The Swiss Federal Supreme Court confirms the disciplinary penalty imposed on a Swiss attorney-at-law for multiple violations of the applicable code of professional conduct

In various criminal and civil proceedings before Swiss courts, an attorney-at-law admitted to the bar in Switzerland has simultaneously accepted the legal representation of companies as well as of an executive body of these companies, although the interests of the represented parties were not directed in the same way.

Pursuant to article 12 lit. c of the Federal Law on the Free Movement of Lawyers (Swiss Federal Bar Act; BGFA), lawyers must avoid any conflict between the interests of their clients and the persons with whom they have a business or private relationship. An attorney-at-law may therefore not represent a third party whose interests could in any way affect those of a client – even if that client has consented to the representation of the third party.

In its ruling (BGer 2C_999/2020 dated December 8, 2021), the Swiss Federal Supreme Court states that an actual risk of a conflict of interest must exist to violate article 12 lit. c BGFA. A double representation according to this provision does not necessarily have to concern the same formal proceedings or directly related ancillary proceedings. If there is a relevamt connection between legal proceedings, a violation of this provision of the Swiss Federal Bar Act occurs if an attorney-at-law represents clients whose interests are not directed in the same way.

 

Pursuant to article 12 of the National Rules of Professional Conduct of the Swiss Bar Association (SAV ¦ FSA) attorneys-at-law must resign from the mandate vis-à-vis all clients concerned if a conflict of interest arises, if there is a risk of a breach of professional secrecy or if independence is in jeopardy.

 

Decision of the second Public Law Division of the Swiss Federal Supreme Court dated Dezember, 8 2021 (2C_999/2020)

 

Adaptation of Swiss federal law to developments in distributed ledger technology (DLT).

With the first part of the “Federal Act on the Adaptation of Federal Law to Developments in Distributed Electronic Register Technology”, which entered into force on February 1, 2021, the Swiss legislator has created a legal basis for certain blockchain-based legal positions (such as claims and membership rights) as well as assets.

This legislation is based on a genuinely civil law solution, which provides the parties with toolkits to map and transfer their rights, but leaves the technical details to the contractual agreement of the parties (and thus to private autonomy and consequently without state certification or supervisory bodies). This is intended to prevent technological development from being steered in a specific, state-determined direction and to prevent future innovations from being hindered. The new or revised provisions in the Code of Obligations (article 622 CO, article 973c CO, article 973d CO, article 973e CO, article 973f CO, article 973g CO, article 973h CO, article 973i CO und article 1153a CO) will therefore only define the objectives that a register must achieve in order to replace a traditional deed as an information carrier under securities law. The technical implementation of these requirements, on the other hand, is left to practice.

Botschaft zum Bundesgesetz zur Anpassung des Bundesrechts an Entwicklungen der Technik verteilter elektronischer Register (AS 2021 33; BBl 2020 233)

Bundesgesetz zur Anpassung des Bundesrechts an Entwicklungen der Technik verteilter elektronischer Register (AS 2021 33; BBl 2020 329)

The shares of MME Compliance AG were registered on February 1 at 00:00:01 on the digital share platform of daura AG, a joint venture of SIX Group AG, Swisscom (Schweiz) AG and other partners, as the first DLT registry rights in Switzerland.