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

By Land Law

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)