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Art. 6 BGFA — Entry in the Register
#Doctrine
#1. Legislative History
N. 1 Art. 6 BGFA originates from the Federal Council's dispatch draft of 28 April 1999 (BBl 1999 6013, 6035 ff.). The Act entered into force on 1 June 2002. The dispatch conceived of registration as the central instrument of intercantonal freedom of movement: any person entered in the register of a canton may represent parties before judicial authorities throughout Switzerland without any further authorisation (→ Art. 4 BGFA). The register thereby replaces the former system of cantonal authorisations for lawyers practising outside their home canton.
N. 2 The starting point for the legislative work was the case-law of the Federal Supreme Court on Art. 196 no. 5 FC in conjunction with Art. 95 FC. In BGE 111 Ia 108 the Federal Supreme Court had established the bar examination as the minimum standard for intercantonal recognition, without specifying a minimum duration for studies and practical training. The BGFA was intended to codify this framework (BBl 1999 6013, 6035).
N. 3 In the consultation draft the Federal Council had still envisaged that lawyers with several business addresses would have to register in each of the cantons concerned. In the dispatch it moved away from that position and expressly proceeded on the basis of a single entry: any person maintaining more than one office need only register in the canton in which the principal office is situated (BBl 1999 6013, 6046). The Federal Assembly approved this concept without reservation (AB 1999 N 1553; AB 1999 S 1164).
N. 4 The parliamentary deliberations on Art. 6 BGFA proceeded in several stages and were contentious. The National Council adopted a version deviating from the draft on 1 September 1999; the Council of States followed on 20 December 1999. After further proceedings to eliminate divergences — National Council on 7 March 2000, Council of States on 16 March 2000 (referral back to the committee), Council of States on 5 June 2000, National Council on 14 June 2000, Council of States on 20 June 2000 (approval) — both Chambers adopted the Act in the final vote on 23 June 2000. The central point of controversy was the independence requirement (→ Art. 8 para. 1 let. d BGFA) as a condition for registration, not the procedure under Art. 6 as such.
#2. Systematic Classification
N. 5 Art. 6 BGFA is situated in the first section of the Act («Freedom of Movement and Register», Art. 1–11) and forms the procedural counterpart to the substantive conditions for registration set out in Art. 7 (professional requirements) and Art. 8 (personal requirements). Art. 6 governs the «how» of registration, while those articles govern the «what».
N. 6 The systematic structure of the register regime may be summarised as follows: Art. 4 BGFA contains the freedom-of-movement effect (legal consequence of registration); Art. 5 BGFA obliges the cantons to maintain the register; Art. 6 BGFA governs the obligation and procedure for registration; Art. 7 and 8 BGFA set out the substantive requirements; Art. 9 BGFA governs deregistration (↔ Art. 6 BGFA as the mirror image); Art. 11 BGFA regulates the professional title. The register is thus both the gateway to intercantonal freedom of movement and the ongoing point of reference for disciplinary supervision (→ Art. 16 BGFA).
N. 7 Delimitation from cantonal law: Art. 3 para. 1 BGFA preserves the right of the cantons to determine the requirements for obtaining the cantonal law licence. The requirements for registration, however — in particular Art. 7 and Art. 8 BGFA — are governed exhaustively by federal law (cf. BGE 130 II 270 cons. 1.1 and 3.1.1; judgment 2C_897/2015 of 25 May 2016 cons. 5.3). Cantonal law may neither restrict nor expand the conditions for registration. The reservation in Art. 3 para. 2 BGFA enables the cantons solely to permit holders of a law licence issued by them to appear before their own judicial authorities without being entered in the register.
#3. Elements of the Provision / Normative Content
3.1 Obligation to Register (para. 1)
N. 8 Pursuant to Art. 6 para. 1 BGFA, lawyers who hold a cantonal law licence and wish to represent parties before judicial authorities shall have themselves entered in the register of the canton in which their business address is located. The provision combines two constituent requirements: (i) possession of a cantonal law licence and (ii) the intention to represent parties before judicial authorities. Lawyers engaged exclusively in advisory work without any intention of conducting litigation are not obliged to register and are not, as a matter of federal law, subject to the disciplinary supervision provided for in Art. 14 ff. BGFA (judgment 2C_897/2015 cons. 5.2.1).
N. 9 Law licence: The cantonal law licence is issued by the cantons. Pursuant to Art. 7 para. 1 BGFA, such a licence may only be issued on the basis of the following minimum professional requirements: (a) a law degree completed with a licence or master's degree from a Swiss university or an equivalent university degree from a state that has concluded a mutual recognition agreement with Switzerland; (b) a practical traineeship in Switzerland of at least one year, completed with an examination in theoretical and practical legal knowledge. The minimum duration of three years of university study corresponds to the standard of Directive 89/48/EEC (BBl 1999 6013, 6036). Cantons may impose stricter requirements for their own law licence (→ Art. 3 para. 1 BGFA).
N. 10 Business address as the connecting factor: The register competence is determined by the business address. Each lawyer may be entered in only one cantonal register. Simultaneous entries in several cantonal registers are excluded (BGE 131 II 639 cons. 3.3 ff.). If a lawyer has several business addresses in different cantons, he or she must register in the canton in which the principal activity is carried out (BGE 131 II 639 cons. 3.5). This principle follows from a historical (BBl 1999 6013, 6046) and teleological interpretation: multiple registrations would unnecessarily complicate disciplinary supervision, since Art. 16 BGFA is oriented towards a single supervisory authority «principally competent» (BGE 131 II 639 cons. 3.4.2).
3.2 Registration Procedure (paras. 2 and 3)
N. 11 The supervisory authority shall enter the lawyer in the register once it has established that the requirements of Art. 7 and Art. 8 BGFA are met (Art. 6 para. 2 BGFA). This constitutes a bound decision: if the statutory requirements are met, there is a right to registration; if they are not, registration must be refused. The supervisory authority has no discretion (Staehelin/Oetiker, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, n. 18 on Art. 6 BGFA). The lawyer is required to attach all necessary certificates to the application (→ Art. 5 para. 1 let. c BGFA) and to indicate a business address (→ Art. 5 para. 1 let. d BGFA).
N. 12 Pursuant to Art. 6 para. 3 BGFA, the entry must be published in an official cantonal publication organ. This transparency obligation serves to inform those engaged in legal dealings and forms the basis for the interoperability of the cantonal registers.
3.3 Right of Appeal of the Bar Association (para. 4)
N. 13 Art. 6 para. 4 BGFA grants the bar association of the canton concerned the right to appeal against entries in the cantonal register. The Federal Supreme Court confirmed this power at an early stage and recognised the cantonal bar association as having standing to lodge an administrative law appeal (today: appeal in matters of public law) against final cantonal decisions concerning registration (BGE 130 II 87 cons. 1). This right of appeal is autonomous and independent of any specific material interest of the association; it serves to ensure a uniform quality standard within the legal profession.
#4. Legal Consequences
N. 14 Freedom-of-movement effect: Entry in the cantonal lawyers' register confers freedom of movement throughout Switzerland: the registered lawyer may represent parties before judicial authorities throughout Switzerland without any further authorisation (→ Art. 4 BGFA). This effect is guaranteed by federal law and cannot be restricted by individual cantons.
N. 15 Submission to supervision: Upon registration, the lawyer submits to the supervision of the cantonal supervisory authority of the canton of registration (→ Art. 14 BGFA). That authority is responsible for ongoing supervision and disciplinary proceedings. If the lawyer exercises his or her activity in another canton, that canton's supervisory authority must inform and consult the authority of the canton of registration (→ Art. 16 BGFA). The principle of a single register entry thus ensures a clear allocation of supervisory jurisdiction (BGE 131 II 639 cons. 3.4.1–3.4.2).
N. 16 Deregistration: If a lawyer no longer fulfils one of the requirements for registration, he or she shall be removed from the register (→ Art. 9 BGFA). Deregistration extinguishes the freedom-of-movement effect but does not affect the cantonal law licence as such, to the extent that it is characterised as an independent declaratory decision of the cantons. The relationship between possession of a law licence and registration has since been the subject of a separate controversy (→ N. 22 ff. below).
N. 17 Exhaustiveness of federal law: The conditions for registration and the associated administrative measures (refusal of registration, deregistration) are governed exhaustively by federal law (Staehelin/Oetiker, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, n. 18 on Art. 6 BGFA; confirmed in judgment 2C_897/2015 cons. 5.3 with reference to BGE 130 II 270 cons. 1.1 and 3.1.1). Cantonal provisions that provide for additional conditions for or impediments to registration are incompatible with federal law.
#5. Controversial Issues
5.1 Single Registration vs. Multiple Registration
N. 18 Whether the BGFA mandates a single register entry or also permits multiple entries was disputed following the entry into force of the Act. Staehelin/Oetiker argued at an early stage that multiple entries were excluded (Staehelin/Oetiker, in: Kommentar zum Anwaltsgesetz, 1st ed. 2005, n. 12 on Art. 6 BGFA). The Federal Supreme Court explicitly followed this view in BGE 131 II 639 cons. 3.5 and confirmed the single-entry rule as binding federal law. This controversy has thus been resolved by case-law.
5.2 Personal Requirements and the Cantonal Law Licence
N. 19 It is disputed whether cantons may make the acquisition of the cantonal law licence (not merely registration) subject to personal requirements as well. Fellmann takes the view that this is permissible: since the BGFA largely leaves the requirements for the law licence to the cantons, they may, in addition to professional requirements (Art. 7 BGFA), also impose personal requirements (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 684 f.). Bohnet/Martenet agree (Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 576 ff.). The Federal Supreme Court endorsed this view in judgment 2C_897/2015 cons. 6.2.1 and in BGE 134 II 329 cons. 5.1.
N. 20 Kettiger objects that the legislative materials on Art. 3 para. 1 BGFA show that the federal legislature was concerned only with cantonal competence in the area of professional requirements; personal requirements for the law licence find no support in the BGFA (Kettiger, Entzug des Anwaltspatents, Jusletter 28 September 2009, p. 4 f.). The Federal Supreme Court rejected this minority view in judgment 2C_897/2015 cons. 6.2.3, reasoning that the tradition of cantonal licence requirements had never been purely professional in character.
5.3 Extension of Professional Rules to Lawyers Not Engaged in Litigation
N. 21 Whether cantonal legislation may subject lawyers who waive registration to the professional rules under Art. 12 ff. BGFA nonetheless is disputed. Nater answers in the negative: the BGFA covers only those lawyers who register and practise within the scope of the lawyers' monopoly (Nater, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, n. 8b on Art. 3 BGFA). Lawyers engaged exclusively in advisory work may be subject to separate rules under cantonal lawyers' law if that law expressly so provides — this corresponds to the systematic structure of Art. 3 para. 2 BGFA. The Federal Supreme Court shared this assessment in judgment 2C_897/2015 cons. 5.2.2, without taking a conclusive position on the constitutionality of such an extension.
5.4 Legal Nature of the Law Licence: Authorisation or Declaratory Decision
N. 22 The legal nature of the cantonal law licence is contested. The traditional view characterises the licence as a cantonal police permit (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 672 with references). The Federal Supreme Court had adopted this characterisation in earlier judgments (judgment 2P.159/2005 cons. 3.2). In judgment 2C_897/2015 cons. 7.2.2 the Federal Supreme Court revised this classification with respect to the Lucerne licence: since the licence entitles its holder neither under federal law nor under Lucerne law directly to represent parties — that effect arises only through registration — it is a declaratory decision, not an authorisation. This distinction has practical consequences for the question of revocation of the law licence (→ N. 16 above).
#6. Practical Notes
N. 23 Determining the canton of registration with multiple offices: For lawyers with offices in several cantons, the canton of registration is the one in which the principal activity is carried out. If the canton in which the principal activity is centred changes, the lawyer is required to have himself or herself removed from the existing register and to register in the new one (BGE 131 II 639 cons. 3.5). Voluntary multiple entries «for advertising purposes» are not permissible.
N. 24 Documentary obligations upon registration: For the assessment of the requirements under Art. 7 and 8 BGFA, the lawyer must submit all required certificates. For employed lawyers within the meaning of Art. 8 para. 1 let. d BGFA, complete information on the employment relationship is mandatory, including a suitably drafted contract of employment evidencing the independence of the lawyering activity (BGE 130 II 87 cons. 6). The Federal Supreme Court imposes strict requirements regarding the establishment of «clear circumstances».
N. 25 Procedure and legal remedies: Against entries in the cantonal register, both the lawyer concerned and the bar association of the canton in question may lodge an appeal pursuant to Art. 6 para. 4 BGFA. Against refusal of registration or deregistration, the lawyer has access to the ordinary administrative law remedies; at final instance, an appeal in matters of public law to the Federal Supreme Court is admissible (Art. 82 let. a BGG), since federal administrative law is at issue (BGE 130 II 87 cons. 1; BGE 131 II 639 cons. 2.1).
N. 26 Professional title after registration: Following registration, the lawyer is required to indicate his or her entry in the cantonal register in the course of business dealings (→ Art. 11 para. 2 BGFA). The lawyer uses the professional title of his or her law licence or an equivalent designation of the canton of registration (→ Art. 11 para. 1 BGFA). Use of the title «Rechtsanwalt» without registration may have consequences under unfair competition law (Art. 3 para. 1 let. c UCA; cf. judgment 2C_897/2015 cons. 7.3).
N. 27 Transitional law (Art. 36 BGFA): Art. 36 BGFA enables registration on the basis of a law licence obtained before the entry into force of the BGFA, provided that the lawyer would have been entitled to a licence to practise in other cantons pursuant to Art. 196 no. 5 FC. The transitional provision exempts only from the professional requirements (Art. 7 BGFA), not from the personal requirements (Art. 8 BGFA). Accordingly, a lack of independence cannot be remedied under the transitional law (BGE 130 II 87 cons. 8).
#Cross-References
- ↔ Art. 9 BGFA: Deregistration as the mirror image of registration
- → Art. 4 BGFA: Freedom-of-movement effect of registration
- → Art. 5 BGFA: Obligation of the cantons to maintain the register; content of the register
- → Art. 7 BGFA: Professional requirements (university studies, practical traineeship, examination)
- → Art. 8 BGFA: Personal requirements (capacity to act, good repute, no debt enforcement certificates, independence)
- → Art. 11 BGFA: Professional title and obligation to indicate the register entry
- → Art. 16 BGFA: Coordination between supervisory authorities in the case of intercantonal activity
- → Art. 36 BGFA: Transitional law for licences obtained before entry into force
- → Art. 3 BGFA: Reservation of cantonal law; delimitation of federal law from cantonal law
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