Art. 321 SCC and AI vendors as auxiliaries
When can a lawyer put client data into an AI tool without breaching professional secrecy? What the law says, what case law says about IT providers, and what remains open.
Informational only, not legal advice. Results reflect vendors’ public statements on the date checked and our scoring rules. Verify contracts yourself before using any tool with client data.
The rule
Art. 321 of the Swiss Criminal Code punishes lawyers, defence counsel, notaries and other listed professionals, and their auxiliaries, who reveal a secret entrusted to them in their professional capacity. It is prosecuted on complaint, with a custodial sentence of up to three years or a monetary penalty. Disclosure is not punishable with the consent of the person concerned or with written authorisation of the supervisory authority (Art. 321 para. 2).
Separately, Art. 13 BGFA/LLCA binds lawyers to professional secrecy without time limit and requires them to ensure that their auxiliaries respect it (Art. 13 para. 2). The Swiss Bar Association notes that the two secrets are not identical in scope.
Can an AI vendor be an auxiliary?
Case law has treated third parties to whom a lawyer entrusts tasks as auxiliaries. A cantonal data-protection authority summarises a 2019 Federal Supreme Court judgment (2C_1083/2017) as including the external professional who stores and protects the lawyer’s data remotely. The lawyer remains responsible for selecting, instructing and supervising that auxiliary.
Case law dealing specifically with generative-AI tools is still limited. Treat the cases above as the closest guidance, not as a decision on any particular AI product.
What this means in practice
- Prefer vendors that accept auxiliary-person status in the contract and pass it on to their sub-processors.
- Know who can access content in clear text, including model providers (abuse monitoring, logs).
- Check the whole chain: storage location and where the AI model runs.
- Where in doubt, client consent (Art. 321 para. 2) is an alternative, but it should be informed and documented.
SecretSafe scores this criterion 3 only where a vendor publicly states contractual auxiliary status or publishes an external legal opinion. See the methodology.
Official sources
- SR 311.0 Swiss Criminal Code / Code pénal, Art. 321 (Fedlex)
- SR 935.61 BGFA / LLCA, Art. 13 (Fedlex)
- PPDT Jura-Neuchâtel opinion on secrecy-bound outsourcing (cites BGer 2C_1083/2017)
- SAV/FSA Vademecum: professional secrecy of lawyers in the Swiss legal system (PDF)
- AI working group report 2026, Switzerland chapter (PDF)