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Art. 16 BGFA — Disciplinary Proceedings in Another Canton
#Doctrine
#1. Legislative History
N. 1 Art. 16 BGFA originates from the Federal Council's draft submitted to Parliament together with the Dispatch of 28 April 1999 (BBl 1999 6013, 6048 f.). From the outset, the provision pursued two interrelated objectives: first, to ensure the nationwide effect of a prohibition on practising by notifying all cantonal supervisory authorities of any measures imposed; second, to provide an institutional basis for intercantonal cooperation between supervisory authorities in order to promote uniform practice. The Federal Council emphasised that the harmonisation of professional rules at the federal level was precisely what made it possible to extend a prohibition on practising across the whole of Switzerland; a prohibition limited in effect to a single canton would not be appropriate (BBl 1999 6013, 6048).
N. 2 In the Dispatch, the Federal Council stressed that a permanent prohibition on practising is only an option as a measure of last resort where other sanctions have failed to correct the conduct, and that an advocate subject to such a prohibition may continue to provide legal advice (BBl 1999 6013, 6048 f.). This limitation of the prohibition to representation before courts — as distinct from general legal advice — continues to shape the interpretation of Art. 16 BGFA to this day.
N. 3 The parliamentary deliberations were not without amendments: the National Council departed from the Federal Council's draft on 1 September 1999, the Council of States on 20 December 1999 and again on 5 June 2000. On 16 March 2000, the Council of States referred the bill back to the committee. During the conciliation rounds up to the final vote on 23 June 2000, no modifications were made that altered the basic structure of Art. 16; the coordination rule between supervisory authorities remained unchanged in its core. The parliamentary materials do not record any statements attributable by name to individual members of either chamber with respect to Art. 16.
#2. Systematic Classification
N. 4 Art. 16 BGFA is situated in the second section of the Act («Professional Rules and Supervision», Arts. 12–20) and governs intercantonal procedural coordination in disciplinary proceedings against advocates registered in a different canton. The provision presupposes the single-register-canton principle (→ Art. 6 para. 1 BGFA; BGE 131 II 639 E. 3): since an advocate may only be registered in one cantonal register, there is always a clear distinction between the canton in which the register is maintained (the «register canton») and any other cantons in which the advocate practises.
N. 5 Within the disciplinary system, Art. 16 BGFA constitutes the intercantonal counterpart to Art. 14 BGFA (cantonal supervisory jurisdiction) and Art. 15 BGFA (duty to report). Whereas Art. 15 BGFA governs the flow of information from judicial and administrative authorities to the supervisory authority of their canton, Art. 16 BGFA coordinates the flow of information between cantonal supervisory authorities in disciplinary proceedings. ↔ Art. 18 para. 2 BGFA supplements Art. 16 in the enforcement phase: once a prohibition on practising has been imposed, it must be communicated to all cantonal supervisory authorities (→ below N. 14).
N. 6 A structurally analogous coordination mechanism for EU/EFTA lawyers is found in Art. 29 BGFA: before a cantonal supervisory authority opens disciplinary proceedings against an EU/EFTA lawyer practising permanently in Switzerland, it informs the competent supervisory authority of the home State and gives it the opportunity to submit its views (BGE 151 II 271 E. 4). Art. 16 BGFA is the domestic model for this mechanism.
#3. Elements of the Provision / Normative Content
N. 7 Paragraph 1 requires that a supervisory authority open disciplinary proceedings against an advocate who is not registered in its own canton but in another canton. The opening of proceedings itself is sufficient to satisfy the requirements of the provision; the duty to inform the supervisory authority of the register canton therefore arises at the commencement of proceedings and not only once a well-founded suspicion has been established (Poledna, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 2 on Art. 16 BGFA; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 844). The Act prescribes no specific form for the information; it may be given in writing — in practice regularly accompanied by transmission of the file.
N. 8 Paragraph 2 provides for a two-stage procedure: (i) where the competent supervisory authority intends to impose a disciplinary measure, it first gives the supervisory authority of the register canton the opportunity to submit its views; (ii) it then communicates the outcome of the investigation to that authority. The purpose is twofold: the supervisory authority of the register canton should be kept informed of the progress of the proceedings and should be able to contribute a perspective as the authority «principally competent» in the matter (as expressed by the Federal Supreme Court in BGE 131 II 639 E. 3.4.2, with reference to the Dispatch). The submission by the supervisory authority of the register canton is, however, purely consultative in nature; it does not bind the supervisory authority conducting the proceedings (Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 740; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 844).
N. 9 Timing of procedural access (para. 1 vs. para. 2): Paragraph 1 concerns the opening of proceedings; paragraph 2 concerns the point immediately before the measure is issued. Between these two points in time lies the actual investigation. The Federal Supreme Court has clarified that, prior to the issuance of a measure, the submission of views pursuant to paragraph 2 is still outstanding — and the cantonal investigation therefore cannot yet be regarded as concluded (Judgment 2C_699/2007 of 30 April 2008 E. 2.2; see also Judgment 5A_175/2008 of 8 July 2008 E. 5.1).
N. 10 Scope of application for interim measures: The BGFA contains no express provision on ex parte or interim measures in disciplinary proceedings. Since Art. 16 BGFA expressly refers to the «opening» of disciplinary proceedings and the «imposition» of a disciplinary measure, it formally covers only the ordinary procedure. Interim measures — where cantonal law provides for them — may be ordered prior to or concurrently with the opening of proceedings; in such cases the duty to inform under Art. 16 para. 1 BGFA must equally be observed by analogy and in the spirit of the coordination purpose, since an interim prohibition on practising has the same intercantonal effect as a final measure (Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 740; Poledna, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 2 on Art. 16 BGFA).
#4. Legal Consequences
N. 11 No conferral of procedural jurisdiction: Art. 16 BGFA does not confer any jurisdiction on the supervisory authority of the register canton. Under Art. 14 BGFA, jurisdiction lies with the supervisory authority of the canton in which the advocate in question is appearing. The duty to inform and to consult under Art. 16 BGFA leaves this allocation of jurisdiction unaffected (Administrative Court of Zurich, Judgment VB.2010.00486 of 25 November 2010 E. 3.4). The supervisory authority of the register canton may therefore neither assume conduct of the proceedings nor oblige the authority conducting the proceedings to impose a particular measure. The distinction from Art. 18 BGFA is clear: Art. 16 coordinates ongoing proceedings, while Art. 18 enforces prohibitions on practising that have become legally binding throughout Switzerland.
N. 12 Nationwide effect of a prohibition on practising: Art. 17 para. 1 lit. d and e BGFA provide for time-limited and permanent prohibitions on practising as disciplinary measures. By virtue of the BGFA, such prohibitions apply throughout Switzerland without requiring any further act of enforcement. The nationwide effect is based not on Art. 16 but on Art. 18 para. 2 BGFA in conjunction with Art. 17 BGFA; Art. 16 merely ensures the upstream coordination (→ Art. 18 BGFA). The BGFA exhaustively sets out the catalogue of measures; cantonal supplements — such as publication in the Official Gazette — are contrary to federal law (BGE 150 II 308 E. 7.4 and 7.9).
N. 13 Taking account of deleted disciplinary measures in the register canton: The communication pursuant to Art. 16 para. 2 BGFA enables the supervisory authority of the register canton to take note of measures that have already been deleted from the register. The Federal Supreme Court has clarified that supervisory authorities may in principle take earlier misconduct — including deleted sanctions — into account when determining a sanction, although their weight diminishes with the passage of time (BGE 150 II 308 E. 5.9 and 5.10).
#5. Contested Issues
N. 14 Legal consequence of a violation of Art. 16 BGFA: Nullity or voidability? It is disputed whether a disciplinary measure imposed without compliance with Art. 16 para. 2 BGFA (submission of views by the register canton) is null and void or merely voidable. The Federal Supreme Court most recently decided this question in the context of the structurally parallel Art. 29 BGFA (EU/EFTA lawyers): a violation of the duty to inform and cooperate does not constitute a particularly serious and readily recognisable procedural defect giving rise to nullity; the violation results only in voidability (BGE 151 II 271 E. 4.7.1–4.7.2). Chappuis/Châtelain (in: Commentaire romand, Loi sur les avocats, 2nd ed. 2022, N. 11 on Art. 29) conclude expressly in favour of voidability and remittal with regard to Art. 29 BGFA. This assessment is transferable to Art. 16 BGFA: the supervisory authority of the register canton participates only in a consultative capacity; the absence of its submission does not constitute a qualified procedural defect justifying nullity. In the literature — as far as can be ascertained — no position has been taken that advocates nullity in respect of Art. 16 BGFA; Poledna (in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 2 on Art. 16 BGFA) and Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 740) treat the procedural defect in this context as a rectifiable irregularity.
N. 15 Relationship to Art. 18 BGFA: Temporal sequence and concurrence of provisions: An occasionally discussed question concerns the relationship between the coordination duty (Art. 16) and the enforcement duty (Art. 18 para. 2). Art. 16 para. 2 applies before a measure is imposed; Art. 18 para. 2 applies after its imposition. The two provisions do not overlap; they operate sequentially. There is therefore no genuine concurrence of provisions. The authority conducting the proceedings need not additionally proceed under Art. 18 before the measure is enforced; the communication pursuant to Art. 18 para. 2 follows the imposition of the measure and triggers nationwide enforcement.
N. 16 Concentration principle vs. concurrent jurisdiction: The BGFA does not provide for an express concentration of all disciplinary proceedings before the register canton. Several supervisory authorities may simultaneously conduct proceedings against the same person, provided that the conduct giving rise to the complaint took place in the respective canton (→ Art. 14 BGFA). Art. 16 BGFA is the instrument that ensures coherence within this multi-track structure: the supervisory authority of the register canton is consulted as the authority «principally competent» in the matter (BGE 131 II 639 E. 3.4.2). Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 844) describe this construction as appropriate, since the register canton has an overall view of the professional life of the advocate.
#6. Practical Guidance
N. 17 Procedural sequence: The supervisory authority conducting the proceedings must (i) inform the supervisory authority of the register canton upon opening of proceedings (para. 1) and (ii) obtain its submission and communicate the outcome to it before issuing a disciplinary measure (para. 2). The Federal Supreme Court held in Judgment 2C_699/2007 of 30 April 2008 E. 2.2 that the investigation cannot be regarded as concluded as long as the submission pursuant to paragraph 2 is still outstanding. A measure issued before that submission is voidable.
N. 18 Change of jurisdiction where there are multiple business addresses: Where an advocate has a principal office in Canton A (register canton) and a branch office in Canton B, and the conduct giving rise to the complaint occurs in Canton B, the supervisory authority of Canton B has jurisdiction over the disciplinary proceedings. It informs the supervisory authority of Canton A pursuant to Art. 16 para. 1 BGFA. If the supervisory authority of Canton B erroneously fails to open proceedings, an authority that lacks local jurisdiction may transfer the proceedings ex officio to the competent authority; neither data protection law nor professional secrecy stands in the way of this (Administrative Court of Zurich, Judgment VB.2010.00486 of 25 November 2010 E. 3.4 and 3.6).
N. 19 Advisory activities remain permissible: Even in the case of a permanent prohibition on practising, the advocate may continue to provide legal advice (BBl 1999 6013, 6048 f.; BGE 150 II 308 E. 7.8). Art. 16 BGFA in conjunction with Art. 18 para. 2 BGFA ensures that the supervisory authorities of all cantons are informed of the prohibition and can prevent appearances before judicial authorities; the advisory activity is not substantively affected by these information mechanisms.
N. 20 Parallel instrument for EU/EFTA lawyers: For EU/EFTA lawyers practising permanently in Switzerland under their home-country professional title, Art. 29 BGFA applies as lex specialis in relation to Art. 16. Failure to comply with Art. 29 BGFA — just as with Art. 16 BGFA — does not result in nullity but in voidability of the measure and remittal (BGE 151 II 271 E. 4.7.2). The structural similarity of the two provisions allows the principles developed in relation to Art. 29 to be applied to Art. 16.
#Cross-References
→ Art. 6 para. 1 BGFA (single-register-canton principle)
→ Art. 14 BGFA (cantonal supervisory jurisdiction)
↔ Art. 15 BGFA (duty of cantonal authorities to report)
→ Art. 17 BGFA (catalogue of disciplinary measures)
↔ Art. 18 BGFA (nationwide enforcement of the prohibition on practising)
→ Art. 20 BGFA (deletion from the register of advocates)
→ Art. 29 BGFA (analogous coordination with EU/EFTA home States)
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