StPO 127 para. 3 / BGFA 12 lit. c – No multiple defenses
introduction
Lately, conflicts of interest in criminal proceedings have been discussed more often and are increasingly the subject of disputes in court.
Focus on criminal procedural law
According to StPO 127, Paragraph 3 (see box below), legal counsel or defense counsel can represent the interests of several parties involved in the same criminal proceedings within the framework of the law and professional ethics.
In particular, BGFA 12 lit. c (see box below).
Focus on legal law
According to BGFA 12 lit. c. lawyers must avoid any conflict between the interests of their clients and those with whom they have business or personal relationships.
Problem-free situations
The representation of several private plaintiffs by the same lawyer for similar property crimes does not appear to be problematic.
Problematic situations
A conflict of interest can also arise if there is a specific risk that knowledge and skills from a previous client relationship could be used:
The principles of incompatibility also apply to lawyers in the same office or when changing offices:
No multiple defenses
Barring special exceptions, lawyers are not allowed to undertake multiple defenses.
Multiple defenses are not permitted even if the clients agree:
Conflict of Interest Consequences
If the conflict of interest arises, the lawyer must not only give up the mandate in which the conflict of interests is determined, but also all mandates in the case of multiple representation or multiple defense.
Conclusion
The cautious defense attorney will carefully examine the question of a possible conflict of interest before accepting the mandate.
Otherwise he runs the risk of resigning all mandates of the multiple representation, causes the affected mandates troubles and, if predictable, may expose himself to the risk of claims for damages.
Additional information
- Conflict of interest case change of law firm
- Defense necessary
- Primary source
- Innovations to the legal bodies, in: zürcher anwaltsverband, INFO 4/2020, p. 5
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LawMedia editorial team
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Art. 127 StPO
1 The accused, the private prosecutor and the other parties to the proceedings can appoint legal counsel to protect their interests.
2 The parties may call in two or more persons as legal counsel, provided this does not unduly delay the proceedings. In this case, you must designate one of them as the main representative who is authorized to act as a representative before the criminal authorities and whose domicile is the only delivery address.
3 The legal advisor can protect the interests of several parties involved in the same procedure within the limits of the law and professional ethics.
4 The parties can appoint any person of good repute and trustworthy capacity to act as legal advisor; the restrictions of the lawyers’ rights remain reserved.
5 The defense of the accused is reserved for lawyers who, according to the Lawyers Act of 23 June 20001 are entitled to represent parties before the judicial authorities; We reserve the right to deviate from the provisions of the cantons for defense in criminal infringement proceedings.
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Art. 12 BGFA professional rules
The following professional rules apply to lawyers:
a. They practice their profession carefully and conscientiously.
b. You practice your profession independently, in your own name and at your own risk.
c. They avoid any conflict between the interests of their clientele and those with whom they have business or personal relationships.
d. You can advertise as long as it remains objective and as long as it meets the public’s need for information.
e. Before the end of a legal dispute, you may not conclude any agreement with the client on participation in the litigation gains as a replacement for the fee; they are also not allowed to undertake to waive the fee in the event of an unfavorable conclusion of the procedure.
f. You must take out professional liability insurance in accordance with the type and scope of the risks associated with your activity; the sum insured must be at least one million francs per year; Instead of liability insurance, other, equivalent collateral can be provided.
G. In the canton in which they are entered, they are obliged to defend themselves officially and to act as legal representatives within the framework of the free administration of justice.
H. They keep the assets entrusted to them separate from their own property.
i. When you take on the mandate, you clarify the principles of your invoicing to your clients and inform them periodically or upon request of the amount of the fee owed.
j. They notify the supervisory authority of any change to the data concerning them in the register.
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