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Art. 33 BGFA — Professional Title
#Doctrine
#1. Legislative History
N. 1 Art. 33 BGFA governs the professional title of those EU/EFTA lawyers who have been entered in the cantonal lawyers' register pursuant to Art. 30 BGFA. The provision forms the systematic conclusion of Section 5 («Permanent practice under the original professional title», Arts. 27–29 BGFA) and at the same time provides the transition to Section 6 («Entry in the cantonal lawyers' register», Arts. 30–34 BGFA).
N. 2 The Federal Council based the rule on the Agreement on the Free Movement of Persons of 21 June 1999 (AFMP; SR 0.142.112.681) and on the Establishment Directive 98/5/EC. Art. 10 of Directive 98/5/EC provides that a lawyer who has successfully integrated into the host state system acquires the right to use the professional title of the host state. The Message of 28 April 1999 explains that an EU/EFTA lawyer entered in the cantonal lawyers' register thereby acquires the same rights as the holder of a cantonal lawyers' licence and may accordingly use «the professional title customary in the canton of establishment» (BBl 1999 6069 para. 234.4). The Federal Council's draft was adopted by the Chambers without discussion (AB 1999 N 1551 ff., 1569; AB 1999 S 1173).
N. 3 Since BGFA entered into force on 1 June 2002, Art. 33 has remained unchanged. Any revision of the BGFA has so far produced no substantive changes to this provision.
#2. Systematic Classification
N. 4 Art. 33 BGFA stands at the end of the three-tier architecture of the EU/EFTA part of the Act. The BGFA distinguishes three forms of professional practice in Switzerland for EU/EFTA lawyers (cf. judgment 2A.536/2003 of 9 August 2004 E. 3.2; BGE 151 II 640 E. 4.2):
- Tier 1 (Freedom to provide services): Up to 90 working days per calendar year, no registration, original professional title pursuant to Art. 24 BGFA (→ Arts. 21–26 BGFA).
- Tier 2 (Permanent practice under the original title): Entry in the EU/EFTA lawyers' list (Art. 28 BGFA), continued use of the original professional title pursuant to Art. 24 in conjunction with Art. 27(2) BGFA (→ Arts. 27–29 BGFA).
- Tier 3 (Full integration): Entry in the cantonal lawyers' register pursuant to Art. 30 BGFA; entitlement to the locally customary professional title pursuant to Art. 33 BGFA (→ Arts. 30–34 BGFA).
N. 5 Art. 33 BGFA is the conceptual counterpart of the registration right under Art. 30 BGFA: whoever satisfies the enhanced requirements of Art. 30(1) BGFA (aptitude test pursuant to Art. 31 BGFA or three years of practice with evidence of activity in Swiss law pursuant to Art. 32 BGFA) and is entered in the register may also use the nationally customary professional title. ↔ Art. 30(2) BGFA: The assimilation is comprehensive — the same rights and obligations as the holder of a cantonal lawyers' licence. Art. 33 BGFA gives concrete expression to this principle with respect to the professional title.
N. 6 The provision implements Art. 10(1) of Directive 98/5/EC, according to which lawyers who satisfy the conditions for entry in the professional register of the host state are entitled to use the corresponding professional title of that state. Annex III of the AFMP expressly refers to that Directive (cf. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 169).
#3. Content of the Provision
N. 7 Art. 33 BGFA permits the EU/EFTA lawyer entered in the cantonal lawyers' register pursuant to Art. 30 BGFA to use «the professional title customary in the canton of establishment». The entitlement is linked to two cumulative conditions:
- Entry in the cantonal lawyers' register pursuant to Art. 30 BGFA;
- Non-withdrawal of that entry (inference a contrario from Art. 9 BGFA, which governs removal).
N. 8 Customary professional title: The expression «professional title customary in the canton of establishment» refers to the designation commonly used under cantonal law. In German-speaking cantons this is usually «Rechtsanwalt» or «Rechtsanwältin», in French-speaking Switzerland «avocat» or «avocate», and in Ticino «avvocato» or «avvocata». The choice of title is substantively limited: only the title actually customary in the canton of establishment is permissible (Kellerhals/Baumgartner, in: Nater/Zindel, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 on Art. 33 BGFA). The place of the business address within the meaning of Art. 6(1) BGFA is the relevant reference point.
N. 9 Relationship to the original professional title: Art. 33 BGFA confers a right to use the cantonal title; it confers no obligation and does not displace the original home-state designation. An Austrian lawyer entered pursuant to Art. 30 BGFA may alternatively use «Rechtsanwalt» (cantonal title) or «österreichischer Rechtsanwalt». However, misleading conduct must be avoided: a lawyer who is entered in the register must not give the outward impression of still using the title pursuant to Art. 24 BGFA without being registered (cf. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 906).
N. 10 Specialist lawyer titles: No Swiss specialist lawyer title may be used on the basis of Art. 33 BGFA alone. Specialist lawyer titles acquired pursuant to cantonal law or the SAV regulations require separate qualification requirements that cannot be derived from entry in the register pursuant to Art. 30 BGFA. The Obergericht Zürich has clarified that EU/EFTA lawyers may use Swiss specialist lawyer titles only if they have satisfied the relevant requirements (decision KG10008 of 26 August 2010 E. 4.3.3).
N. 11 Distinction from the rules applicable to service providers: EU/EFTA lawyers who are active solely within the framework of the free movement of services (Tier 1) are governed exclusively by Art. 24 BGFA: they must use their original professional title. Use of the cantonal title is prohibited for them; otherwise they could deceive the public as to their registration status (cf. judgment 2A.536/2003 of 9 August 2004 E. 4.2; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 196).
#4. Legal Consequences
N. 12 Entitlement: Art. 33 BGFA confers a formal right to use the cantonal professional title. This right exists alongside the right under Art. 30(2) BGFA to carry out all activities associated with entry in the register.
N. 13 Full assimilation: Art. 30(2) BGFA places EU/EFTA lawyers entered in the cantonal lawyers' register on an equal footing with holders of a cantonal lawyers' licence. Art. 33 BGFA is an expression of this assimilation at the level of the professional title. After entry, the EU/EFTA lawyer is fully subject to the professional rules of Art. 12 BGFA, the professional secrecy obligation under Art. 13 BGFA, and disciplinary supervision under Arts. 14 ff. BGFA (→ Arts. 12, 13, 14–17 BGFA).
N. 14 Loss of entitlement: The entitlement under Art. 33 BGFA lapses upon removal from the cantonal lawyers' register (→ Art. 9 BGFA). Continued unauthorised use of the cantonal professional title after removal may constitute a breach of professional rules and give rise to disciplinary consequences (Obergericht Zürich, decision KG080012 of 6 November 2008 E. II.5; KG090004 of 27 August 2009 E. III.1). The Federal Supreme Court has held that an inadmissible reference to an entry in the register violates Art. 12(a) and (d) BGFA.
N. 15 Criminal law: The unauthorised use of the cantonal professional title may in certain circumstances engage the offence relating to the lawyers' monopoly under Art. 29 BGFA (appearing without authorisation) or criminal provisions relating to deception. The Federal Supreme Court has recently clarified the limits of freedom to use professional titles in the area of the lawyers' monopoly (judgment 6B_780/2024 of 26 March 2025).
#5. Contested Issues
N. 16 Professional title in cases of multiple registration: Legal scholarship is divided on whether an EU/EFTA lawyer who is entered in the EU/EFTA lawyers' list (Art. 28 BGFA) in several cantons but has completed the cantonal register procedure pursuant to Art. 30 BGFA in only one canton may use exclusively the title of the canton of entry pursuant to Art. 30 BGFA. Bohnet/Martenet (Droit de la profession d'avocat, 2009, para. 906) answer in the affirmative, having regard to the territorial connection of the title. Kellerhals/Baumgartner (Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 on Art. 33 BGFA) concur with this narrow interpretation: the decisive factor is the canton of the business address pursuant to Art. 6(1) BGFA.
N. 17 Obligation or right to use the cantonal title: On the basis of the wording «may» («dürfen») in Art. 33 BGFA, the provision is clearly to be characterised as an entitlement, not an obligation. Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 196) confirms this interpretive result: an entered EU/EFTA lawyer may — but need not — use the cantonal title. He may continue to use his original home-state designation, provided that in doing so he does not mislead the public as to his current registration status. This teleological limitation follows from the transparency requirement and the professional rules under Art. 12(a) BGFA.
N. 18 Relationship to Art. 24 BGFA: It remains an open question whether a lawyer entered pursuant to Art. 30 BGFA may, alongside the cantonal title, continue to add elements of his original professional title (e.g. the name of the foreign professional organisation). Bohnet/Martenet (op. cit., para. 906) answer in the affirmative as regards this freedom of choice, as long as it does not deceive the public as to registration status. The opposing view — that after full integration only the cantonal title may be used — can be supported by Art. 30(2) BGFA (full assimilation), but is not convincing, since the Act in Art. 33 BGFA merely confers a right on the lawyer.
N. 19 Transitional period between the EU/EFTA list and entry in the register: For the period during which a lawyer is entered in the EU/EFTA lawyers' list but is not yet registered in the cantonal lawyers' register, Art. 24 in conjunction with Art. 27(2) BGFA applies: the original professional title must be used. The three-year minimum period pursuant to Art. 30(1)(b) BGFA is a waiting phase that, according to BGE 151 II 640 E. 5.4.2, has an independent purpose (verification of effective activity in Swiss law). The right to use a professional title under Art. 33 BGFA arises only upon formal entry pursuant to Art. 30 BGFA, and not already upon expiry of the three-year period.
#6. Practical Notes
N. 20 Carefully verify the conditions for entry: Art. 33 BGFA takes effect only after the procedure under Arts. 30–32 BGFA has been fully completed. EU/EFTA lawyers who are only entered in the EU/EFTA lawyers' list pursuant to Art. 28 BGFA may not yet use the cantonal title. Premature use may trigger a disciplinary measure under Art. 17 BGFA.
N. 21 Cantonal particularities: The «customary» professional title must be ascertained at cantonal level. In multilingual cantons the question may arise as to which language version is authoritative. The official language of the canton at the place of the business address (Art. 6(1) BGFA) is determinative.
N. 22 Letterhead and marketing materials: The cantonal professional title should be used on letterhead and marketing materials only after formal entry pursuant to Art. 30 BGFA. Where a lawyer practises simultaneously in several countries, it is advisable to indicate the Swiss entry separately (e.g. «Rechtsanwalt [entered in the lawyers' register of the Canton of X]»), in order to ensure transparency vis-à-vis clients and authorities.
N. 23 Observe the three-tier sequence: The sequence is prescribed by statute: (1) practice within the free movement of services (Arts. 21–26 BGFA) → (2) entry in the EU/EFTA lawyers' list (Arts. 27–29 BGFA) → (3) entry in the cantonal lawyers' register (Arts. 30–34 BGFA) and entitlement to the cantonal title (Art. 33 BGFA). The Federal Supreme Court clarified in BGE 151 II 640 E. 5.7 that the conditions for entry in the EU/EFTA lawyers' list are to be understood as a low threshold and do not require a prior focus of economic activity in Switzerland; this case law also shapes the interpretation of the preliminary stage to Art. 33 BGFA.
N. 24 Aliens law independent: The residence status of the EU/EFTA lawyer is to be assessed independently of the law governing lawyers (BGE 151 II 640 E. 6.3). Entry in the cantonal lawyers' register pursuant to Art. 30 BGFA and the associated entitlement under Art. 33 BGFA do not depend on a specific residence permit. Permit requirements under aliens law must, however, continue to be observed separately.
#Literature (Selected)
- Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 906
- Fellmann, Anwaltsrecht, 2nd ed. 2017, paras. 176 ff., 196
- Kellerhals/Baumgartner, in: Nater/Zindel, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 on Art. 33 BGFA
- Chappuis/Châtelain, in: Commentaire romand, Loi sur les avocats, 2nd ed. 2022, N. 4 on Art. 28 BGFA
- Ehle/Seckler, Die Freizügigkeit europäischer Anwälte in der Schweiz, Anwaltsrevue 6-7/2005, p. 269 ff.
#Materials
- BBl 1999 6013 (Message on the Lawyers Act)
- BBl 1999 6069 (Commentary on Art. 33 BGFA)
- AB 1999 N 1551 ff., 1569; AB 1999 S 1173 (Parliamentary deliberations)
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