The independence of the lawyer

The independence of the lawyer

"Why shouldn't a lawyer be employed by the bank he represents in court?

Eliane, Geneva

In Switzerland, the legal profession has been governed by the Federal Law on the Free Movement of Lawyers (LLCA) since 2000. This law lays down the rules to which lawyers are subject, and provides that a supervisory authority may impose disciplinary measures in the event of a breach of these provisions. In the Republic and Canton of Geneva, the LLCA has been given concrete form in the Law on the Legal Profession (LPAv).

In particular, art. 12 LLCA sets out the professional rules to which lawyers are subject. Under this provision, lawyers exercise their professional activities in complete independence, in their own name and under their own responsibility.

According to our legislation, the authorities have the power to determine the boundaries of this independence, taking account primarily of the problems of conflicts of interest. In a recent decision concerning a salaried lawyer, the Federal Supreme Court clarified this notion of independence: according to art. 4 LLCA, any lawyer entered in a cantonal register of lawyers may practice legal representation in Switzerland without further authorisation. Under art. 8 LLCA, in order to be entered in the register of lawyers, a lawyer must be able to practise independently; he or she may only be employed by persons who are themselves entered in a cantonal register. A lawyer who is employed by an organisation recognised as being in the public interest may apply to be entered in the register, provided in particular that he limits his activities as a lawyer to mandates strictly related to the aims of the organisation. According to our Supreme Court, a lack of independence is presumed when a lawyer is employed. However, this presumption may be rebutted if the lawyer provides sufficient information to prove that he is independent in his legal representation. There are, for example, salaried lawyers (part-time or full-time) who practise law in their spare time.