Competence of the authority to rule on the capacity to act as counsel of the lawyer in a pending proceeding

Facts

A. By public will of 28 September 2012, C., who died on 26 November 2019 in Geneva, appointed his two children, B. and A., as heirs and granted several legacies to his spouse D.

B.a. By decision of 27 January 2020, the Justice of the Peace of the Canton of Geneva appointed notary E. to proceed with the civil inventory of the estate of the late C.

B.b.a. By deed issued on 10 February 2020, B., represented by lawyer Eric Hess, filed an appeal against this decision and requested the appointment of another notary.

B.b.b. In his response, A. filed a preliminary request to prohibit Eric Hess from acting as counsel, alleging a conflict of interest.

B.b.c. By judgment of 7 May 2020, the Court of Justice declared B.'s appeal admissible and A.'s preliminary request inadmissible.

C. By judgment of 25 March 2021, the Federal Tribunal upheld the appeal, annulled the contested judgment and remanded the case to the cantonal authority for a new decision.

Considerations

6. The question is whether the interpretation according to which Art. 43 para. 3 of the Geneva law on the legal profession establishes the competence of the Bar Commission to rule on the capacity to act as counsel of a lawyer in a pending civil proceeding violates Art. 49 para. 1 Cst.

6.1.1. According to Art. 49 para. 1 Cst., federal law takes precedence over cantonal law that is contrary to it. The Federal Tribunal freely examines the conformity of a cantonal legal rule with federal law.

6.1.2. Art. 122 Cst. reserves the competence of the cantons in the field of judicial organization and the administration of justice in civil matters, unless otherwise provided by law. Federal law must be interpreted restrictively if it infringes on this cantonal competence.

6.1.3. According to Art. 12 let. c LLCA, the lawyer must avoid any conflict of interest. The prohibition to act as counsel is the logical consequence of the finding of such a conflict. The LLCA does not designate the competent authority to prevent the lawyer from acting as counsel in the event of a conflict of interest, leaving this question to the cantons.

6.2.1. In civil proceedings, the capacity to act as counsel is part of the admissibility requirements within the meaning of Art. 59 CPC. The court or the delegated judge must set a time limit for the party to appoint a representative who meets the legal requirements in case of lack of capacity to act as counsel.

6.2.2. In criminal proceedings, the Federal Tribunal has ruled that the authority in charge of the proceedings must rule ex officio and at all times on the capacity to act as counsel of a professional representative.

6.2.3. In doctrine,…