THE NOTARY AND THE ATTORNEY AS “ADVISORS” UNDER THE AMLA

Notaries and lawyers as "advisers" under the Swiss AMLA – Addendum Why an addendum? The report of 13 September 2026, on the AMLA revision and the Ticino notary as a public official, relied mainly on the statute, the ordinance and the Federal Council's dispatch. In the following weeks new material appeared that significantly changes the picture: the FAQ of the Swiss Federation of Notaries (15 September 2026), the model file and internal guidelines of the SRO SAV/SNV for advisers, three articles in Revue de l'avocat 9/2026 and the commentary by Naef/Benedick in Novità giuridiche 3/2026. The Addendum examines them, corrects the errors and inaccuracies of the first assessment (chapter 23) and extends the analysis to lawyers and to the Ticino figure of the lawyer-notary. The principle The AMLA regulates activities, not professions. Since 1 October 2026 it covers anyone who, on a professional basis and on behalf of third parties, takes part in a financial transaction linked to a listed transaction (Art. 2 para. 3bis and 3ter AMLA): sale or purchase of real estate; formation, management, contributions and distributions of non-operating or foreign entities; sale or purchase of entities through non-operating entities; provision of a registered address. No one is covered merely for being a notary or a lawyer. Notaries A notary who only notarises is not covered: notarisation without ancillary advice is excluded under let. h. The line runs within the firm, between notarisation and advice (structuring, collateral private agreements, fiduciary services). The client account remains the main grey area. The notary's duty to act concerns notarisation, not ancillary advice, which the notary may decline. Lawyers Lawyers are structurally more exposed: they have no exception equivalent to let. h, and only litigation is fully excluded. For lawyers active in real estate, corporate or fiduciary matters, SRO membership will often be the rule. For the lawyer-notary each service must be qualified separately. Thresholds The most significant correction concerns Art. 12f AMLO. The thresholds count only covered activity: notarisation without ancillary advice, transactions below CHF 5 million paid through Swiss banks (let. b) and non-listed transactions are excluded. The risk therefore lies not in the number of deeds but in the few high-value or cross-border transactions: a single transaction above CHF 5 million with ancillary advice is enough. Staying below the thresholds is nevertheless not a guaranteed safe harbour. Secrecy and reporting For lawyers and notaries acting as advisers, the duty to report to MROS applies only where a financial transaction is carried out on behalf of the client and the information is not covered by professional secrecy (Art. 9 para. 2 AMLA). The right to report under Art. 305ter para. 2 SCC does not apply to advisers. If a suspicion cannot be dispelled, the mandate must be declined or terminated. Special functions Executors, estate administrators and liquidators, deputies and holders of a power of attorney for incapacity are not covered merely because of the reform; transactions falling outside the function may be. A power of attorney with management powers is the most exposed case. The Addendum also addresses securities held in custody, escrow, trusts, files opened before 1 October 2026 and the shift from the adviser regime to the financial intermediary regime. Deadlines and costs Anyone already carrying out a covered activity on 1 October 2026 must apply for SRO membership by 1 December 2026; anyone exceeding the thresholds later, within two months. Due diligence duties apply from 1 October 2026. Basic annual costs at the SRO SAV/SNV are CHF 790, plus admission fee, training and audits. Carrying out a covered activity without membership is punishable even if negligent. Practical tools The Addendum offers a road map for file management, a commented reading of the SRO templates, checklists for notaries, lawyers, lawyer-notaries and non-affiliated practitioners and, as Annex A, a draft self-assessment (pre-triage) form for sole practitioners, firms organised as companies and associations of independent practitioners. Conclusion A Ticino notary who notarises without ancillary advice and handles no funds beyond those linked to the deed does not need to join an SRO. Anyone who also provides contractual, corporate or fiduciary advice must carry out a documented assessment. Until practice settles, precautionary membership remains a legitimate risk-management choice. Even those who are not affiliated must be able to show why they are not covered. The Addendum reflects the author's opinion and is not legal advice. The full text is in Italian. Comments are welcome.

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