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Art. 19 BGFA – Limitation
#Doctrine
#1. Legislative History
N. 1 The BGFA of 23 June 2000 created, for the first time, a uniform federal limitation regime for attorney disciplinary law. Prior to the BGFA entering into force on 1 June 2002, cantonal attorney acts contained diverging rules. Many cantons — including Lucerne — had no express limitation provision at all; practice made do with the principle of expediency and refrained from imposing sanctions only in cases of conduct that lay far in the past (after approximately ten years) (OG Luzern, 11 03 86, judgment of 10.5.2005, recital 11.3; judgment 2A.168/2005 of 6.9.2005, recital 3.2). The Federal Council's dispatch on the BGFA (BBl 1999 6013) refers, in its commentary on disciplinary law, to the criminal-law principle of the «lex mitior» and states that cantons must apply, in transitional law, the law that is more favourable to the person concerned. The specific design of the limitation periods in Art. 19 BGFA was therefore deliberately modelled on criminal law (Poledna, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, Art. 19 N. 4).
N. 2 The legislative process involved several rounds of conciliation between the National Council and the Council of States. The National Council adopted a text diverging from the draft on 1 September 1999; the Council of States in turn deviated on 20 December 1999. Further divergences followed on 7 March 2000 (National Council), on 16 March 2000 (referral back to committee by the Council of States), on 5 June 2000 (Council of States) and on 14 June 2000 (National Council), before the Council of States gave its approval on 20 June 2000. The final vote took place in both chambers on 23 June 2000. The parliamentary records do not indicate that Art. 19 was the subject of specific controversial debate; the limitation regime was among the less contentious provisions of the Act.
N. 3 The Federal Supreme Court clarified in judgment 2A.168/2005 of 6.9.2005, recital 3.2 that the earlier cantonal law — insofar as it contained no limitation provision — was not necessarily more lenient than the BGFA in an intertemporal comparison: given the ten-year absolute limitation period under Art. 19 para. 3 BGFA and the absence of fixed periods in the earlier cantonal law, no clear advantage of leniency existed in either direction; the specific assessment depended on the circumstances of the individual case.
#2. Systematic Classification
N. 4 Art. 19 BGFA falls within the third section of the second chapter («Professional rules and disciplinary supervision», Arts. 12–20) and, together with Art. 17 (disciplinary sanctions), Art. 18 (register-keeping) and Art. 20 (deletion), forms the procedural framework of the disciplinary regime. The limitation rule protects the interest of registered attorneys in not having to reckon indefinitely with disciplinary consequences for past conduct. It stands in a rule-of-law tension with the public interest in effective professional supervision (Poledna, op. cit., Art. 19 N. 2).
N. 5 The limitation under Art. 19 BGFA relates exclusively to the disciplinary prosecution of violations of professional rules (→ Art. 12 BGFA). It does not affect the criminal or civil liability of the attorney, to which separate limitation periods apply. Federal law exhaustively governs the limitation of disciplinary proceedings under Arts. 17 ff. BGFA (→ Art. 17 BGFA); cantonal law may not provide for different periods (judgment 2A.168/2005, recital 3.1; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 2591 ff.). The extension rule in Art. 19 para. 4 BGFA refers to criminal law and establishes a close link with → Art. 17 para. 1 let. d and e BGFA.
#3. Elements of the Offence / Normative Content
3.1 Relative Limitation Period (para. 1)
N. 6 Disciplinary prosecution is subject to a relative limitation period of one year «after the supervisory authority became aware of the incident complained of» (Art. 19 para. 1 BGFA). The decisive factor is actual awareness by the competent supervisory authority. Awareness by the injured client, the opposing party, another authority, or a supervisory authority lacking local jurisdiction does not set the period running (Poledna, op. cit., Art. 19 N. 5; OG Luzern, 11 03 86, recital 11.4.1).
N. 7 It is disputed whether it suffices that a single member of the supervisory authority has become aware of the matter, or whether awareness by the collegial body as such — or at least by its leadership — is required. The Lucerne Court of Appeal affirmed in 11 03 86 (recital 11.4.2), by reference to the purpose of the provision — prompt handling after discovery — that awareness by a single member suffices, as soon as that member belongs to the supervisory authority. The opposing view, requiring awareness by the authority as a whole or at least by its leadership, can be grounded in the protective purpose of the limitation rule in favour of the attorney concerned (→ N. 4). In support of this opposing view, it may be argued that incidental knowledge acquired by a single authority member in another capacity (e.g. as a judge in separate proceedings) should not be able to trigger the period; otherwise the commencement of the period would depend on chance.
3.2 Interruption (para. 2)
N. 8 The relative period is interrupted by every investigative act of the supervisory authority (Art. 19 para. 2 BGFA). Art. 19 para. 2 BGFA is modelled on the former provision of criminal procedure law (former Art. 72 no. 2 first sentence of the Criminal Code in the version pursuant to no. I of the Federal Act of 5 October 1950) (Cantonal Court BL, 810 24 188, judgment of 26.3.2025, recital 4.3; Poledna, op. cit., Art. 19 N. 4). Interruption has the effect that the period begins to run anew from the date of the interrupting act. Acts qualifying as investigative acts include in particular: the formal opening of disciplinary proceedings, requests to submit comments, enquiries as to whether a comment is desired, hearings, and other taking of evidence (Poledna, op. cit., Art. 19 N. 8; judgment 2A.168/2005, recital 3.1). The act must emanate from the competent supervisory authority, serve to advance the disciplinary proceedings, and take effect externally (Cantonal Court BL, 810 24 188, recital 4.3).
N. 9 If a first-instance disciplinary decision has been rendered before the relative limitation period expires, the limitation period ceases to run; the decisive moment is the date of the decision (the day of the resolution), not the date of notification or of the decision becoming final. The Federal Supreme Court left open in judgment 2A.168/2005, recital 3.1 for criminal law whether the rendering of a decision also precludes the relative limitation period from running; the Cantonal Court of Basel-Landschaft held in 810 24 188, recitals 4.3 f., by analogous application of Art. 97 para. 3 of the Criminal Code and by reference to BGE 130 IV 101, recitals 2.1 ff. and BGE 146 IV 59, recital 3.3, that these principles apply to attorney disciplinary law and affirmed that the rendering of a disciplinary decision terminates the running of the period. A prerequisite, however, is that the decision is actually notified at some point and that no period of time so long passes between rendering and notification — measured against the duration of the relevant limitation period — as to be disregarded.
3.3 Absolute Limitation Period (para. 3)
N. 10 Disciplinary prosecution is absolutely time-barred in all circumstances ten years after the incident complained of (Art. 19 para. 3 BGFA). This period cannot be interrupted; it runs regardless of whether and when the supervisory authority became aware of the matter (Poledna, op. cit., Art. 19 N. 9; OG Luzern, 11 03 86, recital 11.2). The Federal Supreme Court noted obiter in judgment 2A.168/2005, recital 2.7.2 that the absolute prosecution limitation period under the BGFA «is, at any rate, ten years», thereby recalling the statutory framework without being required to establish that limitation had actually occurred in the case at hand.
3.4 Extension Where Prohibition of Practice Threatens (para. 4)
N. 11 Where a disciplinary sanction under Art. 17 para. 1 let. d (temporary prohibition of practice) or let. e (permanent prohibition of practice) BGFA threatens, limitation periods do not begin to run or are interrupted for as long as criminal proceedings against the attorney concerned are pending (Art. 19 para. 4 BGFA). This extension clause takes account of the fact that, in cases involving serious violations of professional duties, the supervisory authority frequently has to await the outcome of the criminal proceedings in order to have full knowledge of the facts. Criminal proceedings are «pending» from the time they are initiated until they are concluded by a final and binding decision; formal commencement in the sense of the Code of Criminal Procedure is not required (Poledna, op. cit., Art. 19 N. 11; Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 1236 f.). The extension applies explicitly only to the two most serious disciplinary sanctions (let. d and e), not to a reprimand, censure, or fine.
#4. Legal Consequences
N. 12 Once limitation — whether relative or absolute — has occurred, the supervisory authority's right to sanction the established violations of professional rules with a disciplinary measure under Art. 17 BGFA is extinguished. If limitation occurs during pending disciplinary proceedings, it results in those proceedings lapsing; the authority seised can no longer impose sanctions for the established violations (Poledna, op. cit., Art. 19 N. 2; Cantonal Court BL, 810 24 188, recital 4.3, with reference to BGE 105 Ib 69, recital 2a). A mere finding of a violation of professional rules without sanction is inadmissible once limitation has occurred.
N. 13 Limitation must be taken into account ex officio; the attorney concerned is not required to raise it expressly (Poledna, op. cit., Art. 19 N. 2; Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 1234). This ex officio duty follows from the public-law character of disciplinary proceedings, in which the disposition maxim does not apply.
#5. Disputed Questions
N. 14 The central disputed question concerns when the supervisory authority has «awareness» within the meaning of Art. 19 para. 1 BGFA. Poledna (op. cit., Art. 19 N. 5) holds that awareness by authorities lacking competence — even if their members later belong to the competent supervisory authority — does not set the period running. The Lucerne Court of Appeal, by contrast, adopted an extensive interpretation in 11 03 86, recital 11.4.2: awareness by a single member of the supervisory authority suffices, as soon as that member belongs to the authority in its capacity as supervisory authority. The decision relies on BGE 105 Ib 69 ff., which held in general that the knowledge of one member is sufficient as authority-level awareness. Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 1232 f.) shares this view in principle but emphasises that the knowledge must exist in the relevant capacity as supervisory authority. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 2595) stress that the period should begin to run as quickly as possible — which tends to favour the extensive view — but call for clear requirements to eliminate coincidences.
N. 15 A further disputed question was whether the principle of ne bis in idem precludes a court-police measure (e.g. under Art. 128 of the Code of Civil Procedure) and a subsequent supervisory disciplinary sanction for the same conduct. The Lucerne Court of Appeal rightly rejected this in 11 03 86, recital 7: the court-police sanction and the supervisory disciplinary sanction pursue different protected interests — the former protects the proper conduct of the specific proceedings, the latter the confidence of those seeking legal advice in the legal profession as a whole. The Federal Supreme Court confirmed the same distinction in judgment 2A.168/2005, recital 2.7.1, holding that the fact that the trial court had returned a written submission for correction did not extinguish the public interest in professional disciplinary action. → Art. 17 BGFA.
N. 16 There is no consensus in legal scholarship on the precise point in time at which, under para. 4, criminal proceedings are considered «pending». Poledna (op. cit., Art. 19 N. 11) looks to the initiation of the criminal proceedings, without requiring formal commencement in the criminal procedural sense. Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 1237) shares this view and emphasises that mere preliminary investigations — or prosecutorial investigations prior to formal opening — can trigger the extension, provided they concretely relate to facts that could also result in a disciplinary sanction under Art. 17 para. 1 let. d or e BGFA. A contrary view demands, on grounds of legal certainty, formal opening of proceedings within the meaning of Arts. 309 ff. of the Code of Criminal Procedure.
#6. Practical Notes
N. 17 Supervisory authorities must act promptly after becoming aware of a possible violation of professional rules. The relative period of one year is short; it begins to run from actual awareness, not merely from the receipt of a formal complaint (Poledna, op. cit., Art. 19 N. 5). In practice, clear documentation of the moment of awareness is recommended (receipt of the complaint, minutes of the meeting at which a matter became known).
N. 18 To interrupt limitation under Art. 19 para. 2 BGFA, it is sufficient to send even an enquiry to the attorney concerned asking whether they wish to submit additional comments (judgment 2A.168/2005, recital 3.1). Authorities are therefore well advised to carry out procedural steps, documented on file, at regular intervals. Acts by third parties (a complaint by a private individual, correspondence from courts) do not interrupt the period.
N. 19 In situations where a serious disciplinary sanction (→ Art. 17 para. 1 let. d or e BGFA) threatens and criminal proceedings are simultaneously pending, the supervisory authority should actively consider whether it wishes or is required to await the outcome of the criminal proceedings. Art. 19 para. 4 BGFA suspends the limitation periods in that case. However, the principle of proportionality requires that disciplinary proceedings not be stayed for an excessive period; a merely abstract possibility of a serious prohibition does not suffice to justify the extension (Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 1237 f.).
N. 20 For attorneys against whom disciplinary proceedings are initiated, the relative one-year period is an important protection. In appeal proceedings, it is advisable to raise the limitation question at an early stage and with substantiated arguments, since the supervisory authority must observe the period ex officio (→ N. 13). It should be borne in mind that every new investigative act interrupts the period and causes it to begin running afresh (Art. 19 para. 2 BGFA). In intertemporal situations (facts arising before 1 June 2002), the principle of the «lex mitior» applies: if the BGFA is more favourable to the person concerned — for instance because the earlier cantonal law contained no limitation period and practice refrained from imposing sanctions only after ten years — the BGFA is to be applied (OG Luzern, 11 03 86, recitals 11.4 f.; judgment 2A.168/2005, recital 2.1; → Art. 17 BGFA).
#Literature
- Poledna, in: Fellmann/Zindel (eds.), Kommentar zum Anwaltsgesetz, 2nd ed. 2011, Art. 19 N. 2–11
- Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 1232–1238
- Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 2591–2597
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