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Art. 5 BGFA — Cantonal Lawyers' Register
#Doctrine
#1. Legislative History
N. 1 Art. 5 BGFA has its origins in decades of debate over the intercantonal harmonisation of the law governing the legal profession. As early as the beginning of the twentieth century, the creation of a federal lawyers' licence had been sought; the project repeatedly failed due to Switzerland's federalist structure (judgment 2C_897/2015 of 25.5.2016, consid. 8, referring to BBl 1999 6013 6019). When enacting the BGFA, the Federal Council decided not to make the licence, but rather the cantonal register, the pivot of the intercantonal freedom of movement: registration in a single cantonal register opens access to the market throughout Switzerland (→ Art. 4 BGFA).
N. 2 In a draft put out for consultation, the Federal Council had initially provided that lawyers must register in all cantons in which they have a business address. In the dispatch it expressly departed from this concept: the decisive factor is solely the canton of the principal business address (BBl 1999 6013 6046). The shift to the single-canton model was justified on the ground that the unification of professional rules at federal level (→ Art. 12 BGFA) and the nationwide effect of the prohibition on professional practice (→ Art. 17 BGFA) require a clear attribution of disciplinary supervision to a single supervisory authority. Lawyers who forgo registration thereby also lose the possibility of intercantonal freedom of movement — a deliberate sanction effect that the legislator expressly designed as an incentive to register (BBl 1999 6013 6034).
N. 3 The parliamentary deliberations were contentious, particularly regarding the personal requirements for registration and the question of lawyers' independence (→ Art. 8 BGFA). The National Council and the Council of States approved the draft as regards the register structure in Art. 5 in principle, without calling into question the single-canton concept (AB 1999 N 1553; AB 1999 S 1164). The Act was adopted by both Chambers in the final vote on 23 June 2000 and entered into force on 1 June 2002.
#2. Systematic Classification
N. 4 Art. 5 BGFA, together with Art. 4 and Art. 6–9 BGFA, forms the institutional core of the freedom-of-movement system. The provisions are functionally coordinated: Art. 4 BGFA confers the substantive effect of registration (nationwide authority to represent parties); Art. 5 BGFA governs the duty to maintain the register and its content; Art. 6 BGFA governs the registration procedure; Art. 9 BGFA governs deletion. Art. 5 is thus the foundational provision for the administrative infrastructure of lawyers' freedom of movement.
N. 5 Registration is required exclusively for the monopoly activity — the professional representation of parties before judicial authorities — (Art. 2 para. 1 BGFA). Lawyers engaged solely in an advisory capacity are subject neither to the duty to register nor to the disciplinary supervision of the BGFA (BGE 130 II 87 consid. 3 p. 91 f.). The BGFA exhaustively governs the requirements for registration and the related administrative measures (BGE 130 II 270 consid. 1.1 and consid. 3.1.1; judgment 2C_897/2015 of 25.5.2016, consid. 5.3).
N. 6 ↔ Art. 3 BGFA: The relationship between the register under federal law and the cantonal lawyers' licence is complex. Federal law exhaustively governs the conditions for registration and the operation of the register; the cantons retain the competence to determine the licence requirements «within the framework of this Act» (Art. 3 para. 1 BGFA). Art. 3 para. 2 BGFA also permits cantons to allow holders of their cantonal licence to appear before their own judicial authorities without being registered. Cantons may thus exempt registration for purely cantonal activity — the Canton of Lucerne has expressly refrained from making use of this option (judgment 2C_897/2015 of 25.5.2016, consid. 7.2.2).
#3. Elements of the Provision / Normative Content
3.1 Duty to Maintain the Register and Subject Matter (Art. 5 para. 1 BGFA)
N. 7 Every canton is obliged to maintain a lawyers' register. The register records all lawyers who have a business address within the cantonal territory and who satisfy the professional and personal requirements under Art. 7 and 8 BGFA. It is a public register maintained by the cantonal supervisory authority (Art. 5 para. 3 BGFA). The register is not a discretionary instrument: where the requirements are met, there is a legal entitlement to registration (→ Art. 6 para. 2 BGFA).
N. 8 Principle of the single-canton system: Lawyers may register in only one cantonal register. Simultaneous registration in several cantons is excluded. A lawyer who has more than one business address must register in the canton in which he or she predominantly practises (BGE 131 II 639 consid. 3.3 and 3.5, referring to BBl 1999 6046). The Federal Supreme Court grounded this in historical-teleological terms: multiple registrations would give rise to conflicts of jurisdiction in disciplinary proceedings and would undermine the clear attribution, sought by Art. 16 BGFA, to a single supervisory authority «principally competent» (BGE 131 II 639 consid. 3.4.1 and 3.4.2). Staehlin/Oetiker had already advocated this interpretation before the Federal Supreme Court's decision (Staehlin/Oetiker, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, N. 12 on Art. 6 BGFA).
3.2 Content of the Register (Art. 5 para. 2 BGFA)
N. 9 The register must contain the following information: (a) the surname and given names of the registered lawyer; (b) the date of registration; (c) a certificate that the personal requirements under Art. 8 BGFA are satisfied; (d) the business address; (e) disciplinary measures under Art. 17 para. 1 lit. b–e BGFA that have not been deleted. This information is limited to what is necessary; the Act does not provide for any more extensive catalogue of data.
N. 10 The recording of disciplinary measures under Art. 5 para. 2 lit. e BGFA serves the purpose of transparency towards persons seeking legal assistance and towards the other cantonal supervisory authorities. Out-of-canton supervisory authorities must obtain information before initiating proceedings (→ Art. 16 BGFA). According to the express wording of Art. 5 para. 2 lit. e, the register contains only non-deleted measures; deleted measures may in principle no longer be taken into account when determining sanctions (BGE 150 II 308 consid. 4, clarifying the previous practice).
N. 11 The requirement of a business address (Art. 5 para. 2 lit. d BGFA) is not merely formal in nature. The Federal Supreme Court has clarified in several decisions that the business address is functionally linked to the duty of independence and professional secrecy: it must allow the lawyer to practise independently and in compliance with professional secrecy, and it must be accessible to clients and authorities (BGE 145 II 229 consid. 8.1, referring to Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 649 and Staehlin/Oetiker, op. cit., N. 14 on Art. 5 BGFA). A mere post office box address or a «c/o» address does not satisfy the requirements.
N. 12 The address must be physically accessible and must enable the lawyer to receive clients and store files. The use of modern working arrangements (home office, co-working) is not excluded in principle, but is subject to a case-by-case assessment. The Federal Supreme Court clarified in BGE 145 II 229 consid. 8.3 that the requirement of a physical location persists even in the digital age, as personal contact with clients and compliance with professional secrecy continue to require appropriate physical infrastructure. In particular, the premises must be separate from those of the employer where the lawyer is employed (BGE 130 II 87 consid. 6.3.2 p. 106 f.).
N. 13 Only natural persons may be entered in the cantonal lawyers' register. Companies, associations or other legal entities are excluded from registration as such (judgment 5A_179/2009 of 29.5.2009, consid. 2.1, referring to Staehlin/Oetiker, op. cit., N. 8 on Art. 5 BGFA). → Art. 40 para. 1 BGG likewise requires registration under the BGFA for representation of parties before the Federal Supreme Court.
3.3 Maintenance of the Register (Art. 5 para. 3 BGFA)
N. 14 The register is maintained by the cantonal supervisory authority for lawyers (Art. 5 para. 3 in conjunction with Art. 14 BGFA). Each canton designates such an authority. The supervisory authority examines both the conditions for registration (→ Art. 6 para. 2 BGFA) and the grounds for deletion (→ Art. 9 BGFA). It bears primary responsibility for supervising the lawyers registered with it; all relevant information is centralised with it (judgment 5A_175/2008 of 8.7.2008, consid. 5.1).
#4. Legal Consequences
N. 15 Registration under Art. 5 BGFA is the prerequisite for the nationwide authority to represent parties under Art. 4 BGFA. Upon registration, the lawyer acquires the right to appear in all cantons without any additional authorisation. Registration thereby has constitutive effect for intercantonal freedom of movement.
N. 16 Refusal of registration: Where the requirements under Art. 7 and 8 BGFA are not met, the supervisory authority is obliged to refuse registration. The refusal takes the form of a contestable ruling (BBl 1999 6013 6034); an administrative law appeal may be lodged against it. The cantonal bar association also has standing to appeal against registrations (BGE 130 II 87 consid. 1 p. 90).
N. 17 Deletion from the register: If the conditions for registration cease to be met after registration, the supervisory authority is obliged to delete the entry (→ Art. 9 BGFA). Deletion is an administrative measure, not a disciplinary measure; it is triggered by the cessation of the conditions for registration, not by a breach of professional duties (judgment 2C_897/2015 of 25.5.2016, consid. 5.2). It takes effect retroactively from the moment the ground for deletion arose.
N. 18 Duty to notify: Under Art. 12 lit. j BGFA, lawyers are obliged to notify the supervisory authority of all changes relevant to their registration. These include changes of business address, employment situation, or personal requirements. Breaches of this duty to notify may be subject to disciplinary sanctions (Administrative Court of Zurich, VB.2014.00538 of 30.8.2013).
#5. Contested Issues
5.1 Business Address: Minimum Requirements and New Forms of Working
N. 19 The minimum requirements for the business address in light of new forms of working are contested. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 649 and N. 1169) require a physically accessible premises at the business address from which the lawyer can practise independently and in compliance with professional secrecy; a mere virtual address does not suffice. Staehlin/Oetiker (BSK BGFA, N. 14 on Art. 5 BGFA) align themselves with this view. Gurtner (Les études d'avocats virtuelles aux Etats-Unis et en Suisse, RDS 2014 I 322, pp. 335 and 341) advocates a more flexible interpretation that takes account of new technologies, but likewise maintains the requirement of a physical location.
N. 20 The Federal Supreme Court confirmed the minimum requirement of a physical location in BGE 145 II 229 consid. 8.3, while emphasising that «trop strictes» rules must not be imposed. The assessment is conducted on a case-by-case basis: the decisive question is whether the chosen structure enables independent professional practice and compliance with professional secrecy. In the case decided, domiciling with a lawyers' platform company was impermissible due to unreasonable contractual general terms and conditions (unilateral exclusions of liability, immediate right of termination) and inadequate safeguards for professional secrecy (sub-delegation to third parties) — not as a matter of principle, but on account of the specific contractual arrangements.
5.2 Single-Canton Model: Delimitation Where There Are Multiple Offices
N. 21 The obligation to register in all cantons with a business address, which was provided for in the consultation draft, was deliberately abandoned (BBl 1999 6013 6046). It remained contested whether the single-canton model also excluded a right to multiple registrations. The Federal Supreme Court decided in BGE 131 II 639 consid. 3.3–3.5 with clear historical-teleological reasoning: multiple registration is excluded. Staehlin/Oetiker had already advocated this position previously; it is today uncontested. Where there are multiple offices, the centre of gravity of the activity is decisive, not the formal domicile or the lawyer's preference.
5.3 Cantonal Revocation of the Licence in Relation to Art. 5 and 9 BGFA
N. 22 It is contested whether cantons may revoke the cantonal lawyers' licence where grounds for deletion under Art. 8/9 BGFA exist (in particular, certificates of unpaid debts). Kettiger (Entzug des Anwaltspatents, Jusletter 28.9.2009, pp. 4 f.) answers in the negative on systematic grounds: the BGFA links the concept of the licence only to professional requirements (Art. 7 BGFA), not to personal ones (Art. 8 BGFA); revocation of the licence on personal grounds is incompatible with the federal legislator's qualified silence. The prevailing view, represented inter alia by Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 686), Bohnet/Martenet (op. cit., N. 576 ff.) and Brunner/Henn/Kriesi (Anwaltsrecht, 2015, p. 12), affirms cantonal competence: Art. 3 para. 1 BGFA leaves to the cantons the determination of the licence requirements «within the framework of this Act» — which traditionally includes the integrity of the applicant. The Federal Supreme Court confirmed the prevailing doctrine in judgment 2C_897/2015 of 25.5.2016, consid. 6.2.3: revocation of the licence upon the cessation of personal requirements is permissible, but subject to the principle of proportionality.
5.4 Official Mandate and Place of Registration (Art. 12 lit. g BGFA)
N. 23 Art. 12 lit. g BGFA obliges lawyers in the canton of their registration to accept official mandates. The Council of States had drawn attention in the parliamentary deliberations to the close connection between the duty to register and the duty to accept official mandates (AB 1999 S 1164). The Federal Supreme Court has confirmed that this connection permits cantonal law to restrict legal aid to lawyers registered in the same canton, because only they are subject to the mirror-image duty to accept official mandates and the supervisory authority holds all the relevant information (judgment 5A_175/2008 of 8.7.2008, consid. 5.1). A restriction of court-appointed representation to cantonal lawyers does not violate the freedom of economic activity under Art. 27 FC, since court-appointed representation constitutes a public function falling outside the scope of protection of that provision.
#6. Practical Notes
N. 24 Choice of canton of registration: Lawyers with several offices must determine the canton in which their principal activity is situated. Objective criteria are decisive (number of mandates, working time, turnover), not formal elements such as domicile or the place where the firm was established (BGE 131 II 639 consid. 3.5). If the centre of gravity shifts, registration must be transferred to the new canton of activity; the cantons must coordinate with each other (→ Art. 16 BGFA).
N. 25 Business address in shared office structures: Modern firm arrangements — co-working spaces, lawyers' platforms, serviced offices — are not impermissible in principle, but require careful contractual arrangements. The contractual terms must ensure that the lawyer (i) remains structurally independent (no unilateral rights of termination, no excessive exclusions of liability by the service provider), (ii) can comply with professional secrecy (no uncontrolled sub-delegation of tasks subject to confidentiality), and (iii) does not create misleading impressions about the practice of the profession (BGE 145 II 229 consid. 6.5, 7.5, 8.3). The supervisory authority assesses the specific contractual arrangements, not the legal form used.
N. 26 Application for registration where there is an employment relationship: Employed lawyers whose employer is not itself registered must demonstrate institutional independence in their application for registration. This requires in particular: (i) an employment contract that clearly delimits the independent legal activity, (ii) information about the employment relationship, (iii) separate premises that are distinct from those of the employer, and (iv) measures to preserve professional secrecy vis-à-vis the employer (BGE 130 II 87 consid. 6.1–6.3). A lawyer who does not provide this information cannot claim to be registered; the supervisory authority may refuse registration.
N. 27 Disciplinary measures in the register: Only final, non-deleted measures under Art. 17 para. 1 lit. b–e BGFA are to be recorded in the register. Already deleted measures may in principle not be taken into account as an aggravating factor in subsequent sanctioning proceedings (BGE 150 II 308 consid. 4). The supervisory authority of the canton of registration must also be informed under Art. 16 BGFA of disciplinary proceedings in other cantons; it remains the central information hub.
N. 28 Transitional law (Art. 36 BGFA): Lawyers who rely on Art. 36 BGFA (transitional provision on professional requirements) may thereby only circumvent the professional, but not the personal, requirements under Art. 8 BGFA (BGE 130 II 87 consid. 8.2 p. 109 f.). A lawyer who does not satisfy the personal conditions for registration — in particular the duty of independence for employed lawyers — cannot claim registration on the basis of the transitional provision.
#Cross-references
- → Art. 4 BGFA (substantive effect of registration)
- → Art. 6 BGFA (registration procedure and conditions)
- → Art. 7 BGFA (professional requirements)
- → Art. 8 BGFA (personal requirements, in particular independence)
- → Art. 9 BGFA (deletion from the register)
- ↔ Art. 12 BGFA (professional rules, in particular lit. g duty to accept official mandates and lit. j duty to notify)
- → Art. 13 BGFA (professional secrecy as the standard for the business address)
- → Art. 14 BGFA (cantonal supervisory authority as the body maintaining the register)
- → Art. 16 BGFA (intercantonal coordination of disciplinary supervision)
- → Art. 17 BGFA (disciplinary measures to be recorded)
- → Art. 36 BGFA (transitional law, professional requirements only)
- → Art. 3 BGFA (reservation of cantonal law and autonomy in respect of the licence)
- → Art. 40 para. 1 BGG (lawyers' monopoly before the Federal Supreme Court)
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