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Art. 2 BGFA – Personal Scope of Application
#Doctrine
#1. Legislative History
N. 1 Art. 2 BGFA has its origins in decades of efforts to harmonise Swiss lawyers' law. As early as the beginning of the 20th century, a federal lawyers' patent was sought, but the project initially failed. The BGFA, as the first comprehensive federal framework for the legal profession, is based on Art. 95 para. 1 and 2 FC, pursuant to which the Confederation is to ensure a single economic area (cf. BGE 150 II 308 and judgment 2C_897/2015 of 25.5.2016, consid. 8).
N. 2 The Federal Council submitted its dispatch on the BGFA on 28 April 1999 (BBl 1999 6013). For Art. 2, the guiding principle was to define the scope of application of the Act by reference to the cantonal lawyers' monopoly, without however covering all patent holders (BBl 1999 6031 f.). It was expressly intended to exclude lawyers acting as judges, court clerks, administrative employees, or in banks, as well as persons engaged exclusively in legal advice without representing parties before courts. The alternative — extending the scope to all patent holders irrespective of activity — was expressly rejected (BBl 1999 6031).
N. 3 The citizenship requirement that had previously existed in certain cantons was abandoned in accordance with BGE 119 Ia 35; the Act also applies to foreign nationals, provided they hold a cantonal patent. EU/EFTA lawyers are expressly included by para. 2 (BBl 1999 6031 f.).
N. 4 The parliamentary procedure extended over several readings. The National Council adopted deviating amendments on 1 September 1999. The Council of States and the National Council resolved their differences over several rounds (Council of States 20.12.1999; National Council 7.3.2000; Council of States 16.3.2000 with referral back to committee; Council of States 5.6.2000; National Council 14.6.2000) and approved the Act in the final vote on 23 June 2000. The delineation of the scope of application by means of the monopoly concept remained unchanged throughout all readings.
#2. Systematic Classification
N. 5 Art. 2 BGFA opens the Act and falls within the first section «Freedom of movement and register» (Art. 1–11). It contains the personal scope-of-application provision for the Act as a whole: all substantive-law obligations (professional rules Art. 12, professional secrecy Art. 13) and the disciplinary regime (Art. 14–20) attach directly to the class of persons defined in Art. 2 para. 1. Whoever falls outside this class is likewise not subject to federal-law supervision (judgment 6B_629/2015 of 7.1.2016, consid. 4.4).
N. 6 Art. 2 para. 1 defines the standard case: domestically patented lawyers practising within the monopoly area. Art. 2 para. 2 extends the scope of application to EU/EFTA lawyers who practise on the basis of the Agreement on the Free Movement of Persons (AFMP) and the relevant EU Directives (→ Art. 21–34a BGFA). Art. 2 must be read in conjunction with Art. 3 BGFA, which provides a reservation in favour of cantonal law with regard to the lawyers' patent and representation before cantonal courts (↔ Art. 3 BGFA).
N. 7 Art. 2 para. 1 is, by its express function, a scope-of-application provision, not a competence provision. The Federal Supreme Court has clarified that no conclusions whatsoever may be drawn from this provision regarding the content of cantonal bar examinations or the extent of cantonal regulation (judgment 2C_505/2019 of 13.9.2019, consid. 5.1).
#3. Elements of the Provision / Normative Content
3.1 Lawyers' Patent
N. 8 A prerequisite for the applicability of Art. 2 para. 1 is the existence of a cantonal lawyers' patent. The lawyers' patent is, according to the Federal Supreme Court's classification, primarily a declaratory ruling that certifies the existence of the professional and personal requirements (judgment 2C_897/2015 of 25.5.2016, consid. 7.2.2). In so far as a canton — such as the Canton of Lucerne — grants the patent as a direct authorisation to represent parties, it may simultaneously be regarded as a police permit (judgments 2P.159/2005 of 30.6.2006, consid. 3.2; 6B_629/2015 of 7.1.2016, consid. 4.3.2). The requirements for the grant of the patent are governed by cantonal law, subject to compliance with the federal minimum requirements under Art. 7 para. 1 BGFA (→ Art. 3 para. 1 BGFA).
N. 9 The minimum professional requirements for the lawyers' patent are set out in Art. 7 para. 1 BGFA: a degree in law at the level of a licence or master's degree from a Swiss university and at least one year of practical training examinations. Holders of foreign lawyers' patents from EU/EFTA states may be entered in the lawyers' register pursuant to Art. 30–34 BGFA without having to produce a Swiss lawyers' patent; for them, the patent is replaced by an aptitude test (Art. 31 BGFA) or an aptitude interview (Art. 32 BGFA).
3.2 Activity «within the Scope of the Lawyers' Monopoly»
N. 10 The decisive element is the exercise of the activity «within the scope of the lawyers' monopoly». The lawyers' monopoly designates the area in which the cantons reserve the professional representation of parties before courts to patent-holding lawyers (BBl 1999 6031). As the Federal Supreme Court has explained, it is not a genuine monopoly in the legal sense but rather a classic economic-police restriction on admission designed to protect the public seeking legal assistance (BGE 130 II 87, consid. 3, p. 92).
N. 11 The cantons' competence to define the monopoly area and determine its scope is preserved pursuant to Art. 3 para. 2 BGFA. Cantons may exclude certain types of proceedings from the monopoly (e.g. summary criminal proceedings) or extend it (cf. BGE 147 IV 379, consid. 1.2.3, on Art. 127 para. 5 CrimPC). The monopoly area in criminal procedure follows additionally from Art. 127 para. 5 CrimPC, and in civil procedure from Art. 68 para. 2 CPC.
N. 12 The following are not subject to the scope of application according to BBl 1999 6031 f.:
- Lawyers acting as judges, court clerks, or administrative employees;
- Patent holders engaged exclusively in legal advice without appearing in the monopoly area;
- Patent holders working in the private sector (banks, industry) without party representation.
The Federal Supreme Court confirms that lawyers not entered in the cantonal lawyers' register and not active in litigation are subject neither to the professional rules under Art. 12 BGFA nor to the disciplinary supervision under Art. 14 ff. BGFA (judgment 6B_629/2015 of 7.1.2016, consid. 4.4, with reference to Fellmann, Anwaltsrecht, N. 70; Schiller, Schweizerisches Anwaltsrecht, N. 299; Nater, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 and 6 ff. on Art. 2 BGFA).
N. 13 Professional secrecy under Art. 13 BGFA, by contrast, protects not only the monopoly area: according to BGE 150 IV 470, consid. 3.1, the protection of secrecy covers all professional activities typical of legal practice, including pure legal advice outside the monopoly. Art. 2 para. 1 determines the scope of application of the Act; the substantive scope of protection of professional secrecy under Art. 13 BGFA and Art. 171 para. 1 CrimPC extends beyond this (→ Art. 13 BGFA; ↔ Art. 171 CrimPC, Art. 264 CrimPC).
3.3 Representation of Parties before Judicial Authorities
N. 14 «Judicial authorities» encompasses all civil courts, criminal courts, and administrative courts. According to Federal Supreme Court case law, the professional activity of lawyers in the monopoly area is protected by economic freedom (Art. 27 FC), and any restriction of this activity — in particular the refusal to register — requires a legal basis, must be justified by the public interest, and must be proportionate (BGE 130 II 87, consid. 3, p. 92).
N. 15 Registration pursuant to Art. 6 BGFA is the decisive interface between Art. 2 para. 1 and the practical application of the Act: a lawyer entered in the cantonal lawyers' register may represent parties before courts throughout Switzerland without any further authorisation (Art. 4 BGFA; ↔ Art. 6 BGFA). The personal requirements for registration are set out in Art. 8 BGFA, in particular the requirement of independence (Art. 8 para. 1 lit. d BGFA; → Art. 8 BGFA).
3.4 Nationality and EU/EFTA Lawyers (Para. 2)
N. 16 Para. 2 governs the modalities for EU/EFTA lawyers and follows the gradations of EU law: nationals of an EU/EFTA member state holding their home-country professional title may practise in Switzerland on a temporary basis pursuant to Art. 21–26 BGFA (provision of services) or on a permanent basis pursuant to Art. 27–34 BGFA (permanent practice, registration). The connecting factor is the Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681) and the EU Directives 77/249/EEC (temporary provision of services) and 98/5/EC (permanent practice). EU/EFTA lawyers are subject to the national treatment principle, in particular the professional rules under Art. 12 BGFA including the requirement of independence (BGE 130 II 87, consid. 5.1.2, pp. 101 f.).
#4. Legal Consequences
N. 17 Whoever falls within the scope of application of Art. 2 para. 1 is subject to the entire federal professional regime:
- Professional rules (→ Art. 12 BGFA): diligence, independence, avoidance of conflicts of interest, professional secrecy, duty of loyalty towards clients and the court;
- Professional secrecy (→ Art. 13 BGFA; ↔ Art. 321 SCC, Art. 171 CrimPC, Art. 160 CPC): substantive-law duty of confidentiality and procedural rights to refuse to testify;
- Disciplinary supervision (→ Art. 14–20 BGFA): breaches of the professional rules may be sanctioned with a caution, a reprimand, a fine of up to CHF 20,000, a temporary or permanent prohibition on practising (Art. 17 BGFA).
N. 18 Whoever does not satisfy the personal scope of application — in particular patent holders engaged exclusively in legal advice — is not subject to the BGFA, but is nonetheless bound by cantonal law to the extent that the cantons have declared the professional rules or disciplinary law to be applicable by analogy (e.g. § 8 para. 2 AnwG/LU; cf. judgment 2C_897/2015 of 25.5.2016, consid. 4.2). Under federal law, there is no disciplinary jurisdiction over purely advisory lawyers.
N. 19 The criminal-law significance of lawyer status is independent of Art. 2: Art. 138 no. 2 SCC (aggravated misappropriation) applies to holders of the lawyers' patent even if they are not entered in the lawyers' register and were not active in the monopoly area, provided they received assets «in the exercise of their profession» and held themselves out to the public as lawyers (judgment 6B_629/2015 of 7.1.2016, consid. 4.3.1–4.4). The criminal-law protection of confidence in the lawyers' title thus survives beyond the scope of application of the BGFA.
#5. Contested Issues
5.1 Lawyers' Patent as Declaratory Ruling or Police Permit?
N. 20 The legal nature of the lawyers' patent is disputed in case law and legal writing. The traditional view classifies the lawyers' patent as a cantonal police permit that directly authorises the practice of the profession (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 672; judgment 2P.159/2005 of 30.6.2006, consid. 3.2; judgment 6B_629/2015 of 7.1.2016, consid. 4.3.2). In judgment 2C_897/2015 of 25.5.2016, consid. 7.2.2, the Federal Supreme Court refined this classification for the case in which a canton — such as Lucerne after the introduction of the BGFA — no longer issues a cantonal authorisation to represent parties but relies exclusively on registration under Art. 4 BGFA: in this context, the patent is a declaratory ruling that certifies the existence of the professional and personal requirements for the profession without itself authorising party representation.
N. 21 Kettiger (Entzug des Anwaltspatents, Jusletter 28.9.2009, pp. 4 f.) advocates the minority view that the lawyers' patent, given its systematic position within the BGFA (Art. 7 BGFA: professional requirements; Art. 8 BGFA: personal requirements only for registration), can only be regarded as a pure certificate of competence without any independent police character. The Federal Supreme Court has not followed this narrow view; it has clarified that the cantons may also attach personal requirements to the patent and, accordingly, may revoke it if those requirements cease to be met (judgment 2C_897/2015 of 25.5.2016, consid. 6.2.3 and 6.3).
5.2 Does Professional Secrecy Extend Beyond the Monopoly Area?
N. 22 The delineation between the scope of application of the BGFA (Art. 2 para. 1: monopoly area) and the protective scope of professional secrecy is of considerable importance in both legal writing and practice. Whereas Art. 2 para. 1 restricts the personal scope of application of the Act to lawyers active in litigation, the Federal Supreme Court has expressly held in BGE 150 IV 470, consid. 3.1, and BGE 147 IV 385, consid. 2.6.2, that the protection of secrecy under Art. 171 para. 1 CrimPC and Art. 264 para. 1 CrimPC covers all professional activities typical of legal practice, including legal advice and fact-gathering outside the monopoly.
N. 23 Nater/Zindel (Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 121 on Art. 13 BGFA), as well as Schiller (Schweizerisches Anwaltsrecht, 2009, para. 338) and Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 549 and 662) support the broad interpretation: professional secrecy protects the relationship of trust between lawyer and client and would be undermined if restricted to the monopoly area. This position was confirmed by the Federal Supreme Court in BGE 150 IV 470, consid. 3.1. Art. 2 BGFA must therefore not be read as a provision delimiting the protective scope of professional secrecy.
5.3 Disciplinary Supervision over Patented, Non-Registered Lawyers
N. 24 It is disputed whether cantons may extend their disciplinary powers to patented lawyers who are not entered in the lawyers' register and who practise outside the monopoly area. The BGFA conclusively regulates disciplinary law (BGE 130 II 270, consid. 1.1 and 3.1.1; judgment 2C_344/2007 of 22.5.2008, consid. 1). Under federal law, non-registered lawyers are not subject to disciplinary supervision. Nater (Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 8b on Art. 3 BGFA) expresses reservations regarding cantonal extensions such as § 8 para. 2 AnwG/LU. The Federal Supreme Court left this question open in judgment 2C_897/2015 of 25.5.2016, consid. 5.2.2, while highlighting the tension between conclusive federal law and cantonal discretion.
#6. Practical Notes
N. 25 Scope-of-application assessment: Whether a lawyer is subject to the BGFA depends exclusively on whether she or he (a) holds a cantonal patent and (b) actually represents parties before courts within the monopoly area. The mere existence of the patent is not sufficient. Extensive advisory mandates without court representation likewise do not give rise to BGFA applicability.
N. 26 Duty to register: Any person who wishes to practise in the monopoly area must be registered (Art. 6 para. 1 BGFA). Registration is a prerequisite for intercantonal freedom of movement (Art. 4 BGFA). Any person who fails to apply for registration but nonetheless appears before courts acts without authorisation. An exception is possible only in cantons that make use of Art. 3 para. 2 BGFA and permit representation before their own courts without registration.
N. 27 Employed lawyers: Employed lawyers are subject to the scope of application of Art. 2 para. 1 only if they are actually active in the monopoly area. If they are employed exclusively as in-house counsel or in the administration without party representation, the BGFA does not apply (BBl 1999 6031 f.). For employed lawyers who wish to practise in the monopoly area, the requirement of independence under Art. 8 para. 1 lit. d BGFA applies, with the rebuttable presumption of lack of independence (BGE 130 II 87, consid. 5.1; → Art. 8 BGFA).
N. 28 Criminal-law relevance: The scope of application defined in Art. 2 para. 1 does not have a conclusive effect for criminal law. A patented but unregistered and non-litigating lawyer enjoys heightened public trust; if assets are entrusted to them «in the exercise of their profession», Art. 138 no. 2 SCC applies (judgment 6B_629/2015 of 7.1.2016, consid. 4.4). The BGFA regime and the criminal-law protection regime must be distinguished in this respect.
N. 29 Professional secrecy outside the monopoly: A lawyer providing advisory services outside the monopoly area is not subject to the BGFA but nonetheless benefits from the procedural protection of secrecy under Art. 171 para. 1 CrimPC and Art. 264 para. 1 lit. d CrimPC — provided the activity is professionally typical for legal practice and not an ancillary commercial-operational activity (BGE 150 IV 470, consid. 3.1). This is particularly relevant for in-house counsel conducting external mandates and for internal investigations.
N. 30 Cantonal law: Art. 2 BGFA leaves cantonal law unaffected to the extent that it independently regulates the requirements for the lawyers' patent (Art. 3 para. 1 BGFA) and representation before cantonal courts (Art. 3 para. 2 BGFA). Cantonal lawyers' acts may provide for stricter personal and professional requirements for the patent; they may also provide for the revocation of the patent upon the lapse of the conditions for its grant (judgment 2C_897/2015 of 25.5.2016, consid. 6.3). The applicable cantonal implementing legislation is determinative (e.g. AnwG/ZH, KAG/BE, AnwG/LU).
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