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Professional Conduct

 

Swiss lawyers are governed by the Federal Act on Professional Conduct ("Federal Act on the Freedom of Movement for Lawyers") and by State regulations depending on the location of their main office.

 

Swiss lawyers are under an obligation to comply with the following rules:

 

Duty of Confidentiality

An attorney is subject to criminal and disciplinary sanctions for violating the attorney-client evidentiary privilege.  The attorney is the agent of his client, who is the principal.  It is a general rule of Swiss agency law that the agent must neither use nor disclose information confidentially given to him by the principal or acquired by him during the course fo or on account of his agency.  Thus, the lawyer should not be "indiscreet" when discussing his client's affairs with people not in his law firm.  This protection is granted to present, prospective and former clients.

All information given in confidence are protected by the attorney-client evidentiary privilege, including information (1) the client has requested that it be held "inviolate", (2) whose disclosure would embarrass the client, or (3) whose disclosure would likely be detrimental to the client. 

The purpose of this broad protection is to encourage the client to speak freely with the lawyer and to encourage the lawyer to obtain information beyond that offered by the client.

Exceptions to the attorney-client privilege are:

Inadvertent Disclosure.  The client may inadvertently lose the attorney-client privilege.  For instance, if the client voluntarily reveals a portion of his privileged communications, courts may find a loss of the privilege concerning this part and even the remainder.

Client Consent.  Clients may always waive their confidentiality rights.  If the lawyer wants the client to consent to waive rights to confidentiality, this consent is effective only if the lawyer makes a full disclosure to the client.  In order for the consent to be effective, the lawyer must communicate to the client enough information to permit the client to appreciate the significance of the waiver.

Representation of Client.  In the course of representing the client, the attorney is regularly forced to inform third parties about the identity of his client and specifics of the case.  This case-required disclosure is lawful as long as it is justified by the needs of the client.  For instance, a lawyer may ask a potential witness about his knowledge about the case.  By doing so, the lawyer must reveal that he is representing a specific client.

To Respond to a Charge of Wrongful Conduct.  A lawyer is justified in disclosing client information if necessary to respond to a client's or a third party's accusation of wrongful conduct.

 

Conflicts of Interest

The attorney shall not create a situation which could lead to a conflict of interests.

The rules governing conflict of interest derive, for the most part, from the need to protect client confidences and secrets, and from the duty of client loyalty and zealous representation.

The client may be able to waive the conflict in some instances.  When a conflicts rule is designed to protect only the client, little reason exists to prohibit a lawyer from engaging in the representation when a competent and informed client desires to waive that protection.

Multiple Clients in the Same Matter:  Very often the lawyer represents two or more clients in the same matter.  It is often in the best interest of clients to share the same lawyer.  Such an arrangement reduces legal fees and saves time.  On the other hand, such an arrangement creates the potential for conflict.  Therefore, the lawyer must weigh carefully that his judgment may not be impaired or his loyalty be divided if he accepts or continues the employment.  The crucial question is whether the clients have differing interests.  A lawyer cannot represent in litigation multiple clients with differing interests.  For instance a criminal lawyer should not represent two defendants if one defendant might incriminate the other one.  However, the requirements are less strict in out-of-court cases.  The same lawyer may reprent two opposing parties in contractual negotiations.  He must, however, inform the clients about the potential conflict of interests.

The Lawyer as Director of the Corporate Client:  If a law firm does a substantial amount of work for a particular corporate client, it is not uncommon for one of the partners of the firm also to be a member of the corporation's board of directors.  This dual membership has potential conflicts. The client may be confused as to when the lawyer is giving business or legal advice.  However, this dual role is allowed.  If the fee for the lawyer or his law firm exceeds a certain threshold, public companies are required to disclose the amount of the fee to the Swiss Stock Exchange, which discloses the information to the public. 

Successive Representation:  An attorney cannot represent a new client in a matter adverse to a former client if to do so results in a breach of loyalty or confidence to the former client.  The former client need show no more than that the matters embraced with the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorny previously represented him, the former client.  If a lawyer is disqualified, this disqualification is imputed to other members of the firm.

When a Lawyer Moves From One Firm to Another: Imputed knowledge is not thereafter imputed to another.  

 

Duty of Competence

The attorney has a duty to have the knowledge and experience required to give sound legal advice.  The lawyer must know the specific statutes and regulations, the basic precedents and case law applicable in the concrete case.

The client has the authority to make major decisions - those affecting the merits of the case, or substantially prejudicing the client's rights.  The lawyer is the agent, not the guardian, of the client.  However, the lawyer is entitled to make her own decisions in matters not affecting the merits of the case.  for instance, the lawyer may decided himself about the wording of letter or a court motion drafted and signed by himself.  It is his reputation that is at play too.

 

 

     

Roger Groner, Dr. iur., LL.M., Rechtsanwalt

www.gronerlaw.ch