Data protection constraints: When providing information under para. 2, the cantonal authorities must observe the principles of data protection law. The information is to be limited to what is mandatorily required under federal law. Any more stringent cantonal data protection acts may impose stricter requirements on the documentation and logging of enquiries. The principle of proportionality recognised in BGE 148 I 226 E. 5.3.4 in relation to the disclosure of data on disciplinary measures also applies to the inspection regime of Art. 10 BGFA.
#Cross-references
- ↔ Art. 5 BGFA (register content as the subject of inspection)
- → Art. 6 BGFA (registration and announcement)
- → Art. 9 BGFA (deletion as the counterpart to registration)
- → Art. 16 BGFA (inter-cantonal disciplinary coordination, which builds on Art. 10 para. 1 lit. c)
- ↔ Art. 17–20 BGFA (disciplinary measures: register content and deletion periods)
- → Art. 34 para. 1 BGFA (cantonal procedural law for register enquiries)
- → Art. 13 FC (protection of privacy and data protection as a limiting factor)
- → Art. 49 para. 1 FC (supremacy of federal law: prohibition of more extensive cantonal sanctioning publicity)
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