Facts

Parties and procedural history:

The complainant, a lawyer acting as an official defender, was fined CHF 5,000 by the Supervisory Commission for Lawyers in the Canton of Zurich for violating professional rules under Art. 12 lit. a FMLA. The decision of the Supervisory Commission was confirmed by the Administrative Court of the Canton of Zurich in a judgment dated 24 November 2022. The complainant filed an appeal in public law matters with the Federal Supreme Court (2C_83/2023).

Factual background:

The complainant represented a defendant as an official defender in first-instance criminal proceedings before the District Court of Zurich. In two letters to the District Court of Zurich, he made the following statements:

  • Letter dated 4 April 2019: The complainant described the presiding judge (District Judge [B.] ) as "biased, malicious and hostile, indeed almost sneering," and claimed that the judge adopted an attitude aimed at depriving the client of any effective means of defending himself against charges of murder. He also wrote that the proceedings under the presiding judge's direction would "degenerate into a farce."
  • Letter dated 29 January 2020: The complainant unconditionally endorsed a submission by the defendant's chosen counsel [C.] , in which the latter challenged the presiding judge's impartiality. However, the submission by the chosen counsel contained numerous derogatory and insulting statements, for which he was later also fined CHF 5,000. The chosen counsel described the presiding judge, among other things, as a "destroyer" with a "dirty trial style" and accused him of "taking advantage of a helpless person."

The presiding judge filed a criminal complaint against the complainant, prompting the Supervisory Commission to initiate disciplinary proceedings and impose a fine. The complainant appealed this decision, seeking the annulment of the fine and a finding that he had not violated professional duties. The Administrative Court dismissed the appeal. The complainant then filed an appeal with the Federal Supreme Court, seeking the annulment of the administrative court's judgment and either a referral back to the lower court or a reduction of the fine to CHF 500.--.

Considerations

1. Admissibility of the appeal:

The Federal Supreme Court examines the appeal in public law matters and admits it, as it concerns a final decision of a last cantonal instance and no exception under Art. 83 FSCA applies. The complainant is entitled to file the appeal as the addressee of the contested judgment. However, the complainant's request for a finding that he did not violate professional duties is deemed inadmissible, as this would already be fulfilled by the annulment of the contested judgment. The request for a second exchange of written submissions is rejected due to lack of substantiation.

2. Violation of the right to be heard and procedural guarantees:

The complainant alleges that the lower court violated his right to be heard by failing to adequately justify the sanction imposed. He also objects to the lack of a public hearing and the rejection of his evidence requests. The Federal Supreme Court dismisses these objections:

  • The complainant expressly waived a public hearing, so there is no violation of Art. 6 para. 1 ECHR or Art. 29 Cst.
  • The lower court was entitled to reject evidence requests as they were not relevant to the decision. The overall context of the complainant's statements was not decisive for the question of a violation of professional duties but only relevant for the determination of the sanction. The lower court was therefore entitled to refrain from further evidence-taking.

3. Violation of Art. 12 lit. a FMLA:

The complainant disputes having violated the professional duties under Art. 12 lit. a FMLA. The Federal Supreme Court examines whether his statements were fact-based and whether they exceeded the permissible limits of criticism:

  • Letter dated 4 April 2019: The complainant's statements were made in the context of a recusal motion and related to the presiding judge's conduct in the specific criminal proceedings. Although individual terms such as "malicious" or "sneering" are not in themselves sanctionable, the complainant's overall statements clearly exceeded the permissible limits. The written form of the submission should have allowed him to reconsider his choice of words. The statements were unnecessarily polemical and…