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Art. 3 BGFA — Relationship to Cantonal Law
#Doctrine
#1. Legislative History
N. 1 The BGFA entered into force on 1 June 2002 (SR 935.61). The Federal Constitution requires the Confederation to ensure the freedom of movement of lawyers (Art. 95 para. 2 FC). Prior to the BGFA, access to the legal profession was regulated exclusively by the cantons; inter-cantonal practice required a separate authorisation in each canton of destination. In the Federal Council's Dispatch of 28 April 1999, these authorisation procedures were criticised as bureaucratic (BBl 1999 6013, 6032 f.). The BGFA realises inter-cantonal freedom of movement through the principle of mutual recognition of cantonal register entries: registered lawyers may represent parties before judicial authorities throughout Switzerland without further authorisation (BBl 1999 6013, 6032).
N. 2 The original draft legislation contained no provision corresponding to Art. 3. The article originates from an initiative of the Council of States committee, which sought an express clarification of cantonal competences in the area of legal training (BGE 134 II 329 E. 5.4, with reference to BO 1999 CE 1163). The committee wished to ensure that the cantons retained their authority to determine the requirements for obtaining the cantonal patent as a lawyer (BO 1999 CE 1163 f.). The National Council agreed to the insertion without significant opposition (BO 2000 CN 37). The Council of States then adopted the final version in several rounds of deliberation to resolve differences (including on 20 December 1999 and 5 June 2000); the final votes took place on 23 June 2000.
N. 3 The Dispatch emphasised that the requirements for registration in the register were to be examined once and for all at the time of entry; cantons may not impose additional professional or personal requirements on lawyers who are already registered. At the same time, cantons were to remain entitled to refuse lawyers without registration the right to represent parties before their courts. An alternative proposal — put forward by two consultation respondents — mentioned in the Dispatch was the obligation to formally prove register entry upon first appearance before a court; the Federal Council rejected this approach as too burdensome (BBl 1999 6013, 6032 f.).
#2. Systematic Classification
N. 4 Art. 3 BGFA is situated in the first section of the Act («Freedom of Movement of Lawyers», Art. 1–11) and forms the interface between the federal freedom-of-movement framework and the cantonal training competences. It is the counterpart to Art. 4 BGFA: whereas Art. 4 guarantees the positive freedom of movement of registered lawyers, Art. 3 determines which areas — the acquisition of the patent and the cantonal monopoly area — remain open to cantonal law. ↔ Art. 4 BGFA (principle of freedom of movement), ↔ Art. 7 BGFA (professional requirements), ↔ Art. 8 BGFA (personal requirements). → Art. 12 BGFA (professional rules), → Art. 17 BGFA (disciplinary measures).
N. 5 The relationship to the Internal Market Act (BGBM, SR 943.02) is of practical significance. The BGFA was originally regarded as lex specialis in relation to the BGBM; following the revision of the BGBM of 16 December 2005 (in force since 1 July 2006), the principle of free market access (Art. 2 para. 4 BGBM) takes precedence over Art. 3 para. 1 BGFA in those areas that the BGFA does not conclusively regulate (BGE 134 II 329 E. 5.2 f.). To the extent that cantonal law, on the basis of Art. 3 para. 1 BGFA, restricts the free market access of lawyers, it must satisfy the requirements of Art. 3 BGBM (in particular the principle of proportionality) (→ N. 14).
#3. Elements of the Provision / Normative Content
N. 6 Paragraph 1: Cantonal competence for the acquisition of the patent as a lawyer. Art. 3 para. 1 BGFA reserves to the cantons the right to determine, within the framework of the BGFA, the requirements for acquiring the cantonal patent as a lawyer. The wording «within the framework of this Act» makes clear that the cantonal regulatory powers are limited by federal law: cantons may impose more stringent requirements, but may not fall below the minimum standards of Art. 7 BGFA (Nater, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 3 BGFA, cited in BGE 134 II 329 E. 5.1). The scope of this competence includes in particular: the design of the traineeship, the specification of examination subjects and modalities, and the award of the certificate of competence.
N. 7 The Federal Supreme Court expressly confirmed in BGE 131 I 467 E. 3.3 that each canton may itself determine the requirements for obtaining the cantonal patent as a lawyer. This applies equally to specific examination elements that go beyond the federal minimum standard (in the case at hand: a two-week take-home examination as part of the Basel bar exam). A canton does not violate Art. 3 para. 1 BGFA by introducing more demanding examination formats than other cantons; the non-recognition of a partial examination passed in another canton conflicts with the principle of equal treatment only within, not between, cantons (BGE 131 I 467 E. 3.3).
N. 8 Paragraph 2: Cantonal admission of patent holders who are not registered. Art. 3 para. 2 BGFA gives cantons the right to permit persons who hold a cantonal patent as a lawyer but are not entered in the lawyers' register to represent parties before their own judicial authorities. This is a permissive provision: cantons may grant this right or refrain from doing so. If they do not avail themselves of it, holders of a cantonal patent without registration are excluded from professional representation of parties even before cantonal courts (judgment 5A_461/2012 of 1 February 2013 E. 3.4; Nater, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 6a on Art. 3 BGFA). Admission under Art. 3 para. 2 BGFA is limited to the canton concerned; it does not establish inter-cantonal freedom of movement.
N. 9 Relationship to Art. 4 BGFA and the lawyers' monopoly. The lawyers' monopoly within the meaning of Art. 2 para. 1 BGFA applies to the professional representation of parties before judicial authorities. Art. 3 para. 2 BGFA is the federal-law reservation that permits cantons to extend this monopoly area to their own patent holders — with the effect that unregistered patent holders may exceptionally appear as representatives. Since the entry into force of the CrimPC and the CPC, the cantonal room for manoeuvre in criminal procedural law has narrowed to summary offence proceedings (Art. 127 para. 5 CrimPC; BGE 147 IV 379 E. 1.2.3–1.6). In civil matters, the professional representation of parties is governed by federal law under Art. 68 para. 2 CPC; Art. 3 para. 2 BGFA nonetheless permits cantons to admit patent holders without registration to professional representation before their own courts (judgment 5A_461/2012 E. 3.2).
#4. Legal Consequences
N. 10 A lawyer who is entered in the cantonal lawyers' register may, on the basis of Art. 4 BGFA, represent parties before judicial authorities throughout Switzerland without further authorisation; Art. 3 BGFA recedes into the background in this regard. The practical effect of Art. 3 BGFA lies in two constellations: (1) Lawyers without registration who rely on the cantonal patent may only appear before a court if the canton concerned has availed itself of Art. 3 para. 2 BGFA. (2) Cantons that, on the basis of Art. 3 para. 1 BGFA, establish requirements for the acquisition of the patent must observe the principle of proportionality and the BGBM.
N. 11 For candidates wishing to acquire the patent as a lawyer, Art. 3 para. 1 BGFA does not establish uniform examination requirements. There is no entitlement to inter-cantonal recognition of individual examination results. A person seeking a patent in a particular canton is subject exclusively to the requirements of that canton (BGE 131 I 467 E. 3.3). The assessment of performance in the context of the bar exam is largely shielded from judicial review insofar as the substantive evaluation of knowledge is concerned; questions of formal procedure are, however, justiciable (BGE 131 I 467 E. 2.7–2.9).
N. 12 If a canton violates the principle of proportionality in designing the training conditions for lawyers' trainees, this is to be assessed against the BGBM. In BGE 134 II 329 E. 6.2.3, the Federal Supreme Court declared a regulation of the Canton of Vaud to be contrary to federal law, under which a lawyer needed at least five years of practice in the Canton of Vaud in order to be permitted to train trainees; this requirement was disproportionate with respect to a lawyer with equivalent practice in another canton.
#5. Contentious Issues
N. 13 Relationship between the BGFA and the BGBM. The question of whether the BGFA as lex specialis entirely displaces the BGBM was largely undisputed before the 2005 revision of the BGBM. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 973) and Nater (in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 6b on Art. 3 BGFA) concur that the BGFA leaves the cantons very little room for manoeuvre with regard to the exercise of the profession and that the BGBM applies in the areas not conclusively regulated by the BGFA. The Federal Supreme Court confirmed this view in BGE 134 II 329 E. 5.3: in areas that the BGFA as a special act does not conclusively regulate, the LMI/BGBM applies in parallel with the BGFA. Cantonal restrictions on free market access must satisfy the conditions of Art. 3 BGBM.
N. 14 Scope of cantonal regulatory authority. It is disputed how far Art. 3 para. 1 BGFA extends cantonal competence. Nater (ibid., N. 3) advocates an interpretation that leaves cantons room to regulate the entire legal training process, provided that the federal minimum standards (Art. 7 BGFA) are respected. Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 824), by contrast, emphasises that the reservation in Art. 3 para. 2 BGFA for criminal procedural law was considerably curtailed following the entry into force of the CrimPC (2011); while cantons may permit non-lawyers to appear as representatives in summary offence proceedings, this requires a sufficiently clear statutory provision (BGE 147 IV 379 E. 1.6.3). Bohnet/Martenet (ibid., N. 975) cite 14 German-speaking cantons that had, prior to the CrimPC revision, restricted their monopoly area to professional representation.
N. 15 Cantonal lawyers' law after the BGFA. The cantons have responded differently to the federal requirements: Zurich expressly limits the lawyers' monopoly in summary offence proceedings to professional defence (§ 11 para. 3 AnwG/ZH), while St. Gallen provides for no corresponding exception and therefore proceeds on the basis that the monopoly applies in full (BGE 147 IV 379 E. 1.6.3 f.). Bern has refrained from admitting patent holders without registration (Art. 3 para. 2 BGFA) (judgment 5A_461/2012 E. 3.3). This federal diversity is in principle intended by the BGFA, but may lead to unexpected results for those seeking legal advice.
N. 16 Distinction between professional and personal requirements. According to the Dispatch and the Federal Supreme Court's case law, cantons may, on the basis of Art. 3 para. 1 BGFA, only determine the professional requirements for acquiring the patent; the personal requirements (Art. 8 BGFA) are conclusively regulated by the BGFA and may not be extended by cantonal law (Valloni/Steinegger, Bundesgesetz über die Freizügigkeit der Anwältinnen und Anwälte, 2002, p. 46; BGE 130 II 87 E. 5.1 in conjunction with E. 8.2). Art. 36 BGFA (transitional provision) may exempt from professional, but not from personal, requirements; personal deficiencies cannot therefore be remedied under transitional law (BGE 130 II 87 E. 8.2).
#6. Practical Notes
N. 17 Lawyers who are entered in a cantonal register are generally not required to furnish formal proof of their registration when appearing before a court in another canton. In case of doubt, the judicial authority may consult the register of the canton of origin (BBl 1999 6013, 6033). Lawyers without registration should, before appearing for the first time, verify whether the canton concerned has availed itself of the authorisation under Art. 3 para. 2 BGFA.
N. 18 When training trainees, lawyers must observe the cantonal requirements for admission as a supervising lawyer. Where a cantonal law requires a certain period of practice, this must comply with the proportionality requirement; a rigid requirement of exclusively cantonal practice is contrary to federal law (BGE 134 II 329 E. 6.2.3). Nater (in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 3 BGFA) recommends that the relationship to the BGBM always be taken into account when designing cantonal training regulations.
N. 19 In criminal proceedings, the lawyers' monopoly under Art. 127 para. 5 CrimPC has been the governing rule for defence since the entry into force of the CrimPC (2011); Art. 3 para. 2 BGFA is now only relevant in summary offence proceedings, provided the canton concerned has enacted a sufficiently clear exception rule (BGE 147 IV 379 E. 1.6.3). In civil matters, the right of audience is governed by Art. 68 CPC in conjunction with Art. 4 BGFA or Art. 3 para. 2 BGFA respectively; a submission signed by an unregistered lawyer in the absence of a cantonal exception rule is to be treated as defective (judgment 5A_461/2012 E. 3.4).
N. 20 For cantonal legislators revising lawyers' acts, an explicit regulation of the exceptions under Art. 3 para. 2 BGFA is advisable. The Federal Supreme Court has made clear that the absence of a sufficiently clear provision for non-professional defence in summary offence proceedings results in the general lawyers' monopoly applying (BGE 147 IV 379 E. 1.6.3, with reference to § 11 para. 3 AnwG/ZH as an example of a sufficiently clear cantonal provision).
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