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Art. 24 BGFA — Professional Title
#Doctrine
#1. Legislative History
N. 1 Art. 24 BGFA implements Art. 3 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (Services Directive). That Directive prescribes that a lawyer providing services in a Member State other than the home Member State shall use «the professional title used in the Member State in which he acquired the right to use that title». According to the Federal Council's Dispatch of 28 April 1999 on the BGFA (BBl 1999 6013, 6053), the express objective was to transpose the obligations arising from Art. 3 of the Services Directive, whereby the professional title must be used in the official language of the home state together with an indication of the competent professional organisation or the court before which the lawyer is authorised to practise. The Dispatch explicitly established the connection with Art. 16 BGFA (Switzerland-wide prohibition on practice): the professional title requirement corresponds to the nationwide effect of disciplinary measures and is intended to ensure clear transparency vis-à-vis the public seeking legal advice (BBl 1999 6053).
N. 2 The parliamentary procedure took place in multiple phases and included numerous divergences between the Chambers: the National Council resolved on 1 September 1999, the Council of States on 20 December 1999, both deviating from the draft. Further rounds of conciliation followed on 7 March 2000 (National Council), 16 March 2000 (Council of States, referral back to committee), 5 June 2000 (Council of States) and 14 June 2000 (National Council), until the Council of States approved on 20 June 2000 and both Chambers adopted the Act in the final vote on 23 June 2000. According to the legislative materials, the divergences concerned primarily other provisions of the BGFA — in particular questions of intercantonal freedom of movement, the maintenance of registers and disciplinary supervision — but not Art. 24 BGFA, which was adopted unchanged from the Federal Council's draft. The Federal Supreme Court noted in BGE 151 II 640 at consid. 5.3 that the draft of Art. 27 and 28 BGFA (the immediate successor provisions in the establishment regime) «was adopted by the Chambers without discussion», which — read together with the absence of any reference to divergences regarding Art. 24 — indicates that the basic architecture of the professional title requirement for EU/EFTA lawyers providing services was uncontested in Parliament. The transparency purpose intended by the Federal Council (BBl 1999 6053) has been confirmed by the case law — in particular BGE 151 II 640 at consid. 4.2.1 — where the Federal Supreme Court held that lawyers providing services «use their original professional title in the official language of their home state, indicating the professional organisation […] or the court before which they are authorised to practise under the rules of that state (Art. 24 BGFA)» and that this obligation serves to protect the public seeking legal advice.
#2. Systematic Classification
N. 3 Art. 24 BGFA is located in the fourth section of the Act («Lawyers from Member States of the EU or EFTA», Art. 21–34a) and forms part of the rules on the freedom to provide services (Art. 21–26 BGFA). The provision applies directly to lawyers providing services within the meaning of → Art. 21 para. 1 BGFA. By virtue of the reference in → Art. 27 para. 2 BGFA, Art. 23–25 BGFA also apply to EU/EFTA lawyers who have registered on the EU/EFTA lawyers' list pursuant to Art. 28 BGFA and are practising in Switzerland on a permanent basis. Art. 24 BGFA thus constitutes a connecting element between the services regime (Art. 21–26 BGFA) and the establishment regime (Art. 27–29 BGFA); in both situations EU/EFTA lawyers must appear under their original professional title. The distinction from the rule under → Art. 33 BGFA is significant: only upon entry in the cantonal lawyers' register pursuant to → Art. 30 BGFA may the professional title customarily used in the canton («Rechtsanwalt», «Advokat», etc.) be used.
N. 4 Art. 24 BGFA gives specific expression to the principle of transparency towards the public seeking legal advice. It stands in a functional relationship with → Art. 12 lit. d BGFA, which prohibits misleading conduct in general, and establishes for EU/EFTA lawyers a specific framework for the use of titles that goes beyond the general professional obligations. A violation of Art. 24 BGFA simultaneously constitutes a violation of Art. 12 lit. a and lit. d BGFA and may trigger a disciplinary measure under → Art. 17 BGFA (Supervisory Commission for Lawyers of the Canton of Zurich, decision of 26 August 2010, KG10008, consid. 4.3.2.5).
#3. Elements of the Provision / Normative Content
N. 5 Personal scope of application. Art. 24 BGFA applies to «lawyers providing services». These are EU/EFTA lawyers who are practising in Switzerland in the context of freedom to provide services pursuant to → Art. 21 para. 1 BGFA without having registered on the cantonal EU/EFTA lawyers' list. By virtue of the reference in Art. 27 para. 2 BGFA, the obligation applies equally to lawyers registered on the list. The Federal Supreme Court confirmed this expressly in BGE 151 II 640 at consid. 4.2.2: «Like lawyers providing services […], lawyers on the EU/EFTA lawyers' list use their original professional title in the official language of their home state, indicating the professional organisation to whose jurisdiction they are subject or the court before which they are authorised to practise under the rules of that state (Art. 24 in conjunction with Art. 27 para. 2 BGFA).»
N. 6 Original professional title in the official language of the home state. The lawyer must use the professional title that he or she holds in the home state and which is listed in the Annex to the BGFA. The use of a translation or of a Swiss professional title («Rechtsanwalt», «Avocat», «Avvocato») is not permissible unless the lawyer is entered in the cantonal lawyers' register pursuant to → Art. 30 BGFA. A German member of a bar association (Rechtsanwaltskammer) bears the title «Rechtsanwalt» (which, however, requires particular clarification in the Swiss context, → N. 10 below); a French Avocat and a British Solicitor or Barrister use the respective home-state designations in their original language. The decisive language is the official language of the home state, not that of the Swiss forum. This also applies to multilingual home states: the relevant official language is the one in which the lawyer is admitted before the competent authority (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 218). Nater/Tuchschmid, in: Thürer/Weber/Zäch (eds.), Bilaterale Verträge I/II Schweiz–EU, 2007, p. 320, note that the purpose of using the original designation in the language of the home state is to allow the public seeking legal advice to recognise at once that these lawyers have not acquired their professional qualifications in Switzerland.
N. 7 Indication of the professional organisation or the authorising court. In addition to the professional title, one of two alternative indications is mandatory: either (a) the professional organisation to whose jurisdiction the lawyer is subject (e.g. «Rechtsanwaltskammer Berlin», «Ordre des avocats de Paris»), or (b) the court before which he or she is authorised to practise under the rules of the home state (e.g. «admitted before the Tribunal de grande instance de Lyon»). The indication serves to enable the public to draw conclusions as to the specific origin of the qualification and the competent home-state authority (Nater/Tuchschmid, op. cit., p. 320; Dreyer, in: Fellmann/Zindel, Kommentar zum Anwaltsgesetz, 2005, Art. 24 N. 1). The Supervisory Commission for Lawyers of the Canton of Zurich has accepted that the indication may be provided by means of a footnote on letterhead; this practice corresponds to «the customary and widespread practice today» (KG10008, consid. 4.3.4.2).
N. 8 Content of the indication: reference to all professional titles. The obligation under Art. 24 BGFA extends not only to the general professional title but to all titles used by the EU/EFTA lawyer, in particular also to specialist-lawyer titles (Fachanwaltstitel) from the home state. The Supervisory Commission of Zurich held in KG10008 that «a specialisation as a specialist lawyer (Fachanwalt/Fachanwältin) […] must also be classified as a professional title within the meaning of Art. 24 BGFA in terms of its content», so that a reference to the home state must also be attached to the specialist-lawyer title. A German Rechtsanwältin holding the title «Fachanwältin für Familienrecht» (specialist in family law) must accordingly make clear that it is a German and not a Swiss title — for example as «Deutsche Fachanwältin für Familienrecht» or with a corresponding footnote. The reference to the home state on the superior professional title «Rechtsanwältin» alone is not sufficient for the specialist-lawyer title (KG10008, consid. 4.3.4.3).
#4. Legal Consequences
N. 9 Mandatory nature and scope of application. Art. 24 BGFA contains a legal obligation, not a mere directory provision. The professional title must be correctly used wherever the EU/EFTA lawyer appears: on letterhead, in submissions, in firm signatures, on business cards, on websites and in all other advertising materials (KG10008, consid. 4.3.3.5). The obligation arises upon commencement of practice in Switzerland and applies regardless of whether the lawyer is acting under the services regime or as a lawyer registered on the EU/EFTA lawyers' list.
N. 10 Disciplinary sanction. A violation of Art. 24 BGFA constitutes a violation of the professional rules under Art. 12 lit. a and lit. d BGFA and may be sanctioned by the cantonal supervisory authority with disciplinary measures under → Art. 17 BGFA (KG10008, consid. 4.3.2.5). A reprimand or a fine is particularly envisaged; in the case of repeated or serious violations a temporary prohibition on practice is also possible. Under the framework of the BGFA, the prohibition on practice applies throughout the entire territory of Switzerland and must be notified to the supervisory authorities of all cantons (BBl 1999 6053; → Art. 16 BGFA).
N. 11 Distinction from the unauthorised use of Swiss professional titles. If an EU/EFTA lawyer uses a Swiss professional title («Rechtsanwalt» within the meaning of Art. 2 para. 1 BGFA, i.e. as a person entered in a Swiss lawyers' register) instead of the original professional title, that lawyer is guilty of the unauthorised use of a title under cantonal lawyers' law and additionally violates Art. 12 lit. d BGFA. The risk of confusion is at the core of the protective rationale of Art. 24 BGFA: as the Court of Justice of the European Union held in C-168/98 (Grand Duchy of Luxembourg, judgment of 7 November 2000, para. 34), the consumer must be informed «that the lawyer to whom they entrust the protection of their interests has not obtained his qualification in the host State» (cited in KG10008, consid. 4.3.3.6).
#5. Points of Contention
N. 12 Scope of the title obligation for lawyers with multiple offices. Academic commentary agrees that Art. 24 BGFA establishes a strict obligation to use the original professional title. The extent of that obligation is, however, disputed: Kellerhals/Baumgartner, in: Fellmann/Zindel, Kommentar zum Anwaltsgesetz, 2005, Art. 27 N. 4, emphasise that the retention of the foreign professional title also serves as an aid for the public in deciding «whether the lawyer in question, with demonstrated knowledge of a foreign legal system, should also be entrusted with questions of Swiss law». Dreyer, in: Fellmann/Zindel, op. cit., Art. 24 N. 1, by contrast, places greater emphasis on the protective rationale for the public seeking legal advice: Art. 24 BGFA is intended to ensure that the public «can at once recognise that this category of lawyers has not acquired its professional qualifications in Switzerland». Both positions converge in their outcome: the title obligation is comprehensive and may not be circumvented by omission or abbreviation. It remains an open question whether an EU/EFTA lawyer who holds Swiss citizenship is nonetheless obliged to use the foreign professional title if that lawyer is (only) subject to the EU/EFTA regime and not entered in the cantonal lawyers' register; the answer follows from the clear wording of Art. 24 BGFA: the decisive factor is not citizenship but status (providing services or listed on the EU/EFTA list vs. entry in the cantonal register).
N. 13 Distinction between «professional title» and «specialist-lawyer title». The Supervisory Commission of Zurich held in KG10008 that home-state specialist-lawyer titles qualify as a «professional title» within the meaning of Art. 24 BGFA. This interpretation has, as far as can be seen, not been contested in the academic commentary. The practical challenge lies in the fact that many EU Member States have specialist-lawyer titles that may be confused with Swiss SAV specialist-lawyer titles. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 841, point out that the Establishment Directive (Directive 98/5/EC) fully harmonises the conditions for registration but leaves questions regarding the specific use of titles in the host state to national provisions, provided there is no excessive restriction on freedom of movement. The obligation to include a home-state reference on the specialist-lawyer title is compatible with EU law, since it merely ensures transparency without prohibiting the use of the title.
N. 14 Alignment of the title in cases of multilingualism. For lawyers from multilingual home states (e.g. Belgium, Luxembourg) the question arises as to which official language is determinative where the lawyer is admitted in multiple languages. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 218, takes the obvious position that the relevant official language is the one in which the lawyer is concretely registered with the competent authority. Nater/Tuchschmid, op. cit., p. 320, favour the same solution on grounds of transparency. The Act itself is silent on this question; a choice by the lawyer would be compatible with the protective rationale of Art. 24 BGFA, provided that the language chosen is an actual official language of the home state and the professional organisation or the authorising court is designated unambiguously.
#6. Practical Notes
N. 15 Correct use on letterhead and in submissions. The solution widely used in practice — placing the home-state professional title as the main title and the required indication (professional organisation or authorising court) as a footnote on the letterhead — has been accepted by the Supervisory Commission of Zurich as permissible under disciplinary law (KG10008, consid. 4.3.4.2). However, the footnote must be attached to every independent professional title; the home-state reference on the general title does not automatically cover a separately used specialist-lawyer title (KG10008, consid. 4.3.4.3). A country-specific clarification is recommended, e.g. «Deutsche Rechtsanwältin» or «Rechtsanwältin (Germany), registered with the Rechtsanwaltskammer X».
N. 16 Distinction from permanent practice and entry in the register. EU/EFTA lawyers who have been entered in the cantonal lawyers' register pursuant to Art. 30 BGFA are no longer bound by Art. 24 BGFA; they may use the professional title customarily used in the canton (→ Art. 33 BGFA). The transitional phase is relevant in practice: a lawyer who is registered on the EU/EFTA lawyers' list and is simultaneously seeking entry in the cantonal lawyers' register (→ Art. 30 para. 1 lit. b BGFA after three years of practice) must continue to appear under the original professional title in accordance with Art. 24 BGFA until registration is successfully completed. Only upon entry in the register pursuant to → Art. 30 BGFA does this obligation cease to apply.
N. 17 Websites and social media. The title obligation applies not only to traditional legal communications but to all forms of legal practice and advertising, including websites and social-media profiles. The Supervisory Commission of Zurich expressly held in KG10008 that the home-state reference must be «attached wherever the professional title is used by the lawyer, i.e. in submissions, on documents of any kind, in firm brochures, on business cards, on the internet, etc.» (KG10008, consid. 4.3.3.5). This applies correspondingly to social-media profiles and online directories. The footnote solution has become established as the standard for practical implementation with the principal professional title (→ N. 15 above).
Cross-references: → Art. 21 BGFA (principles of freedom to provide services); → Art. 22 BGFA (proof of legal qualification); → Art. 23 BGFA (consultation with a local lawyer where legal representation is mandatory); → Art. 25 BGFA (professional rules in the provision of services); → Art. 27 para. 2 BGFA (reference to Art. 24 for permanently practising EU/EFTA lawyers); → Art. 30 BGFA (entry in the cantonal lawyers' register); → Art. 33 BGFA (professional title following registration); ↔ Art. 12 lit. d BGFA (misleading conduct); → Art. 16 BGFA (Switzerland-wide prohibition on practice); → Art. 17 BGFA (disciplinary measures); Art. 3 Directive 77/249/EEC (Services Directive); Art. 4 Directive 98/5/EC (Establishment Directive, professional title in permanent practice).
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