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Art. 8 BGFA — Personal Requirements
#Doctrine
#1. Legislative History
N. 1 The personal requirements for registration were conceived in the Federal Council's Dispatch of 28 April 1999 (BBl 1999 6013, 6039 ff.) as indispensable minimum standards that must apply uniformly in all cantons. The Federal Council thereby sought to underpin the relationship of trust between lawyer and client in federal law, and to establish a uniform framework for inter-cantonal freedom of movement. A key concern was the continuous fulfilment of these requirements throughout the entire period of professional practice — not merely at the moment of registration.
N. 2 The independence criterion (lit. d) was the most contentious issue during the parliamentary deliberations. In its draft (Art. 7 lit. e E-BGFA), the Federal Council had chosen a more open formulation that would have left room for the supervisory authorities and courts to give it concrete form (BBl 1999 6038, para. 172.17). During the September 1999 sessions in the National Council, there was controversial debate as to whether independence should be assessed solely by reference to the individual case or by reference to the institutional structure of the employment relationship. National Councillor Hochreutener advocated a purely case-by-case assessment; National Councillor Nabholz referred to the interests of companies providing comprehensive client advice. National Councillor Jutzet, by contrast, emphasised that part-time employees should not be excluded from the monopoly domain. The Council of States, at first reading, adopted a more strictly worded addition to Art. 11 lit. b E-BGFA guaranteeing lawyers freedom of organisation; the National Council deleted this in 2000 and referred to the Cottier Motion (99.3656), which charged the Federal Council with regulating the organisational forms of the liberal professions. In the end, a formulation prevailed that uses the employment relationship as the central delimiting criterion for institutionally understood independence.
N. 3 Art. 8 para. 1 lit. b BGFA was amended by Annex 1 No. 13 of the Criminal Records Act of 17 June 2016 (SR 330, in force since 23 January 2023): the reference to the «extract from the criminal records for private individuals» was replaced by «private extract pursuant to Art. 41 of the Criminal Records Act», without any change to the substantive legal position.
#2. Systematic Classification
N. 4 Art. 8 BGFA stands systematically between Art. 7 BGFA (professional requirements) and Art. 9 BGFA (deletion of the registration entry). Together, Articles 6–9 form the core of the admission regime: Art. 6 regulates registration as a procedure, Art. 7 the professional requirements, Art. 8 the personal requirements, and Art. 9 their procedural lapse. ↔ Art. 9 BGFA: As soon as a personal requirement under Art. 8 is no longer met, the supervisory authority must delete the registration entry ex officio — deletion under Art. 9 is the mirror image of entry under Art. 8.
N. 5 The personal requirements of Art. 8 serve a dual function: they are, first, conditions for admission (conditions for registration) and, second, ongoing obligations whose lapse leads directly to deletion (→ Art. 9 BGFA). This distinguishes Art. 8 from the professional rules of Art. 12 BGFA, the violation of which triggers disciplinary proceedings under Art. 17 BGFA but does not automatically lead to deletion. ↔ Art. 12 lit. b BGFA: Independence appears both as a condition for registration (Art. 8 para. 1 lit. d; institutional independence) and as a professional rule (Art. 12 lit. b; mandate-related independence). This conceptual bifurcation is central to the understanding of both provisions; cf. BGE 138 II 440 recital 3 p. 443 f.
N. 6 Art. 8 BGFA lays down minimum requirements that must be met in all cantons. Cantonal law may provide for additional requirements (→ Art. 3 para. 1 BGFA), but may not fall below the federal-law requirements. The criteria contained in Art. 8 are accordingly exhaustive in the sense of an irreducible minimum standard; judgment 2C_119/2010 of 1 July 2010 recital 2.2.
#3. Elements of the Offence / Normative Content
3.1 Legal Capacity (Art. 8 para. 1 lit. a)
N. 7 Legal capacity within the meaning of Art. 8 para. 1 lit. a BGFA is governed by Art. 12 ff. CC. A person is legally capable who is of age and of sound mind (Art. 13 CC). The requirement must be met on a continuous basis: if a registered lawyer loses legal capacity (e.g. through a full deputyship with restriction of legal capacity), the registration entry must be deleted pursuant to Art. 9 BGFA. In practice, this criterion is rarely in dispute; the other elements of the provision are of greater practical significance.
3.2 Criminal Records Extract (Art. 8 para. 1 lit. b)
N. 8 Art. 8 para. 1 lit. b BGFA protects the relationship of trust between lawyer and client. The Federal Supreme Court held in BGE 137 II 425 recital 6.1 p. 427 f. that only those convictions are covered which reveal conduct incompatible with the legal profession; a minor speeding offence does not fall within this scope, whereas wilful forgery of documents in an official capacity does (confirmed by judgment 2C_119/2010 of 1 July 2010 recital 2.5). The conduct incompatible with the legal profession need not necessarily have been committed in the course of professional practice; purely private offences may also jeopardise the registration requirement if they damage the relationship of trust with the client (BGE 137 II 425 recital 6.1 p. 428).
N. 9 The supervisory authority has a wide margin of discretion in assessing whether a conviction is incompatible with the legal profession; it must always observe the principle of proportionality and must establish a certain degree of gravity of the conduct (judgment 2C_119/2010 recital 2.2; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 615 p. 273). Once it establishes incompatibility, no further margin of discretion remains: deletion pursuant to Art. 9 BGFA is mandatory (BGE 137 II 425 recital 7.1). The criterion of «private extract» (since 2023: Art. 41 CrimRA) determines the time limit: once the conviction no longer appears on the private extract, the bar to registration lapses.
N. 10 It is not required that the conviction under Art. 67 SCC imposes a prohibition on practising a profession; conversely, a criminal prohibition on practising a profession regularly establishes incompatibility within the meaning of Art. 8 para. 1 lit. b BGFA as well, without being required for that purpose (BGE 137 II 425 recital 6.3 p. 428 f.). Confirmed in the literature by Staehelin/Oetiker, in: Fellmann/Zindel (eds.), Basler Kommentar zum Anwaltsgesetz, 2nd ed. 2011 (BSK BGFA), Art. 8 N. 17 p. 75.
3.3 Certificates of Loss (Art. 8 para. 1 lit. c)
N. 11 Art. 8 para. 1 lit. c BGFA protects the financial integrity of the legal profession. If certificates of loss (Art. 149 DEBA) exist against a lawyer, the registration requirement is not met. The Administrative Court of the Canton of Zurich clarified in VB.2012.00460 of 4 October 2012 that the authority has no margin of discretion where a certificate of loss exists: the provision does not permit a balancing of interests. It is irrelevant whether the certificate of loss arises from the lawyer's own activities or from the activities of the law firm (VB.2018.00666 of 7 March 2019, confirmed by the Federal Supreme Court on 8 August 2019). Once the certificate of loss is discharged, the obstacle lapses.
3.4 Institutional Independence (Art. 8 para. 1 lit. d)
N. 12 The independence criterion is the quantitatively and qualitatively most significant element of Art. 8 BGFA. It requires that lawyers «must be in a position to practise the legal profession independently». The second sub-clause specifies: only persons who are themselves registered in a cantonal register may be employed as lawyers. The Federal Supreme Court characterises this independence as institutional — it concerns the organisational structure, not the individual case (BGE 138 II 440 recital 3 p. 443 f.; BGE 130 II 87 recital 5.1.1 p. 100).
N. 13 The purpose of institutional independence is to ensure that the lawyer carries out his or her activities solely in the interests of the client, without being impaired by extraneous influences from third parties (BGE 130 II 87 recitals 4.1–4.2 p. 93 ff.; BGE 138 II 440 recital 5 p. 445 f.). Since the refusal of registration on grounds of lack of independence affects economic freedom (Art. 27 FC), the criterion must be interpreted in a constitutionally conforming manner — that is, not too narrowly; admission to representation of parties may only be refused to the extent necessary to achieve the protective purpose (BGE 130 II 87 recital 3 p. 92).
N. 14 In the case of employed lawyers whose employer is not registered, there is a rebuttable presumption of lack of independence (BGE 130 II 87 recital 5.1.1 p. 100). To rebut this presumption, the lawyer must establish «clear arrangements» and demonstrate that (a) he or she practises legal activities outside the scope of the employment relationship, (b) he or she restricts mandates to those clearly outside the employer's field of activity, (c) the employer has no right to issue instructions or to inspect the lawyer's mandates, and (d) organisational arrangements ensure the preservation of professional secrecy (e.g. a separate business address; BGE 130 II 87 recital 6.3 p. 105 ff.). Full-time employment with a non-lawyer does not per se preclude registration (recital 6.2 p. 104 f.).
N. 15 An employed lawyer may in principle not represent as a party persons connected with the employer — the employer itself, affiliated companies, its customers, or business partners; in this respect the presumption of lack of independence is irrebuttable (judgment 2A.285/2003 of 7 April 2004 recital 2). Employment at law firms is unproblematic, since the employing lawyer is in turn bound by the rules of conduct and disciplinary supervision (BGE 130 II 87 recital 4.3.4 p. 99; BGE 138 II 440 recital 7 p. 447).
3.5 Exception for Charitable Organisations (Art. 8 para. 2)
N. 16 Art. 8 para. 2 BGFA enables registration for lawyers employed by recognised charitable organisations, provided that (a) the other personal requirements (lit. a–c) are met and (b) representation of parties is strictly confined to mandates within the scope of the organisation's purpose. The Federal Supreme Court has interpreted this exception narrowly: Parliament deliberately rejected «non-profit-oriented organisations»; trade unions and tenants' associations do not fall within this scope to the extent that their mandates are subject to the legal monopoly (BGE 130 II 87 recital 5.1.1 p. 100 f.). In social insurance law, employment with a charitable organisation means that the lawyer may nonetheless be appointed as legal representative in forma pauperis (BGE 135 I 1 recital 2 ff.).
3.6 Corporately Organised Law Firms
N. 17 In BGE 138 II 440, the Federal Supreme Court fundamentally resolved the previously open question of the permissibility of law firm corporations (companies limited by shares, limited liability companies): Art. 8 para. 1 lit. d BGFA does not per se preclude corporately organised law firms. Institutional independence is preserved if the legal entity is entirely controlled by registered lawyers (recital 17 p. 456 f.). What is decisive is not the legal form, but the concrete organisational structure (recital 17 p. 457). The Federal Supreme Court expressly left open whether multidisciplinary partnerships (companies with non-registered partners) are permissible (recital 23 p. 463).
#4. Legal Consequences
N. 18 If all personal requirements under Art. 8 BGFA are met — together with the professional requirements under Art. 7 BGFA — the supervisory authority must register the lawyer in the cantonal register (Art. 6 para. 2 BGFA). There is a legal entitlement to registration. Conversely, the absence of even one personal requirement necessarily leads to the rejection of the application for registration or — if the requirement lapses subsequently — to deletion pursuant to Art. 9 BGFA.
N. 19 Deletion pursuant to Art. 9 BGFA is an administrative measure, not a disciplinary measure within the meaning of Art. 17 BGFA. The two proceedings are independent of one another: deletion neither precludes the initiation nor the continuation of disciplinary proceedings; a disciplinary measure, conversely, does not automatically lead to deletion as long as the requirements under Art. 8 continue to be met (BGE 137 II 425 recital 7.2 p. 429 f.; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 699 p. 309).
N. 20 The person concerned has the right to appeal against a refusal of registration or a deletion order to the competent cantonal appellate authorities. The bar association of the canton in question also has standing to appeal to the Federal Supreme Court (Art. 6 para. 4 BGFA; BGE 130 II 87 recital 1 p. 90). Since the refusal of registration affects economic freedom, it is subject to proportionality review (Art. 36 FC). The transitional provision of Art. 36 BGFA may exempt from the professional requirements (Art. 7 BGFA), but not from the personal requirements under Art. 8 BGFA (BGE 130 II 87 recital 8.2 p. 109 f.).
#5. Contested Issues
N. 21 Scope of Art. 8 para. 1 lit. d in relation to part-time and full-time employment. Before and immediately after the entry into force of the BGFA, there was controversy as to whether any employment with a non-lawyer would preclude registration. Hess (Umsetzung des BGFA durch die Kantone, SJZ 2002, p. 493 f.) and the Federal Supreme Court took the more restrictive institutional interpretation: employed lawyers may claim registration if independence is structurally ensured. Nater (Steiniger Weg zur Harmonisierung, SJZ 2002, p. 364), by contrast, advocated a more liberal interpretation to the effect that lawyers admitted under previous cantonal practice were to be registered on the basis of Art. 36 BGFA. The Federal Supreme Court expressly confirmed the position of Hess and rejected that of Nater (judgment 2A.285/2003 recital 3.2; BGE 130 II 87 recital 8.2 p. 109 f.).
N. 22 Permissibility of law firm corporations. Prior to BGE 138 II 440 (2012), the permissibility of corporate law firm structures under the applicable Art. 8 para. 1 lit. d BGFA was controversial in both the literature and practice. Sanwald (Rechtsformen für freie Berufe, FS 100 Jahre Verband bernischer Notare, 2003, p. 242) long considered law firm corporations to be incompatible with independence. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 2401), Fellmann (Anwaltsrecht, 2010, N. 1593 ff.), Schiller (Schweizerisches Anwaltsrecht, 2009, N. 1248 ff.), and Zindel (Anwaltsgesellschaften in der Schweiz, SJZ 2012, p. 259), by contrast, welcomed the admission of such firms to the extent that registered lawyers entirely control the company. The Federal Supreme Court in BGE 138 II 440 confirmed the view of Bohnet/Martenet, Fellmann, Schiller, and Zindel. The question of multidisciplinary partnerships, on which academic opinion is divided, remains open.
N. 23 Margin of discretion under Art. 8 para. 1 lit. b. It is accepted in the literature that the supervisory authority has a wide margin of discretion in assessing the compatibility of a conviction with the legal profession (Meier/Reiser, in: Valticos/Reiser/Chappuis (eds.), Commentaire romand, Loi sur les avocats, 2010, Art. 8 N. 21 p. 62; Bohnet/Martenet, op. cit., N. 610 f. p. 271). Staehelin/Oetiker (BSK BGFA, Art. 8 N. 6, 18), by contrast, emphasise that proportionality must always be maintained and that a certain degree of gravity of the conduct is required. These positions are not contradictory but complementary: the wide margin of discretion is bounded by the principle of proportionality, as the Federal Supreme Court confirmed in BGE 137 II 425 recital 6.1 and judgment 2C_119/2010 recital 2.2.
#6. Practical Notes
N. 24 Application for registration. Lawyers who wish to be registered in a cantonal register of lawyers must, pursuant to Art. 5 para. 1 lit. c BGFA, submit all certificates establishing that the requirements of Art. 8 are met. In the case of employed lawyers, complete details of the employment relationship are required; inadequate information is to the applicant's detriment (BGE 130 II 87 recital 7 p. 107 f.).
N. 25 Employment relationship: obligation to establish clear arrangements. A lawyer employed by a non-lawyer who wishes to be registered in the register of lawyers must in particular set out and substantiate the following: (a) the employer's consent to the practice of law as a secondary occupation (in writing); (b) the complete absence of any right of the employer to issue instructions regarding the lawyer's mandates; (c) the exclusion of representation of the employer, affiliated companies, and the employer's clients; (d) organisational measures to ensure compliance with professional secrecy, in particular a business address separate from the employer (BGE 130 II 87 recital 6.3 p. 105 ff.).
N. 26 Law firm corporations. Following BGE 138 II 440 recital 17, law firm corporations (companies limited by shares or limited liability companies) are permissible if registered lawyers entirely control the company. The following are recommended in practice: shareholders' agreements excluding the transfer of shares to non-lawyers; statutory restrictions on the transferability of shares; limitation of the board of directors to registered lawyers; regulation of the mandate relationship in the organisational regulations and employment contracts to ensure compliance with the professional rules under Art. 12 BGFA.
N. 27 Ongoing monitoring obligation. Since the personal requirements must be met on a continuous basis, lawyers must inform the supervisory authority of any changes that may be relevant to the conditions for registration (e.g. a new employment arrangement, the issuance of a certificate of loss, a final conviction). This obligation arises from the general duty of diligence under Art. 12 lit. a BGFA (BGE 130 II 87 recital 7 p. 108). The supervisory authority is in turn obliged to act ex officio as soon as it becomes aware of the lapse of a requirement (→ Art. 9 BGFA; BBl 1999 6039).
N. 28 Distinction between administrative and disciplinary proceedings. In practice it is important to note that deletion pursuant to Art. 9 BGFA does not involve the same procedure or the same legal consequences as a disciplinary measure under Art. 17 BGFA (→ Art. 17 BGFA). The supervisory authority must keep the two proceedings clearly separate; initiating both simultaneously is permissible, but the substantive assessment must be conducted separately (BGE 137 II 425 recital 7.2 p. 429 f.).
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