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Art. 11 BGFA — Professional Title
#Doctrine
#1. Legislative History
N. 1 Art. 11 BGFA has its direct foundation in the Federal Council's Message of 28 April 1999 on the Federal Act on the Free Movement of Lawyers (BBl 1999 6013, 6042 f.). In that Message, the Federal Council pointed to the terminological fragmentation resulting from 26 different cantonal regulations on lawyers: the professional titles «Rechtsanwalt», «Fürsprecher», «Advokat» and «Avocat» were used differently depending on the canton and were conferred upon lawyers together with their cantonal licence. This diversity was incompatible with the goal of freedom of movement throughout Switzerland, because it left persons seeking legal assistance uncertain about the professional standing and authorisation of the person concerned (BBl 1999 6013, 6022).
N. 2 The consultation draft had envisaged a minimal federal-level regulation that would have allowed the cantons to enact supplementary provisions. The Federal Office of Justice and the majority of consultation participants criticised this approach due to the risk of duplication in supervision and legal remedies. The Federal Council subsequently opted for a conclusive federal regulation of the professional title — a qualified reservation in favour of the cantons in the sense that the cantons may continue to determine the specific title (e.g. «Fürsprecher» instead of «Rechtsanwalt»), while the principle of linking the title to the licence and the obligation to indicate the register entry apply uniformly (BBl 1999 6013, 6042 f.). The BGFA entered into force on 1 June 2002.
N. 3 During the parliamentary deliberations, Art. 11 BGFA (at that time discussed as Art. 10 of the draft) was not particularly controversial. The Council of States debate of 20 December 1999 focused on the relationship between the lawyers' licence and the register entry, and on the question of whether the lawyers' licence should be understood primarily as a certificate of competence or as an authorisation to practise the profession (cf. AB 1999 S 1158 ff., 1163, where Committee Rapporteur Saudan emphasised that the register entry — not the cantonal lawyers' licence — stood at the centre of the legislative work). The National Council decided on 1 September 1999 to deviate from the draft; after several rounds of conciliation proceedings, the final vote took place on 23 June 2000.
#2. Systematic Classification
N. 4 Art. 11 BGFA stands at the end of the first section («Freedom of Movement and Register», Arts. 1–11) and forms the link between the register system (→ Arts. 5–9 BGFA) and the substantive professional rules (→ Arts. 12–13 BGFA). The provision has a dual function: it regulates the use of the title (para. 1) and prescribes the duty of transparency in business dealings (para. 2). Systematically, it simultaneously protects two interests: the trust of the general public seeking legal assistance in the qualifications of the person calling themselves «Rechtsanwalt», and freedom of movement, in that the register's public accessibility makes it recognisable to which cantonal disciplinary regime the lawyer is subject.
N. 5 Art. 11 BGFA is closely linked to → Art. 3 para. 1 BGFA (cantonal competence to determine requirements for obtaining the lawyers' licence), → Art. 5 BGFA (maintenance of the cantonal lawyers' register) and → Art. 9 BGFA (deletion upon lapse of requirements). There is a reciprocal relationship with → Art. 12 BGFA (professional rules): the duty to use a truthful professional title is at the same time an expression of the general duty to practise the profession diligently and conscientiously (↔ Art. 12 lit. a BGFA). A misleading professional title may therefore violate both Art. 11 and Art. 12 lit. a BGFA (Administrative Court of Zurich, VB.2020.00534 of 30 September 2021, consid. 4.2).
#3. Elements of the Offence / Normative Content
3.1 Professional Title (para. 1)
N. 6 Art. 11 para. 1 BGFA obliges registered lawyers to use the professional title conferred upon them with the cantonal lawyers' licence. As an alternative, the «equivalent professional title of the canton in whose register they are entered» is permissible. This preserves room for the historically grown variety of titles: a lawyer who has been granted the Bernese «Fürsprecherpatent» may, in another canton whose register they are entered in, use that canton's equivalent title («Rechtsanwalt»). The Federal Supreme Court has interpreted this equivalence formula to mean that even a lawyer holding the Bernese «Fürsprecherpatent» but not entered in the register is entitled to use the title — and thereby enjoys a particular degree of public trust (Judgment 6B_629/2015 of 7 January 2016, consid. 4.3 f.).
N. 7 The personal scope of Art. 11 BGFA coincides with that of Art. 2 para. 1 BGFA: the provision applies to persons holding a cantonal lawyers' licence. This includes licence holders who are not entered in the register and who work exclusively in an advisory capacity. For this group of persons, Art. 11 para. 2 BGFA (obligation to indicate the register entry) has no effect, since they have no entry; the obligation to use the correct title under para. 1, however, also applies to them insofar as cantonal law links the use of the title to the licence (Judgment 2P.159/2005 of 30 June 2006, consid. 2.7; Judgment 6B_629/2015 of 7 January 2016, consid. 4.4).
N. 8 If a lawyer loses their licence — by withdrawal or surrender — the right to use the professional title lapses, since in those cantons that link the use of the title to the licence, the licence and the title are inextricably connected. The Federal Supreme Court has traditionally classified the lawyers' licence as a cantonal police permit (Judgment 2P.159/2005 of 30 June 2006, consid. 3.2; Judgment 6B_629/2015 of 7 January 2016, consid. 4.3.2); more recent case law has classified the lawyers' licence as a declaratory ruling in cantons that have structured the register entry as the sole authorisation to practise the profession (Judgment 2C_897/2015 of 25 May 2016, consid. 7.2.2). The classification has implications for the right to use the title under Art. 11 para. 1 BGFA: if the licence is a mere declaratory ruling, Art. 11 BGFA protects under federal law only the trust generated by the title, not access to the profession as a legal representative.
3.2 Indication of Register Entry (para. 2)
N. 9 Art. 11 para. 2 BGFA requires lawyers to indicate their entry in a cantonal register in their business dealings. This duty of transparency serves to inform the public seeking legal assistance: it should be able to recognise which lawyers appearing before courts are subject to the monopoly regime and thus to the professional rules and disciplinary supervision under the BGFA (Staehelin/Oetiker, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 5 on Art. 11 BGFA; cf. also BBl 1999 6013, 6022). «Business dealings» encompasses letterheads, email signatures, websites and advertisements — all means of communication through which the lawyer presents themselves as such to clients, authorities and courts.
N. 10 The indication of the register entry under para. 2 is intended to make lawyers appearing before courts (in the monopoly area, with register entry) distinguishable from those licence holders who have no register entry and work exclusively in an advisory capacity. The Federal Assembly expressly declined in the 2006 summer session to prohibit unregistered licence holders from using the title (AB 2006 N 901 f.). Accordingly, the absence of a register entry does not give rise to a prohibition on using the title, provided the licence remains in force; the obligation to indicate the register entry under para. 2 then simply falls away for lack of an entry (Judgment 2P.159/2005 of 30 June 2006, consid. 2.7).
3.3 Conclusiveness under Federal Law and Cantonal Latitude
N. 11 The BGFA regulates the professional title conclusively insofar as the register entry is at issue as a distinguishing criterion. With regard to the substantive form of the title itself — which of the cantonal variants of the title is considered «equivalent» — cantonal law retains latitude (→ Art. 3 para. 1 BGFA). The Federal Supreme Court has confirmed that the cantons may continue to determine whether and when a licence is granted and whether it is linked to the title (BGE 134 II 329 consid. 5.1 p. 332; Judgment 2C_897/2015 of 25 May 2016, consid. 6.2–6.4). Cantonal regulations that exclude licence holders without a register entry from using the title or subject them to additional conditions are compatible with federal law, provided they respect the principle of proportionality (Judgment 2C_897/2015 of 25 May 2016, consid. 7.3 f.).
#4. Legal Consequences
N. 12 Violations of Art. 11 BGFA — in particular the unauthorised use of the professional title or the failure to indicate the register entry — constitute breaches of the professional duties arising from the BGFA and may be sanctioned by the cantonal supervisory authority with disciplinary measures under → Art. 17 BGFA. The Administrative Court of Zurich confirmed a reprimand as a proportionate sanction for the misleading use of a professional title («Rechtsanwalt und öffentlicher Notar» without sufficient clarification of the spatial limitation of the notarial authorisation) (VB.2020.00534 of 30 September 2021, consid. 4.4 and 4.6).
N. 13 In addition to disciplinary consequences, the unauthorised use of the title of lawyer may be qualified at the federal level as an act of unfair competition: Art. 3 para. 1 lit. c of the Federal Act against Unfair Competition (UWG) declares the use of inaccurate titles or professional designations that are likely to create the impression of special distinctions or abilities to be unfair; intentional commission is punishable under Art. 23 UWG. At the cantonal level, minor criminal offence provisions may apply (as in the Canton of Lucerne, § 25 of the Minor Offences Act; see Judgment 2C_897/2015 of 25 May 2016, consid. 7.3). The BGFA itself does not protect the lawyers' title directly through a criminal provision, but indirectly through the disciplinary mechanism and the UWG sanction.
N. 14 For the unregistered licence holder whose licence is withdrawn, the right to use the title ends under the applicable cantonal law. Since the BGFA regulates the professional title rules conclusively for registered lawyers, but the protection of the lawyers' title for unregistered licence holders remains a matter of cantonal law, a bipolar protection system results: federal law (disciplinary supervision) for registered lawyers; cantonal law (title protection, minor criminal law, UWG) for licence holders without a register entry.
#5. Contested Issues
5.1 Legal Nature of the Lawyers' Licence and Use of the Title
N. 15 The question of whether the cantonal lawyers' licence constitutes a police permit or a declaratory ruling is directly relevant to Art. 11 BGFA, because it determines whether the licence has constitutive effect on the right to use the title. The older Federal Supreme Court case law and part of the academic literature classify the licence as a police permit (Judgment 2P.159/2005 of 30 June 2006, consid. 3.2; Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 672). By contrast, Kettiger and — in the context of Lucerne law — the Federal Supreme Court in 2016 classified the lawyers' licence as a declaratory ruling for cantons that have consistently structured the register entry as the sole authorisation for representation before courts (Judgment 2C_897/2015 of 25 May 2016, consid. 7.2.2; Kettiger, Entzug des Anwaltspatents, Jusletter 28 September 2009, p. 4). Under the declaratory ruling model, the right to use the title under Art. 11 para. 1 BGFA remains tied to the continued existence of the licence, but the licence does not itself confer the right of representation — that function belongs exclusively to the register entry. Amberg advocates for a future Lawyers Act a consistent separation between the certificate of competence (licence) and the authorisation to practise (register), which would fundamentally reshape Art. 11 BGFA (Amberg, Das neue Anwaltsgesetz, ZBJV 2015 p. 629, 635 and 640).
5.2 Use of the Title by Unregistered Licence Holders
N. 16 It is contested whether unregistered licence holders are entitled under federal law to use the lawyers' title, or whether cantonal law conclusively governs this matter. The prevailing practice permits the use of the title by licence holders without a register entry, provided cantonal law does not expressly prohibit it (cf. Judgment 2P.159/2005 of 30 June 2006, consid. 2.7, with reference to AB 2006 N 901 f.). Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 578, and Chappuis, La profession d'avocat, Tome I, 2nd ed. 2016, p. 22, point out that there is a public interest in protecting the trust generated by the lawyers' title, even for non-forensic licence holders. Staehelin/Oetiker, by contrast, emphasise that the reference to the register entry under Art. 11 para. 2 BGFA serves precisely to make lawyers appearing before courts — who are subject to the BGFA disciplinary regime — distinguishable from other licence holders; it follows that Art. 11 para. 1 BGFA in principle releases the use of the title for all licence holders, without establishing a monopoly for registered lawyers (Staehelin/Oetiker, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 5 on Art. 11 BGFA).
5.3 Personal Requirements for Grant and Withdrawal of the Licence as a Question of Competence
N. 17 Whether the cantons may make the acquisition of the lawyers' licence conditional upon personal requirements (e.g. no records of unpaid debts under debt enforcement proceedings) and withdraw it when those requirements cease to be met, touches upon Art. 11 BGFA insofar as the continued existence of the licence is a precondition for the right to use the title. The majority view in practice and academic literature affirms this cantonal competence (BGE 134 II 329 consid. 5.1 p. 332; Nater, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 3 BGFA; Fellmann, Anwaltsrecht, 2010, N. 684 f.; Bohnet/Martenet, op. cit., N. 576 ff.). A minority view (Kettiger, op. cit., pp. 4 f.) objects that the federal legislator, by enacting Art. 3 para. 1 BGFA, intended to leave only the professional requirements to cantonal competence, as follows from the systematic structure (Arts. 7 vs. 8 BGFA) and the wording of the Council of States debate. The Federal Supreme Court expressly rejected this minority view in Judgment 2C_897/2015, consid. 6.2.3.
#6. Practical Notes
N. 18 Lawyers must indicate in all means of communication (letterhead, email, website, advertisements) both the correct professional title in accordance with Art. 11 para. 1 BGFA and their register entry in accordance with para. 2. The indication of the register canton — not merely the professional title alone — is mandatory. A misleading presentation (e.g. «Rechtsanwalt und Notar» without clarifying that the notarial authorisation is spatially limited) violates Art. 11 para. 1 in conjunction with Art. 12 lit. a BGFA and may be sanctioned with a reprimand (VB.2020.00534 of 30 September 2021, consid. 4.2–4.6).
N. 19 For lawyers entered in the registers of several cantons, it suffices to indicate one of the register entries; there is no obligation to list all register entries in full. The prevailing practice permits indicating the register entry of the canton in which the main office is located. A person not entered in any cantonal register but holding a valid licence may in principle use the lawyers' title under Art. 11 para. 1 BGFA and the applicable cantonal law, but must refrain from indicating a register entry (since none exists) and may not operate within the monopoly area (→ Art. 4 BGFA).
N. 20 Holders of EU/EFTA qualifications entered in a list under Art. 28 BGFA have their own professional title regulation (→ Arts. 27–29 BGFA): they may present themselves under their home-state professional title; for EU/EFTA lawyers entered in the cantonal register under Arts. 30–34a BGFA, Art. 11 BGFA applies by analogy. Supervisory authorities examine compliance with the title obligation in the context of disciplinary supervision under → Arts. 14–20 BGFA; in the event of a violation of Art. 11 BGFA, all disciplinary measures under Art. 17 BGFA, graduated according to the severity of the fault, are applicable.
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