Friday, June 29, 2007

Time to Raise the Bar on Professional Ethics for Chinese Lawyers? (II)

Duty of Confidentiality

Confidentiality is the bedrock of an open and trusting relationship between a lawyer and his clients. Confidential information is what a lawyer learns from or as a result of representing a client. Such information should be kept strictly confidential and secret unless exceptions apply. See ABA Rule 1.6

The Current Lawyer’s Law and Ethics prohibit a lawyer from divulging “national secrets, clients’ trade secrets, and privacy of parties” learned by the lawyer during representation. What is protected by confidentiality is, as seen, limited to national secrets, trade secrets, and personal privacy; to further comprise the safeguard of confidentiality, personal privacy is not defined and its scope not delineated. In China, personal privacy does not get as much protection as in the west where a higher premium is placed on it. Additionally, in representations where trade secrets are not of concern (i.e. an ordinary breach of contract case), clients are out of luck in term of confidentiality. Simply put, duty of confidentiality as stated in the Current Lawyer’s Law and Ethics does not provide sufficient protection to clients.

Amendments to the Current Lawyer’s Law expand the scope of information to be protected by confidentiality. Article 42 § One maintains the original confidentiality language; but Section Two inserts the difference. It provides that: “With respect to information gathered during the course of the representation which is adverse to clients’ interests, lawyers have no duty to testify and report such information unless…crime or against public interests…”

Positive step forward this amendment is, but this new provision does not go far enough to impose an affirmative duty to maintain the secrecy of information adverse to the interests of clients. Contrary to the ABA Rules, which allow disclosure under limited conditions, the Amended Law states apparently that a lawyer has no duty to disclose under most circumstances (excepting info about criminal activities and that which affects national security and major public interests), which makes such disclosure permissive. Will permissive disclosure of clients’ confidential foster better communication between clients and their lawyers? One surely hopes so. But if I were a client, I’d hesitate talking about certain things, not even with my Chinese lawyer.

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