Facts
The complainant, lawyer Prof. Dr. X., was convicted by the Supervisory Commission on Lawyers in the Canton of Zug for inadmissible dual representation. The complainant had represented both Winterthur Swiss Insurance Company and its insured, Z., in the liability proceedings before the Cantonal Court of Zug. The Supervisory Commission saw this as a violation of Art. 12 lit. c FMLA, as the complainant could not objectively guarantee that his actions in the proceedings were determined solely by the interests of his client.
The complainant had also represented the interests of Swiss Mobiliar Insurance Company in another pending court case. The Supervisory Commission saw this as another inadmissible dual representation, as the complainant objectively could not provide any guarantee that in the liability proceedings all his actions were determined solely by the interests of his client.
Considerations
The Federal Court overturned the decision of the Supervisory Commission and upheld the complaint of lawyer X. The court stated that the simultaneous representation of insurer and insured by the same lawyer in liability proceedings is not per se inadmissible. It is not excluded that the insurer and the insured have different interests, but this must be examined on a case-by-case basis.
The court further stated that the Supervisory Commission overvalued the risk of a conflict of interest between the insurer and the insured. The simultaneous representation of insurer and insured by the same lawyer is generally…