ACLA explanation of reforms to the Lawyers Code of Conduct

Explanation of the Lawyers Professional Code of Conduct (draft revisions for solicitation of comments)

I. The need for revision of the "Lawyers Professional Code of Conduct"

The Third Plenum of the Party's 18th Congress raised higher requirements for strengthening the establishment of lawyers' professional ethics and regulating lawyers' professional conduct. Since the December 27, 2009 revisions to the Lawyers' Code of Conduct were passed at the second session of the seventh board and became implemented, they have played an important roles such as in regulating lawyers professional conduct and strengthening supervision of lawyers' practice. But as the legal profession has developed in recent years,some new situations and problems have emerged in lawyers' practice such as lawyers not respecting professional ethics, a lack of concern for integrity, and not following the law to perform duties, or not fully performing duties in practice and conduct harmful to clients' or parties' rights and interests has sometimes occurred. Some lawyers do not follow confidentiality obligations, casually releasing, disclosing and disseminating client and party secrets and private information which they have acquired as a result of the representation, and certain lawyers have even come to challenge the bottom line of the law, maliciously using litigation rights, encouraging and aiding the incitement of public opinion, instigating pressure on the case-handling organs. A small number of lawyers do not respect courtroom and arbitration tribunal discipline, seriously disrupting litigation order and social stability. And there are also those who have improper contact with judicial personnel, transferring interests, serving as judicial brokers. The existence of these problems has a serious impact on judicial fairness, harming the reputation and image of lawyers. And the Lawyers Code of Conduct is unable to effectively regulate these emerging situations and problems. Therefore, revising and improving the Lawyers Code of Professional Conduct, is a necessary requirement for lawyers associations implementation the spirit of the 18th Party Congress' third plenum and allocation for the central party commission's "Deepening reforms of the legal system'; it is an urgent requirement for resolving the problems that the public and society have vigorously expressed regarding lawyers, of strengthening the establishment of lawyers professional ethics, and of raising the level of lawyers lawful, standardized practice with integrity.

II, Principle Content of the Revisions

The focus of this round of revisions is directed at supplements and improvements regarding new circumstances and issues that have emerged as to illegality and misconduct by lawyers. The principle content of the revisions is as follows:

(1) Address the problem of some lawyers who do not respect professional ethics, lack concern for integrity and do not lawfully perform their duties or do not fulfill their obligation of service, harming their clients' interests. The revisions add lawyers duty of loyalty to chapter II on basic norms for conduct in lawyers' practice: lawyers shall be loyal to the Party, to their Nation, to the People, to the Constitution and laws, and to performing the duties and obligations of Socialist legal workers with Chinese characteristics （article 5） Lawyers duty to 'practice for the people': lawyers shall persist in practicing for the people, serving the people, and conscientiously taking social responsibility; earnestly performing legal aid obligations, actively participating in public interest activities, and striving to be in touch with the people, in service of the people, at the convenience of the people and for the interest of the people (article 6); Second is adding to Section 3 of Chapter IV, on preventing harms or unlawful usurpation of clients' or parties' rights and interests, that lawyers must not direct a party or related person to transfer a dispute via a fictional transaction; or conceal ongoing litigation or arbitration ,

(2) Addressing the problems of some lawyers not respecting their duty to preserve confidentiality, disclosing, revealing or disseminating at will clients' or parties' confidential and private information. . In Chapter IV of the Amendment on norms for the relationship of lawyers and clients or parties, a single addition has been made saying that lawyers shall protect clients' or parties' confidential or private information acquired in practice, and must not reveal or disseminate clients' or parties' commercial secrets, private personal information or other circumstances or information they do not wish disclosed, either during the case or after it is concluded, without having gotten authorization or consent of the client or party. Provisions for non-public trial must not be violated by revealing or disseminating case circumstances touching on parties' personal privacy or commercial secrets, trial information or litigation documents, either during the case or after its conclusion. [Lawyers] must not, for the purpose of influencing a case outcome, either before in-court proceedings or before the trial is concluded, reveal or disseminate important case information, litigation documents, evidence materials, defense or representation opinions; or reveal case file information to third parties (Article 49); lawyers continue to have a duty of confidentiality after the conclusion of the representation (Article 60), and a law firm's other lawyers and support staff also have a duty to protect the confidentiality of confidential information learned about the representation (article 61).

(3) Addressing the problem of individual lawyers not objective, unfair and imprudent judicial commentary, encouraging the inflammation of public opinion, inciting putting pressure on the case handling organs, influencing the organs' handling of the case in accordance with law. FIrst, in Chapter II of the Amendment on basic norms for lawyers' professional conduct, a duty to speak and act cautiously has been added; lawyers shall speak and act cautiously, objectively, fairly and prudently, protect state secrets and parties' commercial secrets and personal privacy (article 9); It is added that lawyers must not put pressure on case handling organs by linking demonstrations, encouraging the inflammation of public opinion or other improper means, so as to influence the case-handling organs' handling of the case (Article 11). Second, in Chapter 5 on norms for participation in litigation or arbitration a single provision calls for objective, fair and prudent judicial commentary. It is clearly provided: Lawyers must not make untrue or misleading publicity or comments, or disparage, vilify, defame or slander relevant case handling organs， their staff or the parties' reputations, so as to influence the handling of the case in accordance with law (article 84). Lawyers shall prudently use the internet and other media to express commentary, and must not use the internet or other media to express radical or improper commentary on cases or public matters, or attack or disparage our nation's legal system, political system and Party guidelines, policies; and must not call for, or unite others, to create a surge of public opinion and pressure on a case one is handling, or organize or participate in an online gatherings, observations support or other inappropriate ways of using the internet or other media, influencing judicial organs handling of a case (article 85).

(4) Addressing the problem of a minority of lawyers not respecting the discipline of courts and arbitration tribunals, seriously disrupting litigation procedures and social stability. The Ammendment, in the form of a single provision, clearly provides that lawyers shall obey court and arbitration tribunal discipline, and following the times for court appearances, time limits for presenting evidence, times for submitting legal documents as well as other procedural rules; respect judges and arbiters, follow the instructions of judges and arbiters, and must not violate court or arbitration tribunal discipline by improper methods such as refusing to defend in court or withdrawing from court without permission, disrupting courtroom procedures, and disturbing the normal conduct of litigation or arbitration activities (article 72); [Lawyers] must not incite or instigate others to disrupt order in court or in an arbitration tribunal (article 73); lawyers must not express, or direct or entice others to express, speech that disrupts the normal conduct of litigation or arbitration activities; and must not direct or entice clients to abuse their litigation rights to delay, obstruct or disrupt the normal conduct of litigation activities (article 74) and must also not violate legal provisions during the investigation, prosecution or trial phases such as those on meeting clients, investigation, reading case files, or conducting a defense at trial, to disrupt the normal conduct of litigation activity (article 75).

(5) Addressing the problem of a minority of lawyers having improper conduct with judicial personnel so that rights transfer relationship occur, and they serve as judicial brokers, seriously impacting judicial fairness. First, in Chapter II of the Amendment basic norms of lawyers professional conduct, the basic norms for interaction between lawyers and judicial personnel are clarified, lawyers shall establish normal relationships of mutual respect, mutual supervision and positive interactions with judicial personnel, follow court and arbitration tribunal discipline, preserve court and arbitration tribunal order, and jointly preserve judicial authority and increase judicial credibility (article 10); Second is a single provision in the norms for lawyers participating in litigation or arbitration (Chapter V) for lawyers relationships with judicial personnel. Added that lawyers in the course of soliciting or handling cases must not actively bring up their special relationships with judicial personnel such as being friends or family, classmates, students or teachers or former colleagues. Where judicial personnel responsible for handling a case introduce the case to a lawyer, the lawyer shall refuse it. Where parties know that a lawyer has a special relationship with judicial personnel relevant to the case such as being friends or relatives, classmates, teacher or student, or former colleagues, and request that the lawyer use this special relationship to influence the case, the lawyer shall refuse (article 76); There should be no interests between lawyers and judicial personnel handling the case, and the party must not be induced, hinted, or misled to have this type of relationship with the judicial personnel responsible for handling the case (article 77), resolutely prohibiting lawyers from serving as 'judicial brokers'.

(6) Addressing the problem of some lawyers forming their own 'huddle' groups, or participating in unlawful social organizational activities. To control this problem, the Amendment first adds in Chapter II on the basic practice norms for lawyers, that lawyers must not initiate, participate in or support organizations or activities inappropriate for the duties and identity of a lawyer or impacting the social image of lawyers (Article 13), and at the same time, in add to Chapter VII, on norms for lawyers' relationships with law firms, that law firms must not tolerate or fail to check their lawyers from initiating, participating in or supporting organizations or activities inappropriate for the duties and identity of a lawyer or impacting the social image of lawyers (article 107) . Further, so as to give lawyers a remedial channel for appropriately reflecting problems encountered in practice, the amendments add to chapter II on the basic norms for lawyers' practice that lawyers shall make a complaint or reflect problems that exist in investigation, prosecution or trial work, using statutory methods or to the judicial administrative organ or lawyers association; and they must not employ conduct inappropriate for lawyers duties and identity or influencing the image of the legal profession (article 17).

The draft revisions also carry out amendment of conflict of interests through comparison with the "Methods for Punishing Illegal Conduct by Lawyers and Law Firms"