Amendments to Lawyer's Law Adopted

China's top legislature, the Standing Committee of the People's Congress, adopted amendments to the Lawyer's Law. The amendments should, as reported, bring some much needed good news to criminal lawyers.

One distinct change in the new Law will "make it easier for lawyers to meet criminal suspects and obtain evidence", because "Chinese attorneys have long complained of difficulties in meeting criminal suspects and having access to files and evidence when defending criminal cases."

Attorney-client privilege, a long coveted luxury for Chinese criminal defense lawyers, might become a reality to a certain extent. As reported, "[d]efense attorneys and criminal suspects will not be monitored when they have a conversation ... and defense lawyers are entitled to look up all files and materials relating to the case."

The amendments will also provide immunity to defense lawyers for their in-court comments and remarks. But the immunity can be had to the extent that the comments and remarks "do not threaten national security or slander others." But, as many know, the concept of "national security" is a very fluid one in China.

As the practice of law has gradually become more and more important to the Chinese society, these amendments represent yet another step forward in building a national under the "rule of law."

I will examine the amendments more closely and report other significant changes to the existing Lawyer's Law. Please check out my previous posts (I and II) on the anticipated amendments.

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.

Time to Raise the Professional Ethics Bar for Chinese Lawyers?

You bet!

Undoubtedly, many Chinese lawyers adhere to their code of professional conduct, and they operate with utmost ethical conviction. Co-existing with such honorable professionals in China is, however, an often times unclear set of ethical rules insufficient in regulating a fast growing profession—lawyering. At the end of 2006, China had more than 130,000 lawyers and 13,000 plus lawyer firms. Law on Lawyers of the P. R. China (“Current Lawyer’s Law”) was last amended in 2001. Rules of Professional Ethics and Discipline (“Ethics Rules”) was accordingly revised in 2001 to reflect the changes in the law. On June 24, 2007, amendments to the Old Lawyer’s Law were discussed and some higher standards might be adopted for Chinese lawyers.

Duty of Loyalty

Under the Current Laywer’s Law and Ethics Rule, a lawyer is forbidden to represent both sides of the same conflict. Similar to the American Bar Association Rules (“ABA Rules”), the Chinese rule is a bright line rule, disallowing representation where a concurrent conflict of interests is present.

The new proposed law adds some more restriction to a lawyer’s scope of representation. It requires a lawyer to avoid conflict of interests in joint representations, and to shun conflicts between the lawyer, his close families, and the lawyer’s clients. See Article 43 Draft Amended Law on Lawyers 2007. Obviously, this is a big problem in China where family ties are stronger than those of some other countries, and a close relationship generates a higher possibility for conflict of interests where the lawyer and his client’s interests diverge if the lawyer’s family members are involved in the same transaction in question. This additional requirement is, to my mind, a bold step toward clearly drawing the line in the sand for the lawyer where conflict of interest might surface in his/her practice.

Furthermore, the new amended law expressly calls for lawyers to conduct conflict checks prior to representation. In actual practice, many lawyers probably have already been doing this to avoid conflicts. However, an affirmative duty to run a conflict check sets a bright line rule easier for all to see and follow.

Unfortunately, this amended law still does not address loyalty to former clients. The ABA Rule 1.9 states that a lawyer shall not represent new client in the same or substantially related matter whose interests are materially adverse to a former client absent written informed consent from a former client. Without the affirmative duty of loyalty to former clients, a lawyer can turn on his own clients while not offending his duty of confidentiality to them. Hopefully, this issue would be raised before the formal adoption of the new Law.

Duty of Confidentiality—(to be continued…)