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Art. 14 BGFA — Cantonal Supervisory Authority over Lawyers
#Doctrine
#1. Legislative History
N. 1 Art. 14 BGFA is based on the Federal Council's draft of 28 April 1999. The Federal Council's aim with this provision was to establish a coherent, intercantonal disciplinary supervision over all lawyers appearing before judicial authorities in a canton — irrespective of whether they are entered in the register of that canton (BBl 1999 6047). The draft provided that each canton designates a supervisory authority and that this authority extends its jurisdiction to all lawyers practising within its cantonal territory, not only to those registered with that canton.
N. 2 The Federal Council identified as the central coordination problem the situation in which a lawyer appears in Canton B but is registered in Canton A: the supervisory authority of the canton where the conduct occurred (Canton B) must inform the supervisory authority of the canton of registration (Canton A) of the opening of proceedings; the canton of registration has the right to submit observations; the outcome of the proceedings must be communicated to the canton of registration; and disciplinary measures that have entered into force must be entered in the register (BBl 1999 6047 f.). These coordination mechanisms aim to promote a uniform disciplinary practice and to prevent duplicate proceedings.
N. 3 During the legislative process, the provision underwent several parliamentary deliberation rounds. The National Council and the Council of States deviated from the draft in autumn and winter 1999; further steps to resolve differences followed in 2000, before the Act was adopted in the final vote on 23 June 2000. The parliamentary debates primarily concerned the question of the delimitation between the canton of registration and the canton where the conduct occurred, as well as the scope of the right to submit observations. The Act entered into force on 1 June 2002.
#2. Systematic Classification
N. 4 Art. 14 BGFA opens the third section of the BGFA («Professional Rules and Disciplinary Supervision», Art. 12–20). It constitutes the institutional foundation upon which the substantive professional rules (→ Art. 12 BGFA) and the law on sanctions (→ Art. 17 BGFA) are built: without a supervisory authority designated by law, there is no governmental substrate for the enforcement of professional duties.
N. 5 The provision is closely connected to registration law: Art. 5 para. 3 BGFA provides that the register of lawyers is maintained by the cantonal supervisory authority. The supervisory authority is therefore not only a disciplinary authority but also the registrar — a dual function that is central to intercantonal freedom of movement (↔ Art. 5, 6, 9 BGFA). Registration and deletion from the register, as well as disciplinary measures, are functionally interrelated: only the supervisory authority of the canton of registration may order a deletion under Art. 9 BGFA; disciplinary measures, however, may also be imposed by the supervisory authority of the canton where the conduct occurred.
N. 6 In relation to cantonal law, Art. 14 BGFA has a dual nature: it obliges the cantons to designate a supervisory authority (federal law as a framework requirement) while leaving them considerable discretion as to the institutional structure (reservation of organisational law in favour of the cantons, → Art. 3 BGFA). The disciplinary law itself is exhaustively regulated by the BGFA (BGE 129 II 297 E. 1.1; BGE 130 II 270 E. 1.1); cantonal law may, however, make available to the supervisory authority additional, non-disciplinary supervisory instruments (judgment 2C_665/2010 of 24.5.2011 E. 6.1).
#3. Elements of the Provision / Normative Content
3.1 Each Canton
N. 7 The wording «each canton» (chaque canton; ogni Cantone) establishes an unconditional federal law obligation: each of the 26 cantons must designate a supervisory authority. The provision admits no exceptions and contains no reservation in favour of small cantons. The federal legislator has thereby enshrined the principle of institutional completeness: the intercantonal freedom of movement of lawyers under Art. 4 BGFA presupposes that in every canton there is a functioning supervisory authority to which affected lawyers and persons entitled to lodge complaints may turn.
N. 8 The Act does not prescribe the type of authority that the cantons must designate (administrative authority, commission, court). The cantons have chosen various models: autonomous supervisory commissions (Zurich: Supervisory Commission for Lawyers), cantonal courts of appeal with delegated supervisory functions, or mixed commissions. Lucerne has combined the supervisory authority with a separate examination commission (judgment 2C_897/2015 of 25.5.2016 E. 4.1 ff.). As a matter of constitutional law, Art. 29a FC and Art. 86 para. 2 BGG require that there be access to an upper cantonal judicial authority against disciplinary decisions of the supervisory authority (BGE 132 II 250 E. 3; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 788 f.).
3.2 Designation of the Supervisory Authority
N. 9 The designation of the supervisory authority is effected by cantonal law. In practice it encompasses: (a) the identification of the competent body (by a legal norm, not merely an internal administrative instruction), (b) the regulation of the procedure, and (c) the configuration of the legal remedies. The designation must be sufficiently precise to allow a clear delimitation of jurisdiction.
3.3 Object of Supervision: Lawyers within Cantonal Territory
N. 10 The supervisory authority supervises all lawyers «who represent parties before judicial authorities on its territory». This defines the substantive and geographical scope of the provision. It covers:
- lawyers entered in the register of the canton concerned (primary jurisdiction of the canton of registration);
- lawyers from other cantons who appear in the canton where the conduct occurred by virtue of the freedom of movement under Art. 4 BGFA (secondary jurisdiction of the canton where the conduct occurred);
- EU/EFTA lawyers who practise permanently in Switzerland and have registered in the canton where the conduct occurred (→ Art. 27 ff. BGFA).
N. 11 Lawyers who exclusively provide legal advice and do not appear before judicial authorities fall outside the scope of Art. 14 BGFA (judgment 2C_897/2015 of 25.5.2016 E. 5.2.1; Poledna, BSK BGFA, Art. 14 N. 3). The fact that Art. 2 para. 1 BGFA limits the scope of the Act to representation of parties before judicial authorities is constitutive for the supervisory obligation: anyone who does not hold a mandate for representation of parties is not subject to the disciplinary supervision regulated by federal law.
3.4 Intercantonal Allocation of Jurisdiction
N. 12 When a lawyer appears in a canton other than the canton of registration, a conflict of jurisdiction arises between the supervisory authority of the canton of registration and that of the canton where the conduct occurred. The BGFA resolves this through the following coordination mechanisms (BBl 1999 6047 f.):
- Supervisory authority of the canton where the conduct occurred has jurisdiction over disciplinary proceedings where the conduct complained of is connected with court proceedings in that canton.
- Duty to inform: the supervisory authority of the canton where the conduct occurred must inform the supervisory authority of the canton of registration of the opening of proceedings.
- Right to submit observations: the canton of registration has the right to submit observations before a disciplinary measure is imposed — both in favour of and against the lawyer concerned (BBl 1999 6048).
- Duty to communicate: the outcome of the proceedings must be communicated to the supervisory authority of the canton of registration.
- Register entry: disciplinary measures that have become final and conclusive are entered in the register of the canton of registration (→ Art. 20 BGFA).
N. 13 Cantonal jurisdictions are in principle concurrent: both the canton of registration and the canton where the conduct occurred may act in the event of a breach of professional rules. The supervisory authority of the canton «in which the lawyer appears before the judicial authorities» exercises supervision primarily (judgment of the Administrative Court of Uri 04/05 49 of 4.10.2005; Poledna, BSK BGFA, Art. 14 N. 7). Where no court proceedings have yet been brought in the canton where the conduct occurred, jurisdiction remains with the canton of registration.
#4. Legal Consequences
N. 14 Art. 14 BGFA does not establish direct legal consequences for lawyers; it takes effect through its coupling with the other provisions of the third section. The designated supervisory authority is obliged, in the event of a breach of the professional rules under Art. 12 and 13 BGFA, to examine the disciplinary measures under Art. 17 BGFA and to impose them if the conditions are met (BGE 129 II 297 E. 3.1; BGE 132 II 250 E. 4.4).
N. 15 The supervisory authority maintains the cantonal register of lawyers under Art. 5 para. 3 BGFA. It therefore has at its disposal both administrative instruments (refusal of registration under Art. 6 para. 2 BGFA; deletion under Art. 9 BGFA) and disciplinary instruments (measures under Art. 17 BGFA). This dual function is typical of the BGFA model (judgment 2C_897/2015 of 25.5.2016 E. 5.2 f.; Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 575 ff.).
N. 16 Additional, non-disciplinary supervisory instruments may be provided by the cantons within the scope of their legislative competence — such as orders to restore a lawful state of affairs, provided these cannot be characterised as covert professional rules or disciplinary measures (judgment 2C_665/2010 of 24.5.2011 E. 6.1). The Federal Supreme Court has confirmed that the Federal Act on the Legal Profession does not preclude this, since such orders serve to restore a lawful state of affairs and not to sanction past conduct.
N. 17 The complainant has no right to the initiation of disciplinary proceedings or to the imposition of a disciplinary measure. Disciplinary supervision serves public interests, not the private protective interests of the complainant. The complainant is entitled neither to appeal on the merits nor to an administrative law appeal (BGE 129 II 297 E. 2.1, 3.1; BGE 132 II 250 E. 4.4). The complainant is entitled only to challenge a costs decision that is adverse to them (BGE 129 II 297 E. 2.2).
#5. Disputed Questions
5.1 Scope of the Cantonal Supervisory Authority: Advisory Lawyers
N. 18 It was disputed whether the disciplinary supervision under Art. 14 BGFA also covers lawyers who exclusively provide legal advice and are not entered in a register of lawyers. Poledna (BSK BGFA, Art. 14 N. 3) and Bohnet/Martenet (Droit de la profession d'avocat, 2009, para. 578) agree that the BGFA does not cover this group. The canton of Lucerne has, by cantonal law, extended the professional rules under Art. 12 and 13 BGFA and the disciplinary law (Art. 14–20 BGFA) by analogy to lawyers not admitted to represent parties (§ 8 para. 2 AnwG/LU). Nater (Commentary on the Lawyers Act, Art. 3 N. 8b) considers this rule to be compatible with federal law, since it constitutes a permissible extension of cantonal legislative competence; the Federal Supreme Court left the question open (judgment 2C_897/2015 of 25.5.2016 E. 5.2.2).
5.2 Concurrent Jurisdictions of the Canton of Registration and the Canton where the Conduct Occurred
N. 19 It is disputed whether the supervisory authorities of the canton of registration and the canton where the conduct occurred have equal jurisdiction in an intercantonal mandate, or whether a hierarchical order of priority exists. The Administrative Court of Uri held in favour of primary jurisdiction of the canton where the conduct occurred (judgment 04/05 49 of 4.10.2005: «Supervision is exercised primarily by the supervisory authority of the canton in which the lawyer appears before the judicial authorities»). Poledna (BSK BGFA, Art. 14 N. 7) and Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 793) follow this view in principle. Bauer/Bauer (CR LLCA, Art. 14 N. 11), by contrast, emphasise the coordination function: the authorities have concurrent jurisdictions, coordinated through duties to inform and communicate, without any strict hierarchy existing. A supreme court decision by the Federal Supreme Court on this question is still pending.
5.3 Cantonal Additional Supervisory Instruments in Relation to Exhaustive Federal Law
N. 20 It was disputed whether the exhaustive regulation of disciplinary law by the BGFA prevents the cantons from conferring wider powers of intervention upon the supervisory authority. Prevailing practice (based on BGE 132 II 250 E. 4.3.1 and judgment 2C_665/2010 E. 6.1) draws a distinction: disciplinary measures within the meaning of Art. 17 BGFA are exhaustively regulated by federal law; cantonal law may, however, confer administrative supervisory instruments on the supervisory authority for the purpose of restoring a lawful state of affairs. Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 60 ff., 661 ff.) endorses this distinction. Schiller (Schweizerisches Anwaltsrecht, 2009, para. 356 ff.) takes the opposing view that even administrative orders governing conduct in an ongoing mandate may have a disciplinary effect, which calls into question their permissibility under cantonal law.
5.4 Requirements for the Independence of the Supervisory Authority
N. 21 The institutional structure of the cantonal supervisory authorities — in particular the personal overlap with courts — has been challenged in practice. The Federal Supreme Court has rejected objections based on lack of independence where the only connection is collegiality between members of the supervisory authority and the appellate body, provided there are no concrete, objectively identifiable indications of bias (judgment 2C_665/2010 E. 2.1). Art. 29a FC and Art. 86 para. 2 BGG merely require a court to decide as the final cantonal instance — not a complete structural separation between the supervisory authority and the appellate court.
#6. Practical Notes
N. 22 Assessment of jurisdiction: Anyone lodging a complaint should first clarify in which canton the conduct complained of was carried out (canton where the conduct occurred) and in which canton the lawyer concerned is registered (canton of registration). The complaint must in principle be filed with the supervisory authority of the canton where the conduct occurred if the breach of duty is connected with court proceedings in that canton; in the case of exclusively advisory conduct, the supervisory authority of the canton of registration has jurisdiction. For requests for release from professional secrecy, the supervisory authority of the canton in which the lawyer has their business address has jurisdiction (judgment 2C_661/2011 E. 3.2; judgment 2C_508/2007 E. 2.2).
N. 23 Lack of standing of the complainant: Complainants must be aware that, according to the consistent case law of the Federal Supreme Court, they have no legitimate interest in the disciplining of the lawyer against whom the complaint is lodged and therefore have no standing to appeal on the merits (BGE 129 II 297 E. 2.1, 3.1; BGE 132 II 250 E. 4.4). A client who has suffered harm as a result of alleged professional misconduct is referred to civil law claims for damages.
N. 24 EU/EFTA lawyers: In disciplinary proceedings against EU/EFTA lawyers who appear permanently in Switzerland (→ Art. 27 ff. BGFA), the duty to inform the supervisory authority of the home state under Art. 29 BGFA must be observed without fail. Breach of this duty leads to the annulment of the disciplinary decision — even where the omission was unintentional (BGE 151 II 271 E. 4.6 f.). The breach gives rise to voidability, not nullity, of the decision.
N. 25 Cantonal legal remedies: Against disciplinary decisions of the supervisory authority, a judicial avenue of appeal must be ensured at cantonal level (Art. 29a FC; Art. 86 para. 2 BGG). The cantonal appellate bodies vary considerably (Zurich: Administrative Court; Lucerne: Cantonal Court; Appenzell Ausserrhoden: Cantonal Court). Against final cantonal judgments, an appeal in public law matters to the Federal Supreme Court is available (BGE 132 II 250 E. 2).
N. 26 Relationship to cantonal lawyers acts: The cantons may supplement the BGFA by cantonal lawyers legislation to the extent that federal law does not regulate the matter exhaustively. In particular, cantonal law may confer on the supervisory authority wider powers such as orders to restore a lawful state of affairs (judgment 2C_665/2010 E. 6.1). Cantonal lawyers acts may further extend disciplinary supervision by analogy to non-registered, advisory lawyers.
#Selected Sources
Legal Literature
- Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 786–800
- Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 575–580
- Poledna, BSK BGFA, 2nd ed. 2019, Art. 14
Legislative Materials
- BBl 1999 6047 f. (Message on the Federal Act on Freedom of Movement for Lawyers)
Case Law
- BGE 129 II 297 (standing of the complainant; obligation of the supervisory authority under Art. 14 BGFA)
- BGE 132 II 250 (no standing of the complainant; exhaustive nature of disciplinary law)
- BGE 151 II 271 (duty of cooperation under Art. 29 BGFA; analogous coordination principles)
- Judgment 2C_897/2015 of 25.5.2016 (delimitation of competence between Confederation and cantons; non-registered lawyers)
- Judgment 2C_665/2010 of 24.5.2011 (cantonal additional supervisory instruments; independence of appellate body)
- Judgment 2C_661/2011 of 17.3.2012 (jurisdiction of supervisory authority in matters of release from professional secrecy)
- Judgment 2C_508/2007 of 27.5.2008 (jurisdiction of supervisory authority at the place of business address)
- Administrative Court of Uri, judgment 04/05 49 of 4.10.2005 (primary jurisdiction of the canton where the conduct occurred)
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