Opinions on Lawyers Handling Defense Representation Work in Cases of Crimes Involving Underworld Forces

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Lawyers Bulletin (2018)No. 9

All provincial, autonomous region, or directly governed municipality lawyers associations, and the lawyers association of the Xinjiang Production and Construction Corps:

The following Opinions are submitted so as to implement the requirements of the Party Central Committee's notice on the special crackdown to clear away organized crime and eliminate vice, to guide lawyers to handle cases of crimes involving underworld forces in strict accordance with law, and to give full play to the important role of lawyers in the special crackdown to clear away organized crime and eliminate vice.

I. Fully recognize the major significance of the special crackdown to clear away organized crime and eliminate vice.

The nationwide crackdown to clear away organized crime and eliminate vice is a major decision of the Party Central Committee with Comrade Xi Jinping as its core, it concerns social stability and the nation's lasting peace and order, it concerns the support of the people and solidifying power at the basic-levels, and it concerns the carrying of the great struggle, constructing the great project, advancing great enterprise, and realizing the great dream. Lawyers are socialist legal workers and lawfully carry out defense representation in cases of crimes involving underworld forces, making it so that cases of crimes involving underworld forces withstand the scrutiny of history, the scrutiny of the people, and public scrutiny; they are a necessary condition for realizing the unification of legal and social efficacy in the special crackdown to clear away organized crime and eliminate vice. Each region's lawyers association and criminal defense lawyers should further boost their political stance, fully recognizing the major significance of carrying out the special crackdown to clear away organized crime and eliminate vice, strengthening the 'four awarenesses', and uniformly putting their thoughts and actions with the Party Central Committee's deployment. Each region's lawyers association should actively organize and carry out special training, guiding and assisting criminal defense attorneys to study in depth and correctly grasp the central government’s requirements for deployment in the special campaigns to clear away organized crime and eliminate vice; and correctly grasp the provisions of the “Criminal Law”, “Criminal Procedure Law”, and relevant judicial interpretations on elements of joint crimes, criminal groups, and crimes involving organized crime and vice; and grasping the spirit of criminal justice policies such as the spirit CPC Central Committee and the State Council’s Notice on the special crackdown to clear away organized crime and eliminate vice and the Guiding Opinions on several issues concerning the handling cases of crimes involving underworld forces. Organize the prsidents of lawyers associations, members of criminal defense committees, and core criminal defense lawyers to actively participate in relevant judicial organ's tranings and discussion activities; jointly researching and drafting handbooks for lawyers handling defense representation in cases of crimes involving underworld forces, shaping common understanding of legal policies, strengthening united implementation, seeking to obtain the best possible politic efficacy, legal efficacy, and social efficacy.

II. Lawful Performance of Defense Representation Duties.

(1) Lawful acceptance of retention. Lawyers serving as defenders or agents ad litem in cases of crimes involving underworld forces must comply with all of the law firm's systems for uniform acceptance of cases, signing written retention contracts, and fee collection. A single lawyer must not defend two or more criminal suspects or defendants in the same case, and must not defend two or more criminal suspects or defendants who are not in the same case but involve related crimes; and where the same law firm accepts the retention of two or more criminal suspect or defendant in the same case, separately appointing different lawyers to serve as defenders, they must inform the clients and get their consent. Without being retained by a party or appointed by a legal aid institution; one must not act as a lawyer to provide legal services to a party, enter a case, or interfere with lawful case handling.

(2) Lawfully discharging the duty to do a good job of defense representation. Lawyers handling defense representation work in cases of crimes involving underworld forces shall place great emphasis on pretrial preparation work, carrying out client meetings, reading the case file, and investigating to collect evidence in accordance with law, and submit high quality defense representation opinions. Where there is evidence that the investigating organs illegally collected evidence, an application should be lawfully made for the exclusion of illegal evidence; where witness testimony might impact the determination of facts, an application shall be lawfully made for witnesses to appear in court to testify; important evidence shall be lawfully collected. During court procedures correctly grasp rules for asking questions and debating evidence at hearings, have a handle on sufficient techniques for courtroom debate, and truly increase the capacity for courtroom debate. Lawyers defense efforts at court should have clear viewpoints, coherent organization, tight logic, and be forcefully persuasive. Be good at communicating about circumstances with parties, judges, and prosecutors as necessary, and do defense work with a rational and peaceful mindset, ensuring that full play is given to lawyers' role and trial is smoothly conducted.

(3) Lawfully Protecting Practice Rights Lawyers' conduct in rights protection should pay attention to means and methods, and persist in being lawful, rational, peaceful, civilized, and in line with regulations, to prevent excessive words and actions. When lawyers practice rights are violated, they shall seek protection through legally-designated channels for relief, and may also apply to the judicial-administrative organs or lawyers associations for organizational protection of their rights. Where a lawyer believes that the organ that is handling the case and its staff are clearly violating the law or obstructing the lawyers' lawful performance of their duties to defend and represent, in violation of the lawyers' practice rights, they may complain to the case-handling organ or to the organ at the level above it, make a complaint appeal or accusation to the people's procuratorate at the same level or the level above, or apply for protection of their practice rights to the municipal-level judicial-administrative organ where they are registered or the the local districted city level lawyers association.

(4) Lawfully regulating practice conduct Lawyers handling defense representation efforts in cases of underworld forces crime must stay strictly within the scope of legally-prescribed lawyers' duties and rights agreed upon in the retention contract, must strictly comply with procedural and substantive regulations, must strictly comply with lawyers professional practice norms, and must perform defense representation duties in accordance with laws and regulations. Distorted or misleading publicity and commentary must not be made about cases currently being handled either by oneself or by other lawyer, and there must be not stirring up of cases; Using methods such as aligning groups, collecting signatures, publishing open letters, organizing online gatherings or support, or, in the name of individual case discussion, creating pressure from public opinion, or attacking or disparaging judicial organs and the justice system; and must not incite, instigate, or organize parties or other persons to go to justice organs or other state organs for sit-ins, holding up signs, unfurling banners, chanting slogans, pleading, surrounding, or so forth, disrupting public order and endangering public safety. Strictly comply with confidentiality obligations; state secrets, clients' or other parties' commercial secrets and personal private information learned of in practice, and other circumstances or information that the client does not want disclosed, must not be disclosed. Provisions must not be violated to disclose or distribute information or materials in case that are not tried in public, or important information and evidence obtained by oneself or other lawyers during the course of handling a case. The rules of supervision facilities should be complied with, and must not be violated in visiting criminal suspects or defendants in custody. Courtroom order should be complied with, respecting judges, procurators, and other case-handling personnel, and where situations of major differences of opinions occur, rules for hearings shall be followed to communicate and coordinate with justice organs and personnel, or to reflect the problem through regular channels and submit opinions.

III. Give play to the role of law firms in supervision and management

Law firms have responsibility for direct oversight and guidance of lawyers from that firm handling defense representation in cases of crimes involving underworld forces, and should strictly manage lawyers from the firm handling defense representation in cases of crimes involving underworld forces, establishing and completing special work systems, be the first checkpoint for lawyers defense representation in cases of crimes involving underworld forces

 (I) Establish a report filing system. After law firms accept a case of underworld forces crimes, they shall report it for filing to the lawyers associations to which they belong and for the place with case jurisdiction, within 15 days. In the process of handling cases, important issues and urgent matters that need coordinated resolution should be promptly reported to the lawyers association, and after the case handling is completed, a written summary should be submitted. Where law firms from different regions accept the same case, they shall report on the case handling separately to the lawyers association to which they belong.

(2) Establish a collective research system. During the course of handling cases, making a not guilty defense or changing the nature of the case, law firms must organize collective research, lawfully present case handling plans and defense representation opinions, to ensure that the spirit and requirements of the special crackdown to clear away organized crime and eliminate vice, as well as ensure that relevant systems are correctly implemented and enforced.

(3) Establish inspection and oversight systems. Law firms should establish systems for inspection and oversight of lawyers handling defense representation in cases of crimes involving underworld forces, designate specialized operations bodies or specialized personnel to conduct inspections of the entire course of defense representation in cases of crimes involving underworld forces and follow up inspections, strengthen oversight of case handling quality and risk management, guide resolution of legal issues encountered during case handling, and promptly stop and correct lawyers' violations of law and rules that are discovered. Strictly manage the firm's official seals, retention agreements, and other such legal documents, to prevent private collection of fees. The management of files for cases of crimes involving underworld forces should be strengthened, to prevent the occurrence of leaks, disclosures, and improper transmission.

IV. Strengthen the supervision and guidance of lawyers handling cases of crimes involving underworld forces.

Each region's lawyers association should strengthen guidance and supervision of lawyers handling defense representation in underworld forces cases, supporting and safeguarding law firms' and lawyers' lawful carrying out of defense representation in cases of crimes involving underworld forces, and ensuring that cases of crimes involving underworld forces are properly handled.

(1) Truly protect lawyers' practice rights. Earnestly sort out issues that lawyers might encounter in every phase of handling defense representation in cases of crimes involving underworld forces, fully using joint conference mechanisms, giving feedback on situations, doing good preparation work, and ensuring that work to clear away organized crime and eliminate vice is conducted smoothly. Strengthen communication and coordination with case-handling organs, establish and improve work mechanisms and relief mechanisms for respecting and safeguarding lawyers' defense representation opinions, and effectively protect the rights of lawyers to meet clients, read the case file, investigate and collect evidence, and to raise questions, challenge evidence, and debate in courts, and ensure that lawyers exercise defense agent rights in accordance with law. When lawyers' practice rights are obstructed or infringed upon, the lawyers association shall promptly conduct an investigation, and where the situation proves true, should promptly carry out communication and coordination with the case handling organs, urging them handle it appropriately and protecting the lawyers lawful practice rights. Where lawyers apply for rights protection across regions, the lawyers' association to which they belong and the lawyers association for the area where the acts take place should strengthen mutual cooperation and mutual support, cooperate and help each other, forming a joint force, and jointly advancing rights protection work in a timely and effective manner. Where lawyers suffer threats, berating, reprisals, or bodily harm, the relevant departments should be coordinated with to lawfully and promptly stop and address it, and necessary protective measures are to be adopted for the lawyers.

(2) Lawfully investigating and handling conduct by lawyers in violation of laws and rules. Conduct of lawyers and law firms that violates practice conduct norms and discipline should be given corresponding professional sanctions in accordance with the association charter and disciplinary rules for members violations of rules. The function of the complaint review center should be employed to initiate investigation procedures when appropriate, catching things early before they get worse, and promptly handling it. In the course of investigating violations of law and rules, one should truly perform their duties, bravely take on responsibility, resolutely overcome fear of handling and unwillingness to handle.

(3) Actively perform supervision and guidance duties. The supervision and guidance of lawyers and law firms handling defence representation in cases of crimes involving underworld forces should be a major political mission. Promptly understand information relevant to the regions lawyers' acceptance of representation, and where it is discovered that acceptance was not uniform or timely recorded in accordance with rules, promptly remind them and make corrections, and major problems should be promptly and proactively reported to the judicial-administrative organs for instruction. Lawyers associations for the province (district, city) with jurisdiction of the case have uniform responsibility for guiding, supervising, and coordinating efforts, and the provincial (district, city) lawyers association to which the law firm and its lawyers belong should actively cooperate, to form effective guidance and supervision mechanisms. All regions' lawyers associations are to establish a special committee on guiding defense representation practice in the special action to clear away organized crime and eliminate vice, strengthening case-handling guidance, coordinating on challenges and issues, and promptly responding to public opinion. Strengthen business training and guidance, and truly enhancing the criminal defense representation techniques and levels.

(4) Encourage excellent criminal defense lawyers to participate in the defense representation work in cases of crimes involving underworld forces. Urge law firms to appoint lawyers with firm political caliber, strong business abilities, who can strictly follow practice discipline and requirements, and have a definite amount of experience, to handle cases of crimes involving underworld forces. Make full use of newspapers, websites, and other such media to publicize correct means, experiences, and success of lawyers' handling of defense representation in cases of crimes involving underworld forces, give commendations and rewards to lawyers making outstanding contributions in the lawful handling of cases of crimes involving underworld forces, and effectively encourage large numbers of excellent lawyers to actively carry out defense representation in cases of crimes involving underworld forces.

All China Lawyers Association

March 6, 2018

 

 

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