Art. 20 BGFA — Deletion of Disciplinary Measures

#Doctrine

#1. Legislative History

N. 1 Art. 20 BGFA traces back to the Federal Council's draft of 28 April 1999. The Message (BBl 1999 6013, 6061) explains the deletion periods as an instrument for harmonising inter-cantonal register-keeping: the register-law requirements of the BGFA aim at «mere harmonisation between the cantons» — as the Federal Supreme Court expressly stated, drawing on this passage of the Message (BGE 150 II 308 E. 5.7; BGE 130 II 270 E. 3). Before the BGFA entered into force on 1 June 2002, register-keeping was exclusively the responsibility of the cantons, with no deletion periods under federal law. Art. 20 BGFA created, for the first time, uniform minimum periods applicable throughout Switzerland.

N. 2 The parliamentary deliberations did not proceed without deviations from the Federal Council's draft. The National Council decided on 1 September 1999 in a manner diverging from the draft; the Council of States followed on 20 December 1999. After several rounds of conciliation — National Council (7 March 2000), Council of States (16 March 2000, referral back to committee; 5 June 2000), National Council (14 June 2000) — the Council of States agreed on 20 June 2000. Both chambers adopted the Act in the final vote of 23 June 2000. The specific periods of five years (para. 1) and ten years (para. 2) were consolidated in the course of these deliberations; the legislative materials do not contain any recorded statements by individual members of parliament on the length of the periods that would document a dissenting position.

#2. Systematic Classification

N. 3 Art. 20 BGFA is situated in the third section of the second chapter («Professional Rules and Supervision», Art. 12–20 BGFA) and concludes that section. The provision forms the register-law counterpart to Art. 5 para. 2 lit. e BGFA, under which the cantonal register contains disciplinary measures that have not been deleted, and to Art. 10 para. 1 lit. c BGFA, which grants cantonal supervisory authorities access to the register. Art. 20 BGFA thus defines the scope of the register's content accessible to those entitled to inspect it under Art. 10 BGFA. → Art. 5 para. 2 lit. e BGFA; ↔ Art. 10 para. 1 BGFA.

N. 4 As part of the exhaustively regulated disciplinary law of the BGFA (BGE 130 II 270 E. 1.1; BGE 132 II 250 E. 4.3.1), Art. 20 BGFA is mandatory for the cantons: they may provide for neither shorter nor longer deletion periods. The BGFA comprehensively governs disciplinary measures and their treatment under register law, leaving no room for supplementary cantonal law (→ Art. 17 BGFA). The fact that cantonal law may not impose additional sanctions — such as publication in the Official Gazette — is expressly confirmed by BGE 150 II 308 E. 7.4–7.9.

N. 5 Within the overall system, Art. 20 BGFA is the counterpart provision to Art. 17 BGFA (catalogue of disciplinary measures) and to Art. 19 BGFA (enforcement and notification of the temporary prohibition to practise). The deletion periods also complement Art. 16 para. 2 BGFA, which provides that an out-of-canton supervisory authority must give the supervisory authority of the register canton an opportunity to comment before imposing a disciplinary measure — an instrument that also enables out-of-canton authorities to take note of measures that have already been deleted but are known from other sources (→ BGE 150 II 308 E. 5.9).

#3. Elements of the Provision / Normative Content

N. 6 Art. 20 para. 1 BGFA governs the deletion of the three lesser disciplinary measures in the catalogue: reprimand (Art. 17 para. 1 lit. a BGFA), censure (Art. 17 para. 1 lit. b BGFA), and fine (Art. 17 para. 1 lit. c BGFA). The period of five years begins to run from the imposition of the measure, i.e. from the date on which the disciplinary ruling becomes final (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 738). Deletion occurs ex officio; no application by the lawyer concerned is required.

N. 7 Art. 20 para. 2 BGFA addresses the temporary prohibition to practise (Art. 17 para. 1 lit. d BGFA). The period is ten years and begins to run not from the imposition but from the lifting of the prohibition. This refers to the point in time at which the prohibition to practise actually ended — either by expiry of time or by a decision of the authority. For the permanent prohibition to practise (Art. 17 para. 1 lit. e BGFA), Art. 20 BGFA provides no deletion period, since a permanent measure does not, by definition, come to an end. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N 2138, note that this differentiation according to the seriousness of the measure is consistent and serves the objective of protecting the public.

N. 8 The provision contains no rule on the manner of deletion (electronic deletion, anonymisation, physical destruction). This question is left to cantonal law, which independently regulates the organisational implementation under Art. 34 BGFA. Equally, Art. 20 BGFA does not address whether, or for how long, records relating to deleted measures must be retained — a matter that is relevant to the debate on the usability of deleted measures (→ N. 12 ff.).

N. 9 The register's content after expiry of the deletion period follows by implication from Art. 5 para. 2 lit. e BGFA: deleted measures no longer appear in the register. This information is therefore no longer accessible from the register to the authorities entitled to inspect it under Art. 10 BGFA. The Cantonal Court of Lucerne concluded from this that «only the disciplinary measures of the last five years may be taken into account when determining the disciplinary measure» (Decision 11 09 73.2 of 8 July 2009, LGVE 2010 I No. 34). The Federal Supreme Court refined this cantonal practice in BGE 150 II 308 (→ N. 12 ff.).

#4. Legal Consequences

N. 10 The deletion of a disciplinary measure under Art. 20 BGFA has the effect that the measure disappears from the cantonal register and is therefore no longer accessible to the bodies entitled to inspect it under Art. 10 BGFA. However, under the current state of case law, it does not give rise to an absolute prohibition on use within the meaning of the former Art. 369 para. 7 SCC (in the version in force until 22 January 2023). Supervisory authorities may take deleted measures, of which they are aware from other records, into account in subsequent disciplinary proceedings (BGE 150 II 308 E. 5.10).

N. 11 Deletion has a rehabilitative effect in register law for the lawyer concerned: bodies with access to the register will no longer learn of the deleted measure. Nater/Zindel, Kommentar zum Anwaltsgesetz, 2nd ed. 2020, Art. 20 N. 4, characterise this effect as an expression of the rehabilitation principle, which also has a place in disciplinary law, even if it cannot claim the same intensity as in criminal law. The Federal Supreme Court shares this assessment in principle, but qualifies it in the context of sentencing (BGE 150 II 308 E. 5.8).

#5. Disputed Questions

N. 12 The central doctrinal dispute concerns the effect of deletion on the determination of sanctions in subsequent disciplinary proceedings. Two positions are opposed:

N. 13 Position 1 (relative prohibition on use, academic view): Brunner/Henn/Kriesi, Anwaltsrecht, 2015, p. 251, take the view that measures no longer apparent from the register «must be disregarded». Nater/Zindel, Kommentar zum Anwaltsgesetz, 2nd ed. 2020, Art. 20 N. 4, emphasise the rehabilitation principle and also tend to ascribe to deletion a sanction-limiting effect. The Cantonal Court of Lucerne adopted this view in an early decision (Decision 11 09 73.2 of 8 July 2009). In support, reference was made to the parallel with former Art. 369 para. 7 SCC, which contained a comprehensive prohibition on use in respect of the criminal records register; a lawyer should not, after expiry of the period, be treated as having a «prior record».

N. 14 Position 2 (free usability with temporal relativisation, Federal Supreme Court case law): The Federal Supreme Court consolidated and refined its line of case law in BGE 150 II 308 E. 5.5–5.10. Earlier disciplinary measures — including those that have already been deleted from the cantonal register — may be taken into account in the determination of sanctions. Three arguments support this conclusion:

«It cannot be inferred from the federal-law order of register law in the BGFA that the supervisory authorities are obliged to ignore deleted measures.» (BGE 150 II 308 E. 5.7)

First, Art. 10 BGFA governs only the scope of access to the register, not the substantive usability of knowledge available to the authorities from other sources. Second, the criminal-law prohibition on use under former Art. 369 para. 7 SCC was repealed when the Criminal Records Act (CRA) entered into force on 23 January 2023, reflecting the legislature's assessment that the significance of the «right to be forgotten» should be curtailed (BGE 150 II 308 E. 5.6.3). Third, disciplinary measures primarily serve to protect the public from problematic members of the profession, so that the rehabilitation principle carries less weight in disciplinary law than in criminal law (BGE 150 II 308 E. 5.8). The decisive qualification is, however, that deleted sanctions generally diminish in significance as time passes (BGE 150 II 308 E. 5.10). For this reason, the Federal Supreme Court's solution has also met with approval from Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 740, who emphasises the preventive function of disciplinary measures.

N. 15 Relationship to cantonal practice: Cantonal courts have decided differently. The Administrative Court of the Canton of Zurich, in several decisions of 2015 (VB.2015.00320, VB.2015.00321, VB.2015.00432), changed its case law and permitted disciplinary proceedings to continue despite deletion from the register where the deletion had been made on the application of the lawyer concerned. The Administrative Court of St. Gallen directly applied the principles of BGE 150 II 308 concerning the impermissibility of publication in the Official Gazette to a further case (Decision B 2024/2, B 2024/122 of 15 August 2024). Cantonal practice is thus converging on the Federal Supreme Court's line of permitting the usability of deleted measures while reducing their weight as time passes.

N. 16 Demarcation — permanent prohibition to practise: While clear deletion periods apply to reprimands, censures, fines, and temporary prohibitions to practise, the permanent prohibition to practise (Art. 17 para. 1 lit. e BGFA) is not covered by Art. 20 BGFA. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N 2140, infer from this that the permanent prohibition to practise remains in the register indefinitely and has no rehabilitative effect. This interpretation is compatible with the wording of Art. 5 para. 2 lit. e BGFA, under which the register contains measures that have «not been deleted» — which, in the case of a permanent prohibition, encompasses all such measures.

#6. Practical Notes

N. 17 Register-keeping and enforcement: The cantons are obliged to monitor the deletion periods under Art. 20 BGFA ex officio and to carry out deletion within the prescribed time. The starting point of the period under para. 1 (five years from imposition) is the date on which the disciplinary ruling becomes final, not the date of the first-instance decision. For the temporary prohibition to practise under para. 2, the ten-year period begins with the actual termination of the prohibition; the lifting must be notified to the supervisory authorities of all cantons in accordance with Art. 19 BGFA, so that the period begins to run uniformly across all cantons.

N. 18 Inter-cantonal dimension: In the inter-cantonal relationship, disciplinary measures must be communicated between supervisory authorities in accordance with Art. 16 para. 2 BGFA and Art. 18 para. 2 BGFA. Deleted measures no longer need to be communicated — they no longer appear in the register. An out-of-canton supervisory authority that is aware of an already deleted measure from other records may, in accordance with BGE 150 II 308 E. 5.9–5.10, take it into account in its assessment, but must give it decreasing weight as time passes.

N. 19 Evidentiary questions: Since deletion removes the register entry, the supervisory authority that seeks to rely on a deleted measure bears the burden of proof as to its existence and content. Proof must be adduced from the official records (e.g. earlier case files). A supervisory authority cannot base its reasoning for a disciplinary measure solely on the assertion that earlier measures are «known», without substantiating them.

N. 20 Impermissible cantonal additions: Publication of disciplinary measures in cantonal official gazettes is contrary to federal law, because the BGFA comprehensively regulates disciplinary measures and publication must be characterised as an independent repressive sanction (BGE 150 II 308 E. 7.4–7.9). Cantons that include corresponding provisions in their cantonal implementation acts or lawyers' acts (such as the Canton of Zug with § 23 para. 1 lit. d EG BGFA/ZG) must adapt these provisions. The Administrative Court of St. Gallen gave direct effect to this principle in its decision of 15 August 2024 (B 2024/2, B 2024/122).

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Cross-references: → Art. 5 para. 2 lit. e BGFA (register content); ↔ Art. 10 para. 1 BGFA (access to register); ↔ Art. 17 BGFA (catalogue of disciplinary measures); → Art. 18 para. 2 BGFA (inter-cantonal notification); → Art. 19 BGFA (enforcement of prohibition to practise); → Art. 34 BGFA (cantonal procedural law); ↔ Art. 49 para. 1 FC (primacy of federal law).

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