Facts

Unlawfulness of the publication of a temporary professional practice ban in the cantonal official gazette as an additional disciplinary measure The complainant, a lawyer, was reported by the sole heir of an estate for various breaches of duty to the Supervisory Commission for Lawyers of the Canton of SocRA (hereinafter: Supervisory Commission). The allegations included, among other things, the retention of the estate for months, the failure to submit an accounting for an advance payment and the non-payment of an invoice from the estate office. By decision of 23 November 2022, the Supervisory Commission found that the complainant had violated Art. 12 lit. a, lit. h and lit. i of the Federal Act on the Freedom of Movement for Lawyers (FMLA) and imposed a temporary professional practice ban of four months. It also ordered that this ban be published in the official gazette of the Canton of SocRA. The complainant appealed this decision to the Higher Court of the Canton of SocRA, which dismissed the appeal by decision of 7 February 2023. The complainant particularly criticised the consideration of earlier disciplinary measures, some of which dated back more than 15 years, in determining the sanction, as well as the order to publish the professional practice ban in the cantonal official gazette. With an appeal in public law matters, he appealed to the Federal Supreme Court and requested the annulment of the lower court's decision and the waiver of a disciplinary sanction or, at most, the imposition of a warning or reprimand. In the alternative, he requested the disciplining of the respondent 2 (lawyer B.) for a violation of Art. 12 lit. a FMLA. The Federal Supreme Court first examined whether disciplinary measures that had already been deleted from the cantonal lawyers' register could be taken into account when determining new sanctions. It found that while previous case law generally allows the consideration of earlier disciplinary measures, it has not dealt in depth with the question of how to deal with sanctions that have been deleted from the register. The court clarified its case law to the effect that while earlier misconduct – including deleted sanctions – can be taken into account, their significance diminishes with the passage of time. This view is based on teleological considerations, according to which disciplinary law primarily serves to protect the public from problematic behaviour and does not pursue the same rehabilitation objective as criminal law. Furthermore, the register law system of the FMLA does not preclude the consideration of deleted entries, as it only regulates access to the register and does not make any statement about the admissibility of using deleted entries. The criminal law prohibition on using deleted convictions under former Art. 369 para. 7 SCC (former SCC), which was repealed by the Criminal Records Act (CRRA), was also considered not transferable to disciplinary law, as the legislator intended to restrict the importance of the right to be forgotten in disciplinary law. The Federal Supreme Court then examined whether the order to publish the temporary professional practice ban in the cantonal official gazette as an additional disciplinary measure is lawful. It found that the FMLA exhaustively regulates disciplinary measures against lawyers (Art. 17 FMLA) and does not provide for the publication of such a measure in the cantonal official gazette. The publication of a professional practice ban has an independent repressive effect that goes beyond the actual sanction and can be described as a "pillory effect\". This effect is neither necessary to enforce the professional practice ban nor is it provided for in the FMLA. Rather, the publication serves to permanently impair the professional reputation of the sanctioned person, which goes beyond the purpose of disciplinary law. The Federal Supreme Court therefore qualified the publication as an independent, repressive measure that is contrary to the exhaustive regulation of the FMLA and violates the principle of the primacy of federal law (Art. 49 para. 1 Cst.). The Federal Supreme Court concluded that while the lower court was not to be criticised for taking into account earlier disciplinary measures, some of which dated back more than 15 years, in determining the sanction, the order to publish the professional practice ban in the cantonal official gazette was contrary to federal law and therefore had to be annulled. The lawyer's appeal was thus partially upheld. Finally, the Federal Supreme Court confirmed that the lower court had rightly ordered compensation for costs in favour of…