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08 June 2021
According to the Lawyers Act (BGFA),(1) lawyers must practise their profession "carefully and conscientiously" (Article 12(a)). The general regulations of the act are supplemented with the Swiss Bar Association (SAV) Code of Professional Conduct,(2) which contains provisions on how to interact with clients, the courts and professional colleagues. If a lawyer violates these duties in a qualified manner, the Lawyers' Supervisory Authority may impose disciplinary measures ranging from a mere warning to a fine or a permanent ban on practising as a lawyer (Article 17 of the BGFA).
The application of Article 12(a) of the BGFA is endless and covers the entire legal practice. A Federal Supreme Court decision of 17 March 2021 (2C_500/2020)(3) illustrates the forms which violations of the SAV Code of Professional Conduct can take. In this judgment, the highest Swiss court decided that such a violation can take the form of "active interference with the court's establishment of the truth".
The case concerned a lawyer's letter which contained a settlement proposal. After the first hearing in the divorce proceedings was unsuccessful, the opposing counsel (complainant) submitted this letter as part of his subsequent correspondence with the civil court, as an enclosure designated as an "extract from letter...". Various parts of the letter had been censored – in particular, the passage which stated that the contents of the letter were non-prejudicial statements of the parties. The Lawyers' Supervisory Authority thereupon issued an official warning to the complainant.
On the one hand, the Lawyers' Supervisory Authority referred to the principles set out in the SAV Code of Professional Conduct, which state that documents between professional colleagues which are expressively designated as confidential must not find their way into judicial proceedings. Moreover, the authority stated that lawyers can inform the courts about another party's settlement proposals only with such party's consent (Articles 6 and 26 of the SAV Code of Professional Conduct; partial disclosure is also inadmissible (Paragraph 4.2 of Decision 2C_500/2020)).
On the other hand, the Lawyers' Supervisory Authority accused the complainant of having misled the court by censoring specific parts of the settlement proposal. The complainant had censored the statement that the contents were only non-prejudicial statements made in the context of settlement negotiations. The Lawyers' Supervisory Authority held that in doing so, the complainant had "converted" the letter into an unconditional acknowledgement of debt (Paragraph 5.2 of Decision 2C_500/2020).
In the Federal Supreme Court proceedings, the complainant argued that the opposing party had already submitted the settlement proposal to the civil court and had thus rescinded its confidentiality. In addition, he claimed that the court had served him with the settlement proposal and removed the confidentiality requirement again (Paragraph 4.1 of Decision 2C_500/2020).
The Federal Supreme Court reminded the parties that the content of settlement discussions between lawyers is automatically confidential and must never be submitted to the court without the other party's consent (the reason for this being the public interest in amicable and extra-judicial settlements (Paragraph 4.5 of Decision 2C_500/2020)). Since the highest court had not yet clarified the nature of settlement hearings in divorce proceedings and as the entire settlement proposal was already on file, the Federal Supreme Court qualified the lawyer's violation of the SAV Code of Professional Conduct as not particularly serious and agreed with the complainant's arguments in this regard.
However, the Federal Supreme Court accused the complainant of having misled the civil court. The Federal Supreme Court pointed out that lawyers must primarily represent their clients' interests and are not obliged to help the courts establish the truth. However, the choice of means as to how a lawyer wants to convince the court is limited to means which conform with the law. In this sense, lawyers are prohibited from, among other things, falsifying documents for evidentiary purposes. Further, if a lawyer intervenes in a "positively disruptive" manner in the establishment of the truth (ie, by deliberately and actively misleading the court), this will be incompatible with their obligation to practise carefully and conscientiously. However, lawyers are not obliged to:
As a result, the Federal Supreme Court concluded that the complainant had acted improperly under supervisory law. By censoring the aforementioned passage, the statements had been taken out of context and the reader had been given the impression that the letter constituted a debt acknowledgement (Paragraph 5.4 of Decision 2C_500/2020).
Lawyers operate within a 'minefield' – be that with regard to their direct interaction with clients, opposing parties or the courts. Care must be taken when corresponding with another party; it is essential to choose the right words – to not say too much or too little and to always remain polite. Further, if necessary, lawyers should specify the confidential and non-binding nature of their remarks. Particularly when communicating with the courts, lawyers skate on thin ice and must check every sentence to see whether there is room for misunderstanding. This work usually has little to do with a specific case or legal issues, but is still an important part of a lawyer's role.
This decision of the Federal Supreme Court – which is to be agreed with – illustrates this lesson and shows that the protection of client interests must not go too far as there is a risk of disturbing the court in its establishment of the objective truth.
For more information please contact Susanne Brütsch at Lenz & Staehelin by telephone (+41 58 450 80 00) or email (firstname.lastname@example.org). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
(1) BGFA; SR 935.61.
(3) Further information on the decision of 17 March 2021 (2C_500/2020) is available here.
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