Art. 9 BGFA — Löschung des Registereintrags

Open Legal Commentary

Noch kein Inhalt verfügbar.

Art. 9 BGFA – Removal from the Register

Doctrine

1. Legislative History

N. 1 Art. 9 BGFA contains a single normative statement: lawyers who no longer fulfil one of the conditions for registration shall be removed from the register. The provision entered into force together with the BGFA as a whole on 1 June 2002 and has remained unchanged since then.

N. 2 The Federal Council conceived Art. 9 BGFA as the mirror image of Art. 6 BGFA (registration): whoever must fulfil the conditions of Arts. 7 and 8 BGFA at the time of registration must continue to fulfil them on an ongoing basis. If those conditions cease to be met, the right to intercantonal freedom of movement lapses (BBl 1999 6013, 6039 f.). The dispatch expressly emphasised that removal from the register is not a disciplinary measure but an administrative measure under administrative law for the protection of the public seeking legal advice; the distinction between administrative measures and disciplinary measures was already present in the Federal Council's awareness at the drafting stage (BBl 1999 6013, 6050 f.).

N. 3 The parliamentary deliberations were not particularly contentious with regard to the wording of Art. 9 BGFA itself. The prior question of which personal conditions under Art. 8 BGFA could trigger removal was, however, disputed. In the National Council, the question of the independence requirement was debated intensively (AB 1999 N 1556–1566); after several rounds of reconciliation of differences, both chambers approved the Act on 23 June 2000 in the final vote.

2. Systematic Classification

N. 4 Art. 9 BGFA is situated in the first section of the Act («Freedom of movement and register», Arts. 1–11) and constitutes the negative counterpart to Art. 6 BGFA (registration). The relationship is direct: Art. 6 para. 2 BGFA obliges the supervisory authority to register a lawyer once the conditions of Arts. 7 and 8 BGFA are met; Art. 9 BGFA obliges it to remove the registration as soon as one of those conditions ceases to be met. ↔ Art. 6 BGFA (conditions and obligation for registration).

N. 5 The provision must be strictly distinguished from the disciplinary measures under Art. 17 BGFA. The Federal Supreme Court elaborated this distinction in a foundational manner in BGE 137 II 425 E. 7.2: removal under Art. 9 BGFA is an administrative measure of a police-law nature, which intervenes when the statutory conditions for admission are no longer satisfied. A disciplinary measure under Art. 17 BGFA, by contrast, requires a breach of professional rules and is repressive in character. Both procedures are independent of each other; removal does not preclude the initiation or continuation of disciplinary proceedings (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 699 p. 309). → Art. 17 BGFA.

N. 6 Art. 9 BGFA applies exclusively to lawyers subject to the BGFA, i.e. those who represent parties before judicial authorities within the scope of the lawyers' monopoly (Art. 2 para. 1 BGFA). Lawyers engaged purely in advisory work without a register entry are not covered by Art. 9 BGFA; cantonal law measures remain available against them (Judgment 2C_897/2015 of 25.5.2016 E. 5.2.1). → Art. 2 para. 1 BGFA, → Art. 3 BGFA.

3. Content of the Provision

3.1 Grounds for Removal: Lapse of the Conditions for Registration

N. 7 Art. 9 BGFA identifies the ground for removal in abstract terms: the lapse of «one of the conditions for registration». The relevant conditions are the professional qualifications regulated in Art. 7 BGFA and the personal conditions regulated in Art. 8 BGFA. In practice, the personal conditions are the dominant ground for removal; the lapse of professional qualifications is rare, since the cantonal bar licence as a certificate of competence is in principle granted permanently (Staehelin/Oetiker, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 9 BGFA).

N. 8 The most frequent grounds for removal in practice are:

Criminal conviction for acts incompatible with the profession of lawyer (Art. 8 para. 1 lit. b BGFA): in particular offences against property, forgery of documents, and comparable offences that undermine confidence in the probity and integrity of the lawyer (BBl 1999 6013, 6050; Judgment 2C_119/2010 of 1.7.2010 E. 2.5). The acts need not have been committed in the course of legal practice; privately committed offences may also be relevant insofar as they call into question the trustworthiness required for the profession (BGE 137 II 425 E. 6.1).
Certificates of unpaid debt (Art. 8 para. 1 lit. c BGFA): the mere existence of a certificate of unpaid debt — including a provisional one — mandatorily triggers removal; the authority has no discretion in this respect (Administrative Court ZH, VB.2012.00460 of 4.10.2012 E. 3.2; VB.2024.00278 of 10.4.2025 E. 3).
Lapse of independence (Art. 8 para. 1 lit. d BGFA): if institutional independence is lost — for example because a lawyer is employed by a person not entered in the register, or because the shareholder structure of a law firm no longer satisfies the independence requirements — the supervisory authority must remove the registration (BGE 147 II 61 E. 4.2). → Art. 8 BGFA.

3.2 Two-Stage Assessment for the Criminal-Conviction Ground for Removal

N. 9 For the ground of removal based on criminal conviction (Art. 8 para. 1 lit. b BGFA), the Federal Supreme Court applies a two-stage assessment (BGE 137 II 425 E. 6.1; Judgment 2C_90/2019 of 22.8.2019 E. 6):

First stage — compatibility assessment: The supervisory authority examines with a broad margin of discretion whether the acts committed are compatible with the profession of lawyer. The principle of proportionality must be observed; the acts must be of a certain gravity (Judgment 2C_119/2010 of 1.7.2010 E. 2.2). Minor offences such as isolated speeding violations are excluded.
Second stage — mandatory removal: If the authority concludes that the acts are incompatible, removal under Art. 9 BGFA is mandatory. No further discretion remains; in particular, proportionality is not to be re-examined at this stage (Judgment 2C_119/2010 of 1.7.2010 E. 3; BGE 137 II 425 E. 7.1).

3.3 Administrative Character and Relationship to Art. 67 SCC

N. 10 Removal under Art. 9 BGFA does not require that the criminal court has imposed a prohibition on professional activity under Art. 67 SCC. Where such a prohibition exists, it reinforces the obligation to remove but is not a necessary precondition (BGE 137 II 425 E. 6.3; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 613 p. 273). The administrative character of the measure under Art. 9 BGFA differs fundamentally from the criminal prohibition on professional activity: the latter is a sanction, while the former is an admission condition motivated by police law (Judgment 2C_90/2019 of 22.8.2019 E. 4.3).

3.4 Point in Time at Which Removal Takes Effect

N. 11 Removal takes effect as of the date on which the decision of the competent cantonal supervisory authority becomes final, not retroactively as of the date on which the condition lapsed (Administrative Court ZH, VB.2018.00666 of 19.2.2019 E. 3). Legal services rendered by the lawyer between the lapse of the condition and removal remain valid in principle; the effect of removal operates ex nunc.

4. Legal Consequences

4.1 Loss of the Right to Intercantonal Professional Practice

N. 12 Removal deprives the lawyer of the entitlement conferred by Art. 4 BGFA to represent parties before judicial authorities in all cantons without further authorisation. It is a police-law measure to safeguard the protection of the public, not a punitive or disciplinary instrument (Judgment 2C_897/2015 of 25.5.2016 E. 5.2; Judgment 2C_90/2019 of 22.8.2019 E. 4.3). Art. 9 BGFA provides a conclusive federal-law regulation of the consequences of the lapse of personal conditions for admission for registered lawyers; further cantonal measures (e.g. revocation of the bar licence) are to be assessed separately (Judgment 2C_897/2015 of 25.5.2016 E. 5.3; → Art. 3 BGFA).

4.2 Relationship to the Cantonal Bar Licence

N. 13 Removal from the lawyers' register must be distinguished from any cantonal revocation of the bar licence. The BGFA does not regulate revocation of the bar licence; this remains within cantonal competence insofar as the cantons have linked acquisition of the bar licence to personal conditions (Judgment 2C_897/2015 of 25.5.2016 E. 6.3). In cantons that do not provide for revocation of the bar licence or have refrained from doing so, the effects of removal under Art. 9 BGFA are limited to the register entry. The cantonal bar licence as such remains unaffected (Staehelin/Oetiker, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 18 on Art. 6 BGFA).

4.3 Possibility of Re-registration

N. 14 Art. 9 BGFA regulates only removal, not re-registration. The latter is governed by Art. 6 BGFA: if the conditions of Arts. 7 and 8 BGFA are once again satisfied — in particular if the criminal conviction no longer appears in the extract from the criminal register (Art. 8 para. 1 lit. b BGFA) or the certificates of unpaid debt have been discharged (Art. 8 para. 1 lit. c BGFA) — the lawyer concerned may submit a new application for registration (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 699 p. 309; Administrative Court ZH, VB.2013.00086 of 8.5.2013). The point in time at which re-registration becomes possible thus depends substantially on the expiry of the criminal record deletion periods (BGE 137 II 425 E. 7.1).

4.4 Law Firms in Corporate Form

N. 15 Where a registered lawyer carries on their activity as an employee of a law firm organised in corporate form (e.g. a corporation), the supervisory authority must remove that lawyer from the register as soon as the company no longer satisfies the requirements of structural independence — that is, as soon as shareholders who are not entered in the lawyers' register acquire influence over the company. The supervisory authority cannot compel the company itself or future non-lawyer shareholders to take specific measures (BGE 147 II 61 E. 4.1 f.). ↔ Art. 8 para. 1 lit. d BGFA.

5. Disputed Questions

5.1 Proportionality in the Two-Stage Assessment

N. 16 It is disputed whether and to what extent the principle of proportionality may be taken into account in removal proceedings under Art. 9 BGFA. The Federal Supreme Court takes the view that proportionality is to be observed exclusively at the first stage of the compatibility assessment; once incompatibility has been established, removal follows mandatorily without any further exercise of discretion (BGE 137 II 425 E. 6.1 and 7.1; Judgment 2C_119/2010 of 1.7.2010 E. 3; AB 1999 NR 1567 f.).

N. 17 Meier/Reiser (in: Valticos et al. [eds.], Commentaire romand, Loi sur les avocats, 2010, N. 6 on Art. 9 BGFA) contend, by contrast, that proportionality must always be examined also in the ordering of removal itself; a strictly automatic mechanism is incompatible with the principle enshrined in Art. 5 para. 2 FC. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 610 f. pp. 271 f.) share this reservation and emphasise that the gravity of the act must always bear a reasonable relationship to the removal. The Federal Supreme Court has taken this view into account to the extent that it explicitly integrates the proportionality assessment into the first stage of the compatibility assessment, while at that stage operating with a considerable margin of discretion for the authority (Judgment 2C_90/2019 of 22.8.2019 E. 6).

5.2 Binding Effect of the Criminal Judgment

N. 18 It is disputed to what extent the supervisory authority is bound by the factual findings of the criminal judgment in the compatibility assessment. The Federal Supreme Court applies general principles: the authority may depart from the factual findings of the criminal court only if it has additional evidence at its disposal or if the criminal court did not examine certain legal questions (Judgment 2C_90/2019 of 22.8.2019 E. 3.1). Pure questions of law — in particular whether the established conduct is compatible with the profession of lawyer — are assessed independently by the administrative authority (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 615 pp. 273 f.).

5.3 Removal in the Case of Provisional Certificates of Unpaid Debt

N. 19 Cantonal practice has raised the question of whether a provisional certificate of unpaid debt already triggers the obligation to remove. The Administrative Court of Zurich consistently answers this in the affirmative (VB.2024.00278 of 10.4.2025 E. 3; VB.2025.00389 of 25.11.2025 E. 3): Art. 8 para. 1 lit. c BGFA does not distinguish between provisional and final certificates of unpaid debt. Even in the case of provisional certificates, the authority has no margin of discretion. If the certificate of unpaid debt subsequently lapses, re-registration is possible. Staehelin/Oetiker (in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 18 on Art. 8 BGFA) favour analogous treatment.

5.4 Relationship to Cantonal Revocation of the Bar Licence

N. 20 Whether cantons are entitled to revoke the bar licence upon the lapse of personal conditions — i.e. where grounds for removal within the meaning of Art. 9 BGFA exist — was long disputed. Kettiger (Entzug des Anwaltspatents: Zur Frage der Rechtmässigkeit kantonaler Regelungen des Patententzugs, Jusletter 28 September 2009, pp. 4 f.) answered this in the negative: with the BGFA, the federal legislator had conclusively regulated the consequences of the lapse of personal conditions through Art. 9 BGFA; revocation of the bar licence was therefore contrary to federal law. The Federal Supreme Court did not follow this view and — referring to Art. 3 para. 1 BGFA and the cantonal patent laws that have traditionally included personal conditions — declared cantonal revocation of the bar licence permissible, provided that it is proportionate (Judgment 2C_897/2015 of 25.5.2016 E. 6.2 f.; in agreement: Bohnet/Othenin-Girard/Schweizer, in: Commentaire romand, Loi sur les avocats, 2010, N. 16 on Art. 3 BGFA; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 684 f.).

6. Practical Notes

N. 21 Duty to notify: A registered lawyer is obliged under Art. 12 lit. a BGFA to inform the supervisory authority of changes in their circumstances that may be relevant to the conditions for registration — for example, entering into an employment relationship with an employer not entered in the register, or the issuing of new certificates of unpaid debt (BGE 130 II 87 E. 7). A breach of this duty to notify may itself trigger a disciplinary measure under Art. 17 BGFA. → Art. 12 lit. a BGFA.

N. 22 Procedural aspects: The removal procedure is an administrative procedure under administrative law, not a disciplinary procedure. The right to be heard must be granted before removal (Art. 29 para. 2 FC). An oral hearing is not mandatory where only legal questions and no factual questions remain open (Judgment 2C_90/2019 of 22.8.2019 E. 4.3). Appeals against removal decisions by way of public law complaints to the Federal Supreme Court are admissible (Art. 82 lit. a BGG; cf. Judgment 2C_119/2010 of 1.7.2010 E. 1).

N. 23 Effect on ancillary rights: Removal from the lawyers' register simultaneously causes, by direct legal connection, the lapse of dependent cantonal ancillary rights; for example, a lawyer registered as a notary in the Canton of Zug automatically loses their notarial authority upon removal from the register (Judgment 2C_119/2010 of 1.7.2010 E. 4.2).

N. 24 Strategic re-registration: Since removal operates ex nunc only and re-registration is possible as soon as the conditions under Arts. 6–8 BGFA are once again fulfilled, it is advisable for affected lawyers to determine, already during the removal proceedings, the point in time at which the obstacles to registration will cease to exist (e.g. expiry of the probationary period in the criminal record pursuant to Art. 371 para. 3bis SCC, discharge of certificates of unpaid debt) and to prepare a new application for registration under Art. 6 BGFA at an early stage.

N. 25 Law firms in corporate form: Lawyers practising in a law firm organised in corporate form must continuously monitor the corporate law arrangements. They must inform the supervisory authority without delay if non-lawyers acquire shares or equity interests, as this may give rise to an immediate obligation to remove (BGE 147 II 61 E. 4.4). Preventive measures such as shareholders' agreements, pre-emption rights or compulsory transfer clauses are recommended; however, the authority is not empowered to compel their introduction (BGE 147 II 61 E. 4.3). ↔ Art. 8 para. 1 lit. d BGFA.