Art. 17 BGFA — Disciplinary Measures

#Doctrine

#1. Legislative History

N. 1 Art. 17 BGFA originates from the Federal Council's dispatch of 28 April 1999 (BBl 1999 6013, 6049). The legislature's central concern was the harmonisation of disciplinary measures and limitation periods at the federal level. Prior to the entry into force of the BGFA on 1 June 2002, the cantons regulated these matters independently, which led to considerable differences in sanctioning practice. The Federal Council considered these divergences no longer justified once the substantive professional rules (Art. 12 BGFA) had been harmonised at the federal level (BBl 1999 6013, 6049). The dispatch also emphasised that a disciplinary measure presupposes an entry in the register: an attorney struck from the register thereby escapes disciplinary supervision.

N. 2 The parliamentary procedure was lengthy and marked by several disagreements. Following the National Council's first decision (1 September 1999), the Council of States diverged (20 December 1999); further disagreements in the National Council followed (7 March 2000) and a referral by the Council of States back to committee (16 March 2000). Additional conciliation rounds took place on 5 June 2000 (Council of States) and 14 June 2000 (National Council), before the Council of States agreed on 20 June 2000. The final vote in both chambers was held on 23 June 2000. The extensive conciliation procedure concerned primarily other parts of the Act (register law, EU/EFTA provisions); the catalogue of sanctions in the current Art. 17 BGFA corresponded in substance to the Federal Council's draft. The Federal Supreme Court has consistently given effect to the legislature's intention to harmonise: the BGFA governs disciplinary law exhaustively (BGE 132 II 250 E. 4.3.1; BGE 130 II 270 E. 1.1).

#2. Systematic Classification

N. 3 Art. 17 BGFA is located in the second division of the BGFA («Professional rules and supervision», Art. 12–20) and forms the centrepiece of the federal disciplinary system. The provision stands in a two-tier relationship with the professional rules: Art. 12 BGFA defines the elements of a breach of duty; Art. 17 BGFA provides the legal consequences. → Art. 12 BGFA (elements of a breach), → Art. 14 BGFA (competent supervisory authority), → Art. 16 BGFA (disciplinary proceedings), ↔ Art. 20 BGFA (deletion periods in the register).

N. 4 The BGFA exhaustively regulates the disciplinary measures applicable to attorneys (BGE 150 II 308 E. 7.4 with further references). Cantonal law may neither provide for more lenient nor more severe measures than those listed in Art. 17 BGFA; nor may it introduce additional sanctions. Thus, in BGE 150 II 308 E. 7.9 the Federal Supreme Court qualified the publication in the cantonal official gazette of a temporary prohibition on practising — ordered under cantonal law — as an autonomous repressive sanction and annulled it as contrary to federal law, on the ground that it is not provided for in the exhaustive catalogue of Art. 17 BGFA (→ Art. 49 para. 1 BV).

N. 5 Disciplinary measures under Art. 17 BGFA must be strictly distinguished from administrative measures (in particular deletion from the register under Art. 9 BGFA). The two sets of proceedings are independent of each other; deletion from the register neither precludes the initiation nor the continuation of disciplinary proceedings (BGE 137 II 425 E. 7.2). Conversely, a temporary prohibition on practising under Art. 17 para. 1 lit. d BGFA does not result in deletion from the register, provided the attorney continues to meet the personal requirements under Art. 7 and 8 BGFA. This dual nature — a disciplinary measure as a response to a breach of duty, an administrative measure as a response to the lapse of the conditions for registration — must be carefully distinguished in practice.

#3. Elements of the Offence / Normative Content

N. 6 Prerequisite: violation of this Act. Art. 17 para. 1 BGFA requires a «violation of this Act». The primary basis is a violation of the professional rules under Art. 12 BGFA. The Federal Supreme Court examines the existence of a breach of professional duties with full cognition (judgments 2P.318/2006 E. 12.1; 2C_980/2016 E. 3.2; 2C_988/2017 E. 4.2). A disciplinary sanction requires a «significant breach of professional duties»; trivial breaches do not suffice (judgment 2C_988/2017 E. 4.1 with further references).

N. 7 Catalogue of sanctions (Art. 17 para. 1 lit. a–e BGFA). The Act provides for five measures in ascending order of severity:

• lit. a: Warning (Verwarnung) — the lightest sanction; appropriate for a first-time, minor breach of duty;
• lit. b: Reprimand (Verweis) — a formal censure expressing stronger disapproval than the warning;
• lit. c: Fine (Busse) of up to CHF 20,000 — may be imposed cumulatively with a prohibition on practising (Art. 17 para. 2 BGFA);
• lit. d: Temporary prohibition on practising (befristetes Berufsausübungsverbot) for a maximum of two years — the most severe time-limited measure;
• lit. e: Permanent prohibition on practising (dauerndes Berufsausübungsverbot) — measure of last resort (ultima ratio).

A temporary prohibition on practising is in principle only to be imposed in cases of recidivism, once it has become apparent that the person concerned cannot be induced to comply with the professional rules by more lenient measures (judgment 2A.499/2006 E. 5.1; judgment 2C_980/2016 E. 3.2). Exceptionally, a grave first-time breach of duty may already justify a temporary prohibition on practising (judgment 2C_980/2016 E. 3.2 with reference to judgment 2A.177/2005 E. 4.1).

N. 8 Principle of expediency. The supervisory authority may (not: must) impose a disciplinary measure in the event of a violation of the BGFA (wording: «may»). The Federal Supreme Court and legal scholarship thereby recognise a principle of expediency: the authority may exceptionally refrain from imposing a sanction even where a breach of professional duty has been established — this remains confined to rare exceptions, however, since even the warning constitutes a very light sanction (judgment 2C_988/2017 E. 6.1; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 742). The authority's decision must in all cases comply with the principles of equal treatment, proportionality, and the prohibition of arbitrariness.

N. 9 Interim prohibition on practising (Art. 17 para. 3 BGFA). Where necessary, the supervisory authority may provisionally prohibit the practice of the profession. This measure is a provisional measure within the meaning of administrative law, limited to the duration of the disciplinary proceedings, and presupposes particular urgency and gravity of the allegations (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 765 ff.; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 2239 p. 913). It does not require a final and binding determination of a breach of duty but is subject to the principle of proportionality. Cantonal procedural law may additionally provide for the conditions under which a superprovisorisch order — i.e. without prior hearing — may be made.

#4. Legal Consequences

N. 10 Proportionality as the core maxim. In selecting the measure from within the catalogue of sanctions, cantonal supervisory authorities enjoy a wide margin of discretion. The Federal Supreme Court reviews the proportionality of the sanction chosen with full cognition (Art. 106 BGG in conjunction with Art. 5 para. 2 BV), but intervenes only where the sanction exceeds the bounds of proper discretion and appears «clearly disproportionate» (judgment 2P.318/2006 E. 12.1; judgment 2C_980/2016 E. 3.2). Relevant factors include in particular: the gravity of the breach, culpability, prior convictions and earlier disciplinary sanctions, insight and willingness to cooperate.

N. 11 Taking account of deleted disciplinary measures. Supervisory authorities may take into account prior misconduct — including sanctions already deleted from the cantonal attorneys' register (→ Art. 20 BGFA) — when determining the sanction. However, with the passage of time, past disciplinary measures carry progressively less weight (BGE 150 II 308 E. 5.10, clarification of case law). A strict prohibition on use analogous to former Art. 369 para. 7 SCC in criminal law does not apply in disciplinary law, since the idea of rehabilitation — unlike in criminal law — is subordinate to the protection of the public (BGE 150 II 308 E. 5.8).

N. 12 Cumulation and concurrence of sanctions. A fine may be ordered in addition to a prohibition on practising (Art. 17 para. 2 BGFA). The simultaneous combination of several measures is thus partially provided for by statute, but must be handled in light of proportionality. Where an attorney is active across cantonal boundaries, it is possible for several cantonal supervisory authorities to open and conduct disciplinary proceedings concurrently; → Art. 16 para. 2 BGFA obliges the authority conducting the proceedings to inform the authority of the canton of registration and to give it an opportunity to comment.

N. 13 ECHR guarantees in disciplinary proceedings. Disciplinary proceedings against attorneys under Art. 17 BGFA constitute a «dispute over civil rights» within the meaning of Art. 6 para. 1 ECHR, because the catalogue of sanctions provides for a (temporary or permanent) prohibition on practising (BGE 147 I 219 E. 2.2.2). The procedural guarantees of Art. 6 para. 1 ECHR — in particular the right to a public hearing — must be ensured upon judicial review even where only a warning is at issue in the specific case (BGE 147 I 219 E. 2.3.3). Since a first-instance decision is usually taken by an administrative authority (not a court), the cantonal appellate court must fulfil the ECHR requirements.

#5. Contested Issues

N. 14 Exhaustive character of the catalogue of sanctions. It is firmly established case law that the catalogue in Art. 17 BGFA binds cantonal legislators exhaustively. Poledna (in: Fellmann/Zindel [eds.], BSK BGFA, 2nd ed. 2011, N. 1 on Art. 17 BGFA) and Bauer/Bauer (in: Valticos/Reiser/Chappuis [eds.], CR LLCA, 2nd ed. 2022, N. 1 on Art. 17 BGFA) support this by noting that neither more lenient nor more severe nor other measures than those listed are permissible. BGE 150 II 308 E. 7.4 has confirmed this once more and referred to the extensive body of prior case law. In practice, uncertainties arose in particular regarding the cantonal publication of disciplinary measures, which the Federal Supreme Court has now qualified as contrary to federal law (BGE 150 II 308 E. 7.9).

N. 15 Relationship between disciplinary measures (Art. 17) and administrative measures (Art. 9). Register supervision and disciplinary law are conceptually distinct. Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 743) and Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 2128 p. 868 f.) emphasise that the two proceedings run independently of each other and lead to different legal consequences. The Federal Supreme Court has expressly affirmed this independence (BGE 137 II 425 E. 7.2): deletion from the register under Art. 9 BGFA occurs when the conditions for registration under Art. 8 BGFA are no longer met; a prohibition on practising under Art. 17 para. 1 lit. d BGFA, by contrast, is a response to conduct in breach of duty and leaves the register entry unaffected, provided Art. 7 and 8 BGFA are still satisfied. A contested point remains the practical delineation in individual cases where the same misconduct both affects the conditions for registration (e.g. a criminal conviction under Art. 8 para. 1 lit. b BGFA) and gives rise to disciplinary liability.

N. 16 Admissibility of taking account of deleted sanctions — state of opinion before BGE 150 II 308. Whereas Brunner/Henn/Kriesi (Anwaltsrecht, 2015, p. 251) had, before BGE 150 II 308, taken the view that deleted measures must not be taken into account, the Federal Supreme Court consistently favoured their admissibility (most recently judgment 2C_354/2021 E. 5.1). BGE 150 II 308 E. 5.10 settled this dispute with a clarification of the case law: deleted measures may be taken into account but carry progressively less weight with the passage of time. The analogous prohibition on use under criminal law (former Art. 369 para. 7 SCC) has in any event ceased to apply following the entry into force of the Criminal Records Act (StReG, 23 January 2023) and can no longer be transferred to disciplinary law (BGE 150 II 308 E. 5.6.4).

N. 17 Principle of expediency — scope of administrative discretion. Bauer/Bauer (CR LLCA, 2nd ed. 2022, N. 17 ad Art. 17 BGFA) and Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 2128 p. 868 f., N. 2178 p. 888) recognise the principle of expediency as an expression of discretion, but emphasise its narrow interpretation: since even the warning already constitutes a minimal sanction, a complete waiver of disciplinary action must be confined to rare exceptional cases. Tanquerel (Caractéristiques et limites du droit disciplinaire, in: Tanquerel/Bellanger [eds.], Le droit disciplinaire, 2018, p. 23) points to the duty of equal treatment as a limit on the principle of expediency.

#6. Practical Notes

N. 18 Graduated sequence of measures. Supervisory authorities must set out in their reasoning for the sanction why the measure chosen is proportionate to the gravity of the breach of duty, the degree of culpability, and the professional background of the person concerned. The Federal Supreme Court reviews proportionality with full cognition, but exercises restraint in the assessment of sanctions (2P.318/2006 E. 12.1; 2C_980/2016 E. 3.2). A first-time prohibition on practising presupposes a grave breach of duty.

N. 19 Disciplinary proceedings and criminal proceedings. Disciplinary proceedings and criminal proceedings are independent of each other. A criminal conviction may trigger both an administrative measure (Art. 9 in conjunction with Art. 8 para. 1 lit. b BGFA) and — where a breach of professional duty is also established — a disciplinary measure (Art. 17 BGFA) (BGE 137 II 425 E. 7.2). Attorneys concerned should be aware that an acquittal or dismissal in criminal or civil proceedings does not have binding effect for the disciplinary proceedings, since the duty of professional care under professional law (Art. 12 lit. a BGFA) sets autonomous requirements (judgment 2A.499/2006 E. 3.2).

N. 20 Procedural rights of the attorney concerned. By reason of their qualification as a «civil dispute» under Art. 6 para. 1 ECHR (BGE 147 I 219 E. 2.2.2), public hearings before a judicial instance must in principle be held upon request in appellate proceedings; a refusal to hold a public hearing violates Art. 6 para. 1 ECHR. The request for a public hearing must be made before the cantonal appellate authority — not only before the Federal Supreme Court; if the appellant, who is represented by counsel, fails to do so, a tacit waiver is assumed (judgment 2C_980/2016 E. 2.1.2).

N. 21 Conclusion of proceedings and prohibition on publication. Disciplinary measures must be entered in the cantonal attorneys' register pursuant to Art. 5 para. 2 lit. e BGFA and communicated to the supervisory authorities of the other cantons pursuant to Art. 18 para. 2 BGFA. Any further publication in the cantonal official gazette constitutes an autonomous repressive sanction outside the catalogue of Art. 17 BGFA and is therefore contrary to federal law (BGE 150 II 308 E. 7.9). Of practical importance is the fact that a sanctioned attorney, notwithstanding a temporary prohibition on practising, may continue to act in an advisory capacity; the prohibition applies only to activities within the reserved area of practice (cf. BGE 150 II 308 E. 7.8 with reference to BBl 1999 6013, 6060; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 740).

N. 22 Inter-cantonal coordination. For attorneys active in several cantons, there is an increased need for coordination between the supervisory authorities. Art. 16 para. 2 BGFA obliges the supervisory authority conducting the proceedings to give the supervisory authority of the canton of registration an opportunity to comment before imposing a disciplinary measure. This inter-cantonal communication enables the authorities to take account of an attorney's entire disciplinary history — including deleted measures (BGE 150 II 308 E. 5.9).

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