PART II: Being a solo commercial litigator in Switzerland, is this even possible?
In a LinkedIn post dated 15 January 2018, I gave a short overview of certain features of commercial litigations before Swiss courts, which, unlike in the US, make it possible for solo practitioners in Switzerland to handle important and complex commercial litigations. In this new post, I would like to discuss certain other factors that play an important role in this regard.
First, and not surprisingly, certain technological groundbreaking developments have to be mentioned, which fundamentally changed the way in which lawyers are operating.
(i) The first commercial mobile phone, the Motorola DynaTAC 8000X, hit the stores in September 1983. This mobile phone cost approximately USD 4,000, and it was not exactly what you would call „easy to carry and use“. Although the quality of mobile phones improved massively in the eighties and nineties, in Switzerland there were, at the beginning of the 1990s, still not many people who owned a mobile phone. At the beginning of the nineties, for most lawyers in Switzerland, it was still the case that they received their professional telephone calls in their physical office. If they were not in the office, but for example skiing or on a hike in the mountains, they could not be reached by phone. This has changed dramatically in the meantime. Today, smartphones are almost 100% common in Switzerland, and you can be reached by telephone not only throughout Switzerland, but also abroad at any time and at low costs (keyword: WhatsApp). A physical presence of the lawyer or his or her deputies, such as telephone operators or assistants, in the office is therefore no longer necessary to be reachable by telephone.
(ii) In the nineties, communication by fax was still widespread in Swiss law firms. As is well known, fax machines could hardly be carried in a backpack during a mountain hike. At that time, a physical presence in the law firm was therefore required to be able to receive or send faxes. Nowadays, faxes are practically no longer used in Swiss law firms, and so-called millennials like my sons no longer know what a fax machine is at all. Nowadays, documents to be sent electronically are scanned and sent by email, and due to the dramatic proliferation of smartphones and certain applications (again, WhatsApp, for example), today, emails can be received and sent anytime, anywhere.
(iii) The use of letter mail in Swiss law firms has declined dramatically over the last thirty years. Today, only highly confidential documents and correspondence with authorities are actually dealt with by letter post. And sooner or later, correspondence with Swiss authorities will no longer take place via physical mail, but rather electronically. In any case, correspondence with clients and lawyers is nowadays almost exclusively by email, which, as mentioned above, can be received and sent anywhere and at any time. This means that the handling of correspondence with and by attorneys is nowadays largely unrelated to the previous effort (receiving physical mail in the law firm, dictating letters, etc.), but can be handled quickly, efficiently, independently of location, and at low cost.
(iv) In the mid-1990s, when I began my professional career in a large Zurich business law firm, not only the older partners, but practically all attorneys still dictated not only correspondence, but also legal briefs. At that time, therefore, typists were needed for lawyers to be able to do their work. This aspect has also changed fundamentally. Today, there are probably only very few younger lawyers who still dictate their texts. This development is probably due to the triumphant advance of email. As mentioned above, correspondence today is mostly done by email, and it is simply not efficient not to write your emails yourself, but to dictate them and then have them written. My theory is that writing emails probably educated the lawyers not only in Switzerland, but worldwide to write their own texts. Against this background, it is therefore no longer necessary today for lawyers to use the services of typists.
(v) Not so long ago, law firms in Switzerland did not have online access to computer systems and documents for technical and other reasons. At that time, the only way to fully work as a lawyer was to be physically present in the office. Today this is different. Today, thanks to remote access, you can fully work as a lawyer as soon as you can log on to the Internet, for example via the personal hot spot of a mobile phone.
(vi) Another area that has seen an enormous development over the last two decades is the access to information on the Internet. This can be illustrated well by the example of the circumstance that today, in Switzerland, the version of Swiss federal laws uploaded on the Internet is taking precedent over the physical edition of such laws. Not only is the online version of the federal laws free of charge, but it is also no longer necessary to constantly adapt the physical collection of laws to new developments and changes, a task with which one liked to employ assistants or trainee lawyers at the time. This change concerns not only Swiss federal laws, but also certain cantonal legislations as well as the case law of various Swiss courts. In order to give another example for illustration purposes, a physical edition of the collection of the Swiss Federal Supreme Court’s leading cases had to be part of the library of every Swiss law firm in the past. Those days are over. Not only are all such cases now available on the website of the Swiss Federal Supreme Court (in searchable form), but from 2000 onwards, the Federal Supreme Court publishes practically all the judgments on the Internet on a daily basis. Nowadays, it is no longer necessary to have an extensive physical library at your disposal as a Swiss lawyer in order to carry out legal research. Today, such searches can be done online, regardless of the geographical location of the lawyer.
(vii) Thanks to the increasing division of labour and increasing competitive pressure, there is a wide range of efficient service providers in business centers such as Zurich to whom certain tasks can be outsourced on attractive terms. This applies, for example, to the printing and binding of legal submissions and their exhibits, which is important in commercial litigations. Thanks to appropriate providers, it is not necessary to finance a printing department as a law firm.
In the present context, I was asked whether it was not problematic to have legal documents printed and bound by an external company because of the attorney-client privilege. I have, of course, thought about this, and I do not think that the legal secrecy obligation under which Swiss lawyers are operating as well as the legitimate desire for confidentiality in general are a problem in the present context.
As far as the practical aspect is concerned, i.e., the legitimate desire of clients and lawyers for general confidentiality, I think that the following should be considered: Really highly confidential documents that are problematic for the client’s position, or where weaknesses in the client’s position are discussed, will never be handed over to an external provider for copying or other tasks. Such documents never leave the law firm or if they do, then only by letter post or even only by personal delivery. However, legal submissions and their exhibits, such as a statement of claim or statement of defense, do not fall under this category. Such documents are unproblematic in that they are drafted and screened to put the client’s case in a good light and do not shoot the client’s back, so to speak. In addition, these documents are in any case made available not only to the court but also to the counterparty, and civil proceedings in Switzerland are generally public. The practical aspect mentioned above is therefore not really a problem in the present context, although it is of course necessary to ensure that lawyers work only with trusting and conscientious suppliers.
With regard to the legal aspect, i.e., the confidentiality obligation under which Swiss lawyers are operating, it should be noted that it is permissible under Swiss law if and when lawyers retain the services of auxiliary persons. In this regard, there is an interesting judgment of the Zurich District Court dated 18 November 2015, which did not concern a lawyer, but a doctor, who is subject to a strict doctor’s secret under Swiss law. The Swiss doctor in this case had sent a recorded medical exam analysis to an external typing company located in Germany with the task of typing the report from the tape recording. The Zurich District Court decided that this is permitted under Swiss law. Among other things, the District Court has ruled that the position of the auxiliary person is not decisive and that no employment relationship with the doctor is required. In the opinion of the District Court, it is sufficient for the auxiliary person to support the physician in any function in fulfilling his or her duties. The Zurich District Court confirmed that data may flow freely between the physician and his or her auxiliary person. The fact that this judgment affects a doctor and not a lawyer is irrelevant, because under Swiss law the professional secrecy of the doctor is no less important and strict than the professional secrecy of the lawyer.
(viii) Another area in which much has changed in recent years is marketing. At the time, Swiss law was extremely restrictive with regard to what kind of publicity and marketing activities were open to attorneys. This restrictive stance has loosened up quite significantly, although the situation in Switzerland is, fortunately, still very far from US circumstances in this regard. But still, in terms of advertising, lawyers are allowed to do more in Switzerland today, and technological progress has also changed a great deal in this area. Whereas in the past advertising measures such as circulars used to be labour-intensive and expensive, social media can now be used to advertise very efficiently and cheaply, not only locally, regionally or nationally, but also globally.
Apart from the technological and organisational changes discussed above, another question repeatedly put to me is also interesting with regard to the topic discussed in this post, being the question whether it is not a problem as an individual lawyer to be all alone and not to have a deputy. Well, first of all, it should be mentioned that as a solo attorney in Zurich, you are obligated to name a deputy to the Supervisory Commission for Zurich lawyers. Hence, as a Zurich lawyer, if you are absent for a longer period of time, e.g., due to a serious illness, a colleague will step in. But it is true that as a solo practitioner, you can no longer go on vacation without being reachable for your clients and without working during your holidays, if necessary, despite judicial vacations reducing the activity of Swiss courts from mid-July to mid-August. But is this at all possible as a commercial litigator today, whether you work alone or in a law firm with several lawyers? Actually, I do not think so. In complex cases, it is in any event not possible or at least not efficient to ask a colleague, who usually has enough on his or her plate already, to get up to speed on short notice. And given the increased cost consciousness, less and less clients are willing to pay for a permanent sidekick on a case, who could take over the matter without a cold start at any point in time. And then there is, obviously, also the above-mentioned circumstance that modern technology today makes it possible to be accessible and work at any time and from any place.
Finally, in order to avoid any misunderstandings, I would like to stress that I do not take the view that working as a solo practitioner is more appropriate in relation to commercial disputes. On the contrary, I believe that all possible forms of cooperation are justified and have their advantages and disadvantages. As far as the disadvantages of being solo are concerned, there is, for example, the circumstance that big ticket international commercial arbitrations can, when it comes to representing a party to such an arbitration, only be handled by larger teams, because such arbitrations, unlike Swiss domestic commercial litigations, do know time-consuming features of Anglo-Saxon disputes management, such as a certain form of document production as well oral hearings, including cross examinations. Another disadvantage for a solo practitioner is that he or she cannot delegate and leverage his or her business. His or her business is constricted to his or her personal capacity, which makes it necessary, among other things, to be very selective with regard to mandates, in terms of subject matters (a single legal brain cannot cover and be up to date in all legal fields), clients (a solo practitioner cannot afford taking on clients who will not pay the invoices, etc.), capacity (as mentioned, being solo, you cannot delegate), etc. So, what I am concerned with in this and my first post on this topic dated 15 January 2018 is to show that it is possible to conduct complex commercial litigations in Switzerland, even as a solo practitioner, what, according to some of the questions I have been asked over the last couple of years, does not seem to be clear to everyone, not even to all the lawyers. With this in mind, I hope that my post from 15 January 2018 and this new post are an interesting read and will help to clarify the situation.
This article has first been published on LinkedIn on 26 January 2018.
PHH, Zurich, 29 January 2018 (www.haberbeck.ch)
The information contained in this post is for general informational purposes only and is not intended to constitute legal advice. Readers of this post should not take any actions or decisions without seeking specific legal advice.
Rechtsgebiete: Allgemeines Vertragsrecht