Electronic appeal in Switzerland – attorneys remain liable

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In a recent decision (6B_691/2012 of February 21th, 2013), the Swiss Supreme Court confirmed that Swiss attorneys remain liable for the submission of electronic appeals. In this case, the attorney who has not verified that the appeal was properly received by the authority or the Court is liable. On the contrary, as technical service providers cannot guarantee a 100% available service, the submission of an electronic appeal is considered as a risk that shall be borne by the attorney if the provider gets down and cannot deliver the data to the court. The Swiss Supreme Court, reminds that the use of technologies contains risks. Therefore, the attorney remain liable :

  • even when there is no fault on the attorney;
  • even if the server gets down the last day of the deadline for submitting the documents to the Court
  • even if the software installed on the attorney’s computer contains bugs, an older or even an incompatible version that prevent the attorney to connect properly to the provided services.

To avoid any liability in case of any doubt, the attorney shall submit a separate documentation to the authority or the Court … by mail ! If the attorney does not comply with this obligation, he could face the consequence of this negligence which means that the appeal would be considered as a belated action with no possibility to require from the Court a new deadline.

With such opinion, the Swiss Supreme Court does not encourage Swiss lawyers to resort to new technologies. In consequence, this will delay the birth of 100% digital lawyers…

For further details, you can read the full analysis of this decision in French  here.