Facts
The case concerns an attorney, A., who initiated a recovery procedure against his client, C., for a fee claim. The procedure was initiated without the attorney being released from professional secrecy. The Supervisory Authority for Attorneys of the Canton of Zurich filed a complaint against A. with the Bar Association of the Canton of St. Gall, alleging a violation of professional secrecy.
The Bar Association of the Canton of St. Gall opened a disciplinary procedure against A. and found a violation of Article 13, paragraph 1, of the Federal Act on Attorneys. A. was fined 1,000 Swiss francs.
A. appealed this decision to the Administrative Court of the Canton of St. Gall, which rejected the appeal. A. then appealed to the Swiss Federal Court.
Considerations
The Swiss Federal Court examined the question of whether an attorney can be released from professional secrecy in an anticipatory manner, with a view to potential future disputes over fees. The Court considered that the lifting of professional secrecy must be assessed in light of federal law and that the former cantonal jurisprudence, which admitted fee actions in part without lifting professional secrecy, is not determinative.
The Court also considered that the more recent cantonal doctrine and jurisprudence reject in principle an anticipatory lifting of professional secrecy granted in advance. The Court emphasized that the lifting of professional secrecy must at least meet the necessary criteria for justification within the meaning of Article 321, paragraph 2, of the Swiss Criminal Code.
The Court concluded…