Facts
Parties and procedural history:
The complainant, a lawyer, was convicted by the Zurich District Court of violating professional secrecy (Art. 321 SCC) and sentenced to a suspended fine. The Zurich Cantonal High Court upheld this judgment on appeal. The complainant, in his criminal appeal, alleges a violation of federal law and requests the annulment of the judgment and his acquittal from the charge of violating professional secrecy.
Factual background:
On 4 January 2014, the complainant filed an application for super-provisional measures under Art. 265 CPC against the [A.] Foundation and its president, disclosing details of a client relationship and submitting relevant documents without being released from his duty of confidentiality. The criminal complaint against the complainant was filed on 3 April 2014 by lawyer [B.] , who had been instructed by [C.] , the collectively authorised president of the foundation. The complainant argues that the criminal complaint is invalid due to defective power of attorney and that it does not reflect the will of the foundation. He further contends that he could not wait for a waiver from his duty of confidentiality due to time constraints, as the foundation could have withdrawn assets.
The lower courts took a different view: the power of attorney was valid despite the lack of signature by other foundation board members, as [C.] was authorised to safeguard the foundation’s interests by virtue of his position. Moreover, there was no particular urgency, as the complainant had sufficient time to obtain a waiver from his duty of confidentiality or to take other legal steps.
Considerations
1. Validity of the criminal complaint:
The Federal Supreme Court confirms the lower courts’ view that the criminal complaint is valid despite civil law defects in the power of attorney. What is decisive is not the signing authority as registered in the commercial register, but whether the person acting was expressly or tacitly entrusted with safeguarding the interests of the legal entity. As president of the foundation and collectively authorised signatory, [C.] was tasked with protecting the foundation’s interests, such that his instruction of lawyer [B.] and the filing of the criminal complaint were legitimate. Moreover, the complaint did not contradict the will of the foundation’s bodies, as confirmed by statements from [C.] and [D.] .
2. Violation of professional secrecy and grounds for justification:
The violation of professional secrecy under Art. 321 SCC is punishable only upon request. The complainant could not rely on a waiver from his duty of confidentiality, as he had not obtained one in a timely manner. In the Canton of Zurich, a waiver must be applied for in writing to the Supervisory Commission under § 33 Lawyers Act/ZH, and subsequent approval is not possible. The complainant had ample time to submit such an application, particularly since he had already learned on 23 December 2013 of the lifting of an account freeze. The lower courts correctly denied the existence of particular…