The Federal Supreme Court has often had to examine the limits of lawyers’ freedom of speech and tone during hearings, in their written submissions or in the press. In a recent ruling(6B_369/2025 of September 25, 2025), our High Court reminds us lawyers of the consequences of overstepping our prerogatives.
Before coming to that, let’s recall the recitals of a landmark ruling in the legal profession (106 Ia 100 rec. 6b in JdT 1982 I 579ss):
“Lawyers are“servants of the law ” and “collaborators of justice” insofar as it is their duty to advise and support litigants in the pursuit of their legally protected subjective interests. This is a task without which citizens would very often be unable to assert their legal claims, and the implementation of the legal system as a whole would be called into question. The lawyer’s activity also takes on particular importance in criminal proceedings. If the accused is not defended in relatively serious cases, a prerequisite for a fair trial that meets the requirements of a state founded on the rule of law would be lacking (…). At the same time, however, the lawyer is subject to particular obligations in relation to these faculties: he is bound to maintain the dignity of the profession and to observe in this respect the written and unwritten rules which must ensure, in the interests of litigants and the proper functioning of judicial institutions, confidence in his person and in the bar in general (…). But the expressions “servant of the law” and “collaborator of justice” do not mean that lawyers are bound, like judges, to seek objective truth and the just application of the law. His activity undoubtedly contributes to the realization of objective law: indeed, it can be admitted that the judge will be all the more successful in rendering an objective judgment if the lawyer has better defended the opposing subjective interests. But the lawyer is not a state body, nor is he the judge’s assistant, but rather the defender of a party’s interests, and as such acts unilaterally on behalf of his principal. Such is the case, for example, of a defendant’s counsel in a criminal trial. It is the defender’s responsibility to oppose the state’s criminal action, and to strive to obtain his client’s release, or at least the most lenient sentence possible. This is how he fulfils his duty as a collaborator of justice. While trust in the lawyer requires – as noted above – that he maintain his independence from his client, the lawyer’s role – as just described – also implies his independence from the state.
The lawyer must regulate his activity not according to the State’s interest in criminal prosecution, but according to the accused’s interest in obtaining an acquittal or a judgment that is as lenient as possible; for this reason, he must have considerable freedom of decision as to the choice of means of defense. (…) He is forbidden to use illegal means or to resort to means which would defeat the purpose of the proceedings (…)”.
With regard to the opposing parties, the Federal Court reminds us that ” not all means are permitted. Unnecessarily aggressive behaviour does not correspond to the exercise of due care and diligence within the meaning of art. 12 let. a LLCA. “(ATF 130 II 270 consid. 3.2.2; Judgment 2C_354/2021 of August 24, 2021, para. 4.1), ” He must help to ensure that legal disputes are handled appropriately and professionally, and refrain from using unnecessarily hurtful language ” (ATF 131 IV 154 consid. 1.3.2; judgment 2C_307/2019 of January 8, 2020, rec. 5.1.3 and rulings cited). ”
Thus, calling inspectors ” cowboys ” and criticizing them for not ” touching the puck ” in judicial matters before calling the opposing lawyer a ” puppet ” or ” clown ” and a ” daddy’s boy” constitutes a violation of art. 12 LLCA (decision 2C_354/2021 of August 24, 2021, para. 4.1). On the other hand, a lawyer is not guilty of defamation when he reports in the press the sexual abuse suffered by his clients, a potentially defamatory statement, provided he has established his good faith(judgment 7B_2/2022, October 24, 2023). Similarly, defamation has been ruled out when a lawyer, in the course of a closing argument, implies that the opposing party has lied(ATF 118 IV 248).
In the case in point, a lawyer for the plaintiffs, speaking to the court clerk conducting the hearing, called the defendants ” narcissistic perverts who [are] maneuvering, lying and [have] committed financial extortion; sick people who should have themselves examined; [and] who are continuously harassing [their] clients “. In two subsequent letters, the lawyer repeated the defamatory remarks, again calling the defendants ” narcissistic perverts ” and ” sick minds (…) operating in the mode of lies and swindles ” who ” attempt extortion through daily harassment “. The Court of Appeal of the Vaud Cantonal Court upheld the lawyer’s conviction for defamation, sentencing him to 30 days’ fine at 80 fr. per day, suspended for two years on probation, and a fine of 480 fr. (with an alternative custodial sentence of six days in the event of culpable non-payment). It considered that the remarks made were an affront to honour, refusing to admit the lawyer to the proof of the case (i.e. proof of the truth or of his good faith), since he had expressed himself without sufficient reason to say mainly bad things about others. The Federal Court confirmed the reasoning of the cantonal judgment.
The Federal Court’s reasoning is relatively succinct. However, it reminds us that lawyers do not have a “license to defame” and that they must keep their criticism within acceptable limits.
The philosopher Arthur Schopenhauer wrote ” The Art of Always Being Right “, a short work published posthumously in which he set out a series of stratagems (38) for winning a debate. These include theultimate stratagem:argumentum ad personam. Probably not placed last for nothing, it is considered the most disloyal of stratagems and consists of attacking the person himself in an insulting and hurtful way.
It should be noted, however, that this stratagem is deployed when asymmetry of competence or argumentation places the speaker in a position of critical weakness vis-à-vis his opponent, threatening the imminent loss of the debate. Rather than persisting in a factual, rational exchange on the substance of the subject, the tactic consists of an intentional detour: abandoning the initial subject to target and discredit the very person of the interlocutor, with the aim of destabilizing, ridiculing or undermining his credibility and thus securing a perceived rhetorical victory, even if this is achieved at the cost of a total break with the logic and initial purpose of the discussion.
This detour is a last-resort maneuver to transform argumentative failure into image success.
So it comes as no surprise that the Swiss Federal Supreme Court, as guardian of the sacred temple of legal rationality, reminds us in its own way that this stratagem has no place in a lawyer’s defense strategy.
