Lawyers Association Rules for Punishment of Members' Misconduct (provisional)

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS –THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

English中文(简体)

 548 total views,  5 views today

【source】http://www.wzlawyers.cn/webadmin/uploadfile/201704211492738042.pdf

Contents

Chapter I: General Provisions

Chapter II: Disciplinary Committees

Chapter III: Types and Application of Disciplinary Sanctions

Chapter IV: Violations of the Rules and Application of Sanctions

Section 1: Conflicts of Interests

Section 2: Irresponsible Representation

Section 3: Disclosure of Secrets of Private Information

Section 4: Accepting cases or fees in violation of rules

Section V: Unfair Competition

Section 6: Obstruction of Judicial Fairness

Section 7: Influencing the Handling of Cases through Improper Means

Section 8: Violations of Judicial Administrative Management or Professional Management

Section 9: Other Conduct that Should be Sanctioned

Chapter V: Disciplinary Punishment Procedures

Section 1: Case acceptance and filing

Section 2: Recusal

Section 3: Investigation

Section 4: Procedures for Making Discipline Sanctions Decisions

Chapter VI: Review

Chapter VII: Mediation

Chapter VIII: Supplementary Provisions

1999年12月18日第四届全国律协常务理事会第五次会议审议通过;

2004年3月20日第五届全国律协常务理事会第九次会议修订;

(Revised on January 8, 2017 at second meeting the ninth Executive Council of the All China Lawyers Association)

Chapter I: General Provisions

Article 1: These rules are drafted in accordance to "Lawyers' Law of the People's Republic of China," "Measures on the Punishment of Illegal Acts by Lawyers and Law Firms," "Charter of All-China Lawyers' Associations," ("Charter" below) and "Regulations of Lawyers' Professional Conduct" in order to strengthen the professional ethics of lawyers and build professional discipline; regulate the professional acts of lawyers and management of law firms; and regulate lawyers' associations' disciplinary work against members who violate these Rules.

Article 2: These Rules are applicable for disciplinary punishments imposed by the Lawyers Association on members for misconduct.

Article 3: These rules apply where members exhibit the conduct in violations as listed in these Rules; where members have conduct not provided for in these Rules,that violates laws, regulations, or lawyers association management regulations, public morals and good customs,and should be punished.

Article 4: These Rules apply to violations by public lawyers and corporate lawyers.

Article 5: Accusations, reports, and inspection reports that members have violations are called "complaints".

Article 6: Where the victims of members' violation, or persons who can prove that members' violations occurred, make a complaint to the lawyers associations, they are called "complainants".

Article 7: When lawyers associations carry out disciplinary sanctions, they shall comply with the principles of objectivity, justice, and transparency; have the facts as their basis and the law as their measure, strictly enforce the relevant provisions of the lawyers association, and persist in combining education and punishment, and separating investigation and disciplinary action.

Chapter II: Disciplinary Committees

Article 8: The disciplinary committee established by the All China Lawyers Association is responsible for the formulation of rules relevant to the punishment of lawyers conduct, and guides and supervises the punishment work of local lawyers associations.

Article 9: The lawyers associations of all provinces, autonomous regions, directly governed municipalities, and districted cities are to establish disciplinary committees responsible for punishment of members who violate the rules.

Article 10: Investigation and punishment in cases of suspected violations by members is in the jurisdiction of the lawyers association to which that member belonged at the time the violation occurred; where the administrative region for the member being investigated has not yet established a lawyers association, the provincial, autonomous region, or directly governed municipality lawyers association to which that administrative region belongs has jurisdiction. Where after the suspected misconduct occurred the member joined another area's lawyers association, that area's lawyers association shall assist the original lawyers association in conducting an investigation.

Where during the period in which misconduct continued, the member being investigated consecutively joined two or more local lawyers associations,and the involved lawyers associations all have jurisdiction to investigate and punish, the first lawyers association to file a case has jurisdiction.

Article 11: Disputes between local lawyers associations over jurisdiction are to be resolved through consultation between the two sides; where consultation is unsuccessful, the situation will be reported to the lawyers association at the first level above both sides, for designation of jurisdiction.

Where at the time a disciplinary punishment decision made be a lawyer association with jurisdiction takes effect, the punished member has already joined another area's local lawyers association, the disciplinary punishment will be carried out by the lawyers association for the area where he is now practicing.

Article 12: The disciplinary committee is comprised of persons with eight years or more practice experience and relevant work experience, or who possess experience in management of the legal profession, who are familiar with the legal profession. As needed for work, experts from relevant fields may be hired as consultants.

The director and deputy director of the disciplinary committee are to be nominated by the office committee of the president of the lawyers association at the same level, and decided upon by the executive board of directors or the board of directors, and their term is to be the same as that of the board of directors.

The members of the disciplinary committee are selected from the executive board of directors or board of directors for the lawyers association at the same level, by means of election, selection or decision; and their term is to be the same as that of the board of directors.

Article 13: The list of members comprising a disciplinary committee should be reported to the lawyers association at the level above for the record.

Article 14: The daily working bodies of the disciplinary committees are the secretariats and complaint reception centers established by the lawyers associations, and their duties are:

(1) Participating in drafting of rules and systems for receiving and investigating complaints;

(2) Receiving complaints and information;

(3) Conducting preliminary investigation of informer complaints, and pass complaints that meet the requirements to the disciplinary committee for acceptance;

(四)负责向惩戒委员会转交上一级律师协会交办、督办的案件;

(5) responsible for a transferring cases to the lawyers association at the level below and overseeing their handling;

(6) responsible for the work of organizing and coordinating between case-handling organs, judicial-administrative organs, and lawyers associations, and participating in the investigation, handling, and feedback on complaint cases;

(7) Carrying out periodic reports, archiving,bulletins, information disclosure, and follow up on complaint work;

(8) Researching and drafting reports on disciplinary work;

(9) Other work that shall be done by the complaint center.

Chapter III: Types and Application of Disciplinary Sanctions

Article 15: The types of disciplinary punishment imposed by the Lawyers Association on members for violations are:

(1) reprimands;

(2) warnings;

(3) circulation of notices of criticism;

(4) public censure;

(5) suspension of membership rights for between one month and one year;

(6) revocation of membership credentials.

Reprimands are a form of cautionary disciplinary punishment measure, and are the slightest of disciplinary methods, applied to members first negligent violation or where the circumstances of the violation were very slight. Reprimands may be carried out orally or in writing. Where reprimands are oral, a record shall be created and stored.

Warnings are a more minor type of disciplinary punishment, applied where members' conduct already constitutes a violation, but the circumstances are more minor and their should be prompt corrections and caution.

Circulation of criticism and public censure are applied to members' intentional violations, violations where the circumstances are serious, or where there are further violations after a warning or reprimand.

Suspension of membership rights for 6 months - 1 year refers to the temporary stopping of the member's enjoyment of all rights provided in "Lawyers Association Articles of Association" during the period of suspension, but in no way relieves that member of obligations.

Except where reprimands are oral, a written decision must be made for all other punishments.

Article 16: Where the Lawyers Association decides to give a punishment at the warning level or higher, it may simultaneously order the violators to accept special training or a make corrections within a set time period.

Specialized trainings may be carried out as intensive trainings, may be added on at the time of regular trainings, or may be by any other method accepted by the Lawyers Association.

A limited period of redress indicates requiring the violating member to perform specified duties in accordance with the Lawyers Association's punishment decisions or corrective opinion documents, including:

(1) Order the member to return lawyers fees and other fees, taken from their client in violation of rules;

(2) Order the member to return, in part or in full, fees collected from the client, because of inadequate or incompetent services.

(3) Order the member to return original materials or items being held from the client in violation of rules;

(4) Order the member to withdraw or quit a representation due to a conflict of interests;

(5) Order the member to issue a legal receipt to the client, make a written apology to the client, or make an apology in person to them;

(6) Order special redress for a law firm or lawyer that has had repeated occurrences of a certain type of professional misconduct, and where the redress is not completed in accordance with requirements, give a separate penalty item;

(7) Other corrective measures that lawyers associations feel are necessary.

Article 17: Disciplinary punishments of reprimands, warnings, circulation of criticism, public censure, and suspension of membership rights for between one month and one year,are given by provincial, autonomous region, or directly governed municipality lawyers associations or lawyers associations of districted municipalities; revocation of membership credentials is given by provincial, autonomous region, or directly governed municipality lawyers associations; but lawyers associations of districted cities may suggest that the lawyers associations of provinces, autonomous regions, and directly governed municipalities give members disciplinary punishments of revocation of membership rights, in accordance with these rules.

When provincial, autonomous region, or directly governed municipality lawyers associations, or lawyers associations of districted cities, give disciplinary punishments of suspensions of between one month and one year, they may first, or concurrently, recommend that the judicial-administrative organs of the same level lawfully give corresponding administrative punishments of temporarily stopping practice for rectification or ending practice; where a member is given the administrative punishments of temporarily stopping practice for rectification or ending practice, the lawyers association they are in shall directly make a decision to give them a disciplinary punishment of suspension of membership priveleges for the corresponding time period.

When provincial, autonomous region, or directly governed municipality lawyers associations decide to give members who have violated the rules a punishment of revocation of membership credentials, they shall first suggest that the judicial-administrative organs at the same level revoke the members practice certificate; and where a member has their practice certificates in accordance with law, that provincial, autonomous region, or directly governed municipality lawyers association in which that person is a member shall directly make a decision to revoke their membership credentials as an administrative punishment.

Article 18: Where members have any of the following situations, punishments may be mitigated, commuted, or waived:

(1)where it is a first violation and the circumstance are clearly minor or minor;

(2) Where the violation is conceded and they make a sincere written reflection;

(3) Where corrections are conscientiously made of the offending conduct;

(4) Where measures are promptly employed to preventing or reducing negative outcomes.

Article 19: Where members have any of the following situations, punishment shall be heavier:

(1) Where the violation caused serious consequences;

(2) Where investigation was evaded, resisted, or obstructed;

(3) Where there is retaliation against the complainant, witnesses, or relevant persons;

(4) Where they have previously received professional penalties, or administrative punishments from judicial-administrative organs, for violations.

Chapter IV: Violations of the Rules and Application of Sanctions

Section 1: Conflicts of Interests

Article 20: Those with any of the following conflicts of interests are to be given disciplinary punishments of reprimands, warnings, or have a criticism notice circulated; where the circumstances are serious, disciplinary punishments of public censure or suspension of membership rights for up to 3 months are given.

(1) where, in legal matters, a law firm's lawyers serve as representatives to parties on both sides of a case, or lawyers or their families have a conflict of interests;

(2) where a lawyer handling litigation or non-litigation matters, or their close relatives, are the legal representative or agent of the opposing party;

(3) where an employee of an administrative organ, an adjudicator, a procurator or an arbiter, who previously handled or tried a certain matter or cases, handles that matter or case again after becoming a lawyer;

(4) where different lawyers in the same law firm simultaneously serve as the victim's representative and the criminal suspect or defendant's defender in the same criminal case; except for where there is only one law firm in the county district and the parties' consent is obtained beforehand;

(5) Where, in a civil lawsuit, an administrative lawsuit, or in an arbitration, different lawyers from the same law firm simultaneously serve as representatives to the parties on both sides of the dispute; or where a law firm or its employee is a party to the suit and another lawyer in the firm serves as the representative of the opposing party;

(6) Where, in non-litigation matters, lawyers from the same law firm simultaneously serve as representatives to each of the mutually interested parties except for where the parties have jointly retained the law firm;

(7) where, after the client relationship has terminated, the same law firm or the same lawyer is retained by the opposing party in the case for follow-up hearings or other matters in the same case;

(8) Where while a lawyer is serving as a consultant, they represent or defend the consultee unit's opposing party or a party with a conflict of interest,

(9) Where, after lawyers who have previously served as judges or prosecutors leave the people's court or people's procuratorate, they act as to serve as an agent ad litem or defender within two years;

(10) Where lawyers serve as representatives in cases where their law firm's other lawyers serve as arbitrators.

(11) Other situations where based on the lawyer's professional experience and common industry practices, they are able to determine that they should conscientiously withdraw and must not handle the situation due to a conflict of interest.

Article 21: Those engaging in any of the following conduct without obtaining the client's consent are to be given disciplinary punishments of reprimands, warnings, or having a criticism notice circulated.

(1) Accepting retention by one party in civil litigation or arbitration while another lawyer from the same firm is the close relative of the opposing party in that case;

(2) Serving as the criminal suspect's or defendant's defender in a criminal case while another lawyer from the same firm is the close relative of the victim in that case;

(3) The same law firm accepts retention in another matter from the opposing party in a litigation or non-litigation matter they are currently representing someone in;

(4) Where a legal services relationship exists between a law firm and a client, but that client does not request that the lawyers of that firm represent them in a certain lawsuit or arbitration, but the firm's lawyers serve as the representatives of the client's opposing party;

(5) Within one year of terminating representation, lawyers accept retention by an opposing party with interests in the original client;

(6) Other situations similar to those found in subsections (1) through (5) of this Article, and situations as determined based on the lawyers' professional experience and common industry practices.

Section 2: Irresponsible Representation

Article 22: Those who irresponsibly provide legal services, with any of the following situations, are to be given disciplinary punishments of reprimands, warnings, or have a criticism notice circulated; where the circumstances are serious, disciplinary punishments of public censure or suspension of membership rights for between 3 months and one year are given.

(1) Exceeding the scope of retention,to engage in representation activity;

(2) After accepting retention, not providing the agreed upon legal services without legitimate cause, refusing to defend or represent, including: Not promptly investigating or learning about the case; not promptly collecting or applying for protection of evidence; or delaying participation in proceedings or application for enforcement, exercising rights such as to revoke or make objections after the time limits;

(3) Refusing without good cause to accept legal aid cases assigned by a lawfirm or legal aid institution, or after accepting them, delaying or being lackluster in performance, or stopping performance of the legal aid duties without authorization or transferring the case for handling by others without the consent of the law firm or legal aid institution;

(4) Causing legal opinion documents to have major omissions or mistakes due to one's own fault, causing major harms to clients or third parties, or causing harms to the societal public interest.

Article 23: Those who exploit the provision of legal services, with any of the following situations, are to be given disciplinary punishments of reprimands, warnings, or have a criticism notice circulated; where the circumstances are serious, disciplinary punishments of public censure or suspension of membership rights for between 3 months and one year are given.

(1) Exploiting the provision of legal services to facilitate taking the parties' interests; or intentionally harming clients' interests after accepting a retention;

(2) Accepting assets or other benefits from the parties of the other side, maliciously collude with the parties of the other side or third parties, providing information or evidence against the interests of clients to the parties of the other side or third parties, or encroaching the rights and interests of clients;

(3)Threatening or intimidating a party, or retaining materials a party provided, so as to obstruct their ending the retention;

Section 3: Disclosure of Secrets of Private Information

Article 24: Where a party's commercial secrets or personal private information is leaked, a disciplinary punishment of a warning, circulation of a notice of criticism, or public censure; and where the circumstances are serious a suspension of membership rights for between three and six months.

Article 25: Where provisions are violated by disclosing or distributing information or materials in cases that are not tried publicly, or important information and evidence obtained by oneself or other lawyers during the course of handling a case, a disciplinary punishment of circulation of a notice of criticism, public censure, or suspension of membership rights for between six months to one year is to be given; and where circumstances are serious, a disciplinary punishment of revocation of membership credentials is given.

Article 26: Where state secrets are leaked, give a disciplinary punishment of public censure, suspension of membership for between six months and one year, and where circumstances are serious revoke membership credentials.

Section 4: Accepting cases or fees in violation of rules

Article 27: Those who accept cases or fees in violation of the rules in any of the following situations, are to be given disciplinary punishments of reprimands, warnings, or have a criticism notice circulated; where the circumstances are serious, disciplinary punishments of public censure or suspension of membership rights for between one month and one year are given.

(1) not following provisions to sign a written retention contract with the client;

(2) not following provisions to uniformly accept retentions and sign written retention contract and fee contracts with clients, and uniformly accept all expense payments from clients; or not following provisions to uniformly store and use documents, financial instruments, and business archives that are specially for legal services.

(3) Privately accepting retention, privately collecting payments from clients, or accepting fees and assets beyond those provided for or agreed upon; violating provisions on the management of fees for legal services or agreements of fee collection, to raise the fees to be collected of one's own accord;

(4) Engaging in paid legal services in a capacity other than as a lawyer, while in practice;

(5) not issuing a legal receipt to clients for attorney services, or not providing clients with valid proofs of case handling expenses;

(6) collecting fees in violation of standards provided for business areas implementing administrative government price guidance, or collecting fees in violation of risk management provisions.

Article 28: Where assets or other interests are solicited from clients falsely in the name of a judge, procurator, arbiter, or other staff; or for the reason of contacting or thanking a judge, procurator arbiter or other staff; a disciplinary punishment of public censure or suspension of membership rights for three to six months is given.

Section V: Unfair Competition

Article 29: Those who exhibit any of the following improper methods to garner business are to be given disciplinary punishments of reprimands, warnings, or have a criticism notice circulated; where the circumstances are serious, disciplinary punishments of public censure or suspension of membership rights for between one month and one year are given.

(1) Making false promises to clients in order to garner business;

(2) Directly telling or hinting to clients,that one has a special relationship with case handling organs or their staffs;

(3) Using the media, advertisements, or other means to conduct fake or inappropriate promotions;

(4) Garnering business by paying referral fees and other improper methods;

(5) Seeking material or immaterial benefits for case-handling judges, procurators, or arbiters either before or after the matter; or garnering business by giving material or immaterial benefits to relevant personnel before or after the matter.

(6) Garnering business through improper tactics such as violating provisions by establishing offices, distributing advertisements, putting up signs, and so forth in the vicinity of judicial organs or supervised facilities.

Article 30: Where there are any of the following acts of unfair competition, a disciplinary punishment of circulation of a notice of criticism, public censure, or suspension of membership rights for between six months to one year is to be given; and where circumstances are serious, a disciplinary punishment of revocation of membership credentials is given:

(1) Fabricating or disseminating falsehoods, harming or tearing down other lawyers' or law firms' reputations;

(2) Coaxing or instigating parties into raising lawsuits, creating and expanding conflicts, and influencing social stability;

(3) Exploiting relationships with judicial organs, administrative organs, or other organizations with social management functions to carry out unfair competition.

Section 6: Obstruction of Judicial Fairness

Article 31: Those who, while undertaking a case, meet outside of work hours and work places with the case-handling judges, procurators, or arbiters, or other relevant staff members,for improper purposes; or who violate rules by meeting ex parte with judges, procurators, or arbiters; are to be given a disciplinary punishment of suspension of membership rights for between six months and one year; and where the circumstances are serious, have membership credentials revoked.

Article 32: Those who exploit their special relationships with judges, procurators, or arbiters, as well as with other relevant staff members,to look into the case handling organs' internal opinions on the case handling, or to undertake cases the introduce, and influence the handling of cases in accordance with law, are to be given a disciplinary punishment of suspension of membership rights for between six months and one year; and where the circumstances are serious, have membership credentials revoked.

Article 33: Those who bribe, promise to provide benefits, or broker bribery of judges, procurators, arbiters, as well as other relevant staff, or who direct or instigate parties to give bribed, are to be given a disciplinary punishment of suspension of membership rights for between six months and one year; and where the circumstances are serious, have membership credentials revoked.

Section 7: Influencing the Handling of Cases through Improper Means

Article 34: In any of the following situations, impacting the lawful handling of cases by the judicial organs is to be given a disciplinary punishment of suspension of membership rights for between six months and one year, and where circumstances are serious revoke membership credentials.

(1) Providing legal services, entering a case, or interfering with lawful case handling in one's capacity as a lawyer, without being retained by a party or appointed by a legal aid institution;

(2) Conducting distorting or misleading publicity and commentary on cases that they or other lawyers are currently handling, maliciously stirring up the case;

(3) 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;

(4) Instigating, inciting, and organizing parties or other persons to go to judicial organs or other relevant State organs for sit-ins, raising protest signs, unfurling banners, shouting slogans, vocalizing support, looking on, or other methods that disrupt public order and endanger public safety, gathering crowds to make a disturbance, creating an impact and pressuring relevant organs;

(5) Publishing or disseminating speech negating the basic political system and basic principles established by the Constitution or that endangers national security; exploiting the networks and media to stir up discontent with the Party and government; start or participate in organizations that endanger national security, or support, participate in, or carry out activities that endanger national security;

(6) Using means such as twisting the truth of matters or completely going against societal public order and good customs, to publish speech that maliciously defames others, or publishing speech that seriously disrupts the order of courts.

Article 35: In any of the following situations, not following discipline of a court or arbitration tribunal, the rules of a supervised facility, or administrative handling rules,is to be given a disciplinary punishment of suspension of membership rights for between six months and one year, and where circumstances are serious revoke membership credentials.

(1) When meeting with criminal suspects or defendants in custody, violating relevant provisions by bringing the criminal suspect or defendant' s close relatives or other interested persons to the meeting, providing communication tools to a criminal suspect or defendant in custody to use, or deliver goods and documents;

(2) Without legitimate reason, refusing to follow a people's court's notification to appear in court and participate in proceedings, or violating rules of court to leave the courtroom of one's own volition;

(3) Gathering crowds to make a ruckus or charge the courtroom; insulting, defaming, threatening, or hitting judicial personnel or litigation participants; denying the State's characterization of a designated cult organization; or other conduct that seriously disrupts courtroom order.

Article 36: Intentionally providing false evidence to a judicial organ, arbitration establishment, or administrative organ, or coercing or inducing others to provide false evidence, or obstructing the party of the other side from lawfully obtaining evidence; is to be given a disciplinary punishment of suspension of membership rights for between six months and one year, and where circumstances are serious, revocation of membership credentials.

Section 8: Violations of Judicial Administrative Management or Professional Management

Article 37: Where a party's commercial secrets or personal private information is leaked, a disciplinary punishment of a warning, circulation of a notice of criticism, or public censure; and where the circumstances are serious a suspension of membership rights for between three and six months.

Article 38: In any of the following situations,non-compliance with judicial administration and industry management is to be given a disciplinary punishment of suspension of membership rights for between six months and one year, and where circumstances are serious revoke membership credentials.

(1) providing false materials to a judicial administrative organ or lawyers association, concealing important matters or engaging in other such dishonest conduct;

(2) Continuing to practice during a period for which practice has been suspended, or while a law firm has been suspended for rectification, or cancellation.

(3) Refusal to make changes during the period of a disciplinary punishment decision received for misconduct.

Article 39:Where lax management by law firms has any of the following circumstances, it is given a disciplinary punishment of circulating a criticism notice or public censure, and where the circumstances are serious a suspension of membership rights for 6 months to 1 year or revocation of membership credentials:

(1) Not following provisions to establish and complete systems for practice management and each item of internal management, to regulate the practice conduct of the firm's lawyers, perform oversight duties, regulate the firm's lawyers compliance with laws, regulations, rules, and industry norms, to oversee compliance with professional ethics and practice discipline, and not promptly making corrections when discovering problems;

(2) hiring lawyers or other staff, without following the rules to enter into an employment contract with them and not arranging social insurance for them.

(3) Not lawfully paying taxes;

(4) Refusing to make corrections after receiving a punishment of temporary suspending operations for rectification, or continuing to practice during the period of suspended operations to make corrections.

(5) Permitting or tolerating lawyers in the firm who have been punished with a suspension of practice to continue practicing;

(6) Establishing a work area or reception area without getting permissions and of one's own volition, or establishing a branch organization of one's own volition.

(7) Maliciously avoiding debts of the law firm and its branch organizations;

(8) Refusing to accept a legal aid case assigned by a legal aid organization without a legitimate reason; or after accepting the assignment, not following rules to timely appoint a lawyer from the firm to undertake the legal aid case or refusing to provide resources and facilitation for handling the legal aid case;

(9) Allowing or tolerating the firm's lawyers to seek material or immaterial bennefits for case-handling judges, procurators, or arbiters either before or after the matter; or allowing them to give material or immaterial benefits to relevant personnel.

Article 40: In any of the following circumstances, a disciplinary punishment of circulating a criticism notice or public censure is to be given, and where the circumstances are serious a suspension of membership rights for 6 months to 1 year or revocation of membership credentials:

(1) Engaging in activities using a law firm name that has not been certified, or changing the name of a law firm on one's own initiative or allowing others to use the name of a law firm.

(2) Changing matters such as the name, charter, responsible party, partners, domicile, or partnership agreement without registering the changes in the time provided;

(3) Employing improper methods to obstruct partners, cooperators, or lawyers from withdrawing from the firm;

(4) Making persons who are not eligible partners or selecting them as the firm's responsible person.

(5) Establishing an enterprise as a sole proprietorship, joint venture, or entrusting shares, and appointing a lawyer to serve as the enterprises' legal representative or general manager, or engaging in intermediary services and other business activities unrelated to legal services;

(6) Using methods such as issuing or providing letters of introduction for law firms, specialized attorney service documents, or receipts, facilitate persons who have not yet received a license to practice law or a lawyer from another firm's unlawful practice;

(7) Printing lawyers business cards or markers for someone who has not obtained a lawyers practice certificate, or issuing them other proofs of being lawyers; or knowing that the firm has this sort of situation and doing nothing to stop it.

Section 9: Other Conduct that Should be Sanctioned

Article 41: Commensurate punishment is to be given on the basis of these Rules for other conduct in violation of laws, regulations, rules, and industry regulations.

Article 42: Where law firms allow, encourage or instruct lawyers to engage in conduct that violates laws or regulations, the shall be punished accordingly along with the lawyers.

Chapter V: Disciplinary Punishment Procedures

Section 1: Case acceptance and filing

Article 43: Complainants may make complaints by letters, email, direct visits, or other means, and may entrust others to make complaints on their behalf.

Article 44:For suspected misconduct by a member for which no complainant has made a complaint, the lawyers association has the power to pro-actively investigate and make a decision on punishment.

Article 45:When receiving a complaint, the lawyers association shall request the complainant provide specific facts and relevant evidentiary materials.

Article 46:The lawyers associations shall draft a record for receipt of the complaint, complete a complaint registration form, properly store complaint materials and establish a member integrity file.

Article 47:The following work shall be completed by staff receiving complaints:

(1) Where complaints are made in person, a record shall be earnestly written out, and when necessary, the complainant's consent may be sought to make an audio recording When the complaint is being made, irrelevant persons must not be at the seen to observe or ask questions; the principle content of the record is to be signed or stamped by the complainant upon his confirmation that there are no errors.

(2) Where a complaint is made by letter, a record shall be well kept of its receipt and transfer, forwarding, keeping and other such work. Where a complaint is made orally or by telephone, it should be patiently heard out, a record earnestly made and the complainant shall be informed to provide written materials;

(3) Transfer formalities shall be completed for cases in which judicial administrative organs entrust lawyers association to investigate a complaint.

Article 48:The Discipline Committee shall make a decision as to whether or not to file a case within 10 days of receiving a complaint.

Article 49: A case is not to be filed in any of the following in any of the following circumstances.

(1) Where it is not within the scope accepted by that association;

(2) Where relevant evidence cannot be provided or the evidence is insufficient;

(3) Where there is no direct and inevitable connection between the evidentiary materials and the facts of the complaint;

(4) Anonymous complaints or complaints where the identity of the complainant cannot be verified, causing it to be impossible to verify the relevant facts;

(5) Exceeds the period for which the punishment was effective.

(6) Where the complainant has already raised a lawsuit, arbitration, or other judicial proceeding regarding the members violation that is subject of the complaints;

(7) Where a complaint is in regard to violation already handled by the lawyers association, and it is a repeat complaint with no new matters or evidence;

(8) Other situations where a case should not be filed.

Article 50:Where a case is not filed, the lawyers association discipline department shall explain the reasons to the complainant in writing within 7 working days of the Disciplinary Committee making a decision, except where it is an anonymous complaint. In cases of complaints that must be handled by the judicial administrative organs or other lawyers associations, the lawyers association shall make a transfer document and transfer it along with the complaint materials to a department with jurisdiction, and inform the complainant.

Article 51:The lawyers association professional disciplinary committee shall give written notice of case filing to the complainant, the member subject to a complaint or the member being investigated, within 10 working days of the case being filed. The notification of case filing shall specify the primary content of the case filing; where there are complainants, there names and the content of their complaints shall be listed; where the complainant has submitted written complaint documents a copy of the complaint documents may be sent to the member being investigated along with the notice. The notice should request that the member being investigated make a written defense within 20 working days and that they have the duty in the same period, submit written materials such as professional records.

When the case filing notice is sent, information on the constituent personnel of the investigative group for the case and the list of staff on the executive work body is given at the same time, and the member being investigated is to be informed of their right to request a recusal.

Section 2: Recusal

Article 52:In any of the following situations, a member of the Disciplinary Committee shall recuse themselves; the complainant, and the member being investigated also have the right to apply to the lawyers association for recusals:

(1) Where the person is a close family member of the case's complainant or the member being investigated;

(2) Where they practice in the same law firm as the member subject to investigation;

(3) Where the member being investigated is the law firm the person is in;

(4) Other circumstances which could influence the fairness of case-handling.

The provisions of the preceding paragraph also apply to staff of the disciplinary committee's routine working body.

Lawyers associations, disciplinary committees, routine working bodies, and other such organizations are not subjects of applications for recusal, and recusal does not apply to them.

Article 53:Recusal of the chairman of the disciplinary committee is to be decided on by the president of the lawyers association at the same level or the vice-president in charge of discipline work; the recusal of vice-chairmen is to be decided upon by the chairman of the disciplinary committee.

Decisions on the recusal of Disciplinary Committee members are made by the chairman or vice-chairmen of the disciplinary committee.

Article 54:Where the member under investigation submits an application for recusal, they shall explain the grounds and submit it within the time limit for defense.

The lawyers association or Disciplinary Committee shall make a decision, orally or in writing, on any application for recusal submitted, within 3 days of receiving it, record this in the case file, and the decision is to be final.

Section 3: Investigation

Article 55:The disciplinary committee shall appoint two or more committee members to form an investigation group and conduct an investigation of cases where it decided to file the case, and issue a letter of investigation. In major, difficult or complicated cases a joint investigative group may be formed to conduct a joint investigation, consisting of members of the disciplinary committee and personnel from relevant departments invited by the lawyers association,

Article 56:Investigators shall fully, objectively, and fairly investigate the case. The scope of the investigation is not limited to the content of the complaint. Where the investigation discovers misconduct outside of the complaint, it shall be investigate along with the complaint, and it is not necessary to file a separate case. Where it is discovered that other members are suspected of misconduct related to a case, the lawyers association may conduct an investigation in accordance with its authority.

Article 57:Investigators may question the person being investigated, present relevant materials, and formulate a record. Where members being investigated refuse to present their professional files, refuse to answer questions, or refuse to give defenses and explanations, and are viewed as evading, resisting or obstructing the investigation,heavier punishment shall be given. Investigators may use methods such as phone, email, or direct face to face contact with complainants to investigate, and require the complainant to provide relevant evidence.

Article 58:Investigators shall complete the investigation within the time limits provided by the provincial, autonomous region, or directly controlled municipality lawyers association, and on the basis of the investigation, collection, organization, summary and analysis or all case investigation materials, form an investigation conclusion report for the case, and the the report shall indicate whether the members conduct was misconduct, and whether a corresponding disciplinary punishment is recommended. Where facts that are directly relevant to the case or controversy enter litigation or abritration procedures or where other situations occur making it impossible to continue the investigation, it may be suspended upon the approval of the chairman of the disciplinary committee and the competent association president, and after the conclusion of the relevant procedures or after the relevant situation has dissipated, again decide to resume the investigation; the period of the suspension is not calculated into the investigation period.

Section 4: Procedures for Making Discipline Sanctions Decisions

Article 59:Before the disciplinary committee makes a punishment decision, it shall inform the member being investigated that they have the right to request a hearing. Where the member being investigated requests a hearing, they shall submit a written request for the hearing within 7 working days of being informed by the disciplinary committee; and where the disciplinary committee finds that it is necessary to conduct a hearing, they may form a hearing panel to conduct it.

Article 60:In cases where it is decided to hold a hearing, lawyers associations shall deliver a written 'notice of hearing' to the member being investigated seven days before the hearing is convened, informing them of matters such as the time and location for the hearing panel, the list of names of hearing panel members, and that they may apply for recusals; and notify persons relevant to the case. In addition to direct service, the law firm of the member being investigated may be entrusted to serve the 'notice of hearing', and it may also be mailed. The member being investigated shall participate in the hearing as scheduled, but where there is a legitimate reason for extending the period, it may be extended once upon approval; but where there is no application for extension and they do not participate in the hearing as scheduled, it will be viewed as waiving the right to a hearing.

Where the member under investigation does not make statements, offer defenses or participate in the hearing, it is viewed as a waiver and does not influence the disciplinary committees decision making.

Article 61:Three to five members of the disciplinary committee are to serve as members of the hearing panel, but investigators must not serve as hearing panel members.

Article 62:The hearing panel is to follow the following procedures:

(1) Question the member being investigated on whether they apply to have members of the hearing panel recused;

(2) The complainant states the facts, grounds, and demands of the complaint, but where the complainant has not appeared it does not impact the conduct of hearing procedures, and the investigators will read the complaint aloud the member being investigated has the right to make defenses and explanations; investigators state the facts of their investigation, and the member being investigated and the complainant express opinions on the facts of investigation.

(3) Members of the hearing panel may ask questions of all sides regarding the relevant case facts;

(4) Hearings shall generate a record; the record shall be given to the member under investigation and complainants for them to sign or affix a seal after reviewing to ensure there are no errors.

Based on the verified facts, and on a foundation of adequate consideration of all sides' opinions, the hearing panel is to draft an appraisal report and submit it to the Discipline Committee for a collective decision.

Article 63:The disciplinary committee shall make a collective decision after listening to or reading over the hearing panel's appraisal report or the investigative conclusion report. The meeting shall be attended by 2/3 of the committee members, and the decision is to be adopted by a simple majority of the members present; if there are three or more opinions in the deliberation, but non that has a majority, the votes for the opinion least favorable to the member being investigated are to be added to the votes for the next least favorable opinion, until an opinion has a majority. Investigators and persons who should be recused do not participate in the votes and are not to be calculated into the number of committee members attending.

Article 64:Members of the Disciplinary Committee and its staff shall strictly follow work discipline, and keep the deliberations on decisions confidential.

Article 65: After the Disciplinary Committee meets and makes a decisions, it shall draft a written decision that includes the following items:

(1) the complainant's basic information;

(2) The basic information, Lawyers' practice certificate number, and law firm of the member under investigation;

(3) The basic facts of the complaint and its demands;

(4) the defense comments of the member under investigation;

(5) The facts ascertained by the disciplinary committee on the basis of the relevant evidence;

(6) The decision made by the disciplinary committee as to this case, and its basis;

(7) the rights to request a review, and the time periods for doing so;

(8) The name of the lawyers association making the decision;

(9) The date of the decision;

(10) Other matters that should be clearly stated.

Article 66:Upon the chairman of the Disciplinary Committee's review, the written punishment decision is to be signed and issued by the president of the lawyers association. The written punishment decision shall be delivered by the lawyers association to the member under investigation within 15 business days of its signing and issuance, and at the same time, it shall be sent to the lawyers association at the level above for recording.

The Disciplinary Committee's written decisions to withdraw a case or not give a punishment shall be sent by the lawyers association's routine work body to the complainant and member under investigation within 10 days of their being signed and issued.

Where settlement is reached or the complainant withdraws the complaint, but the suspected misconduct should be given a punishment, the punishment procedure may continue, and where necessary, investigation procedures shall be initiated in accordance with the provision of article 44.

Article 67:The written decision may be delivered directly or may be delivered by mail.

Article 68:Delivery of the written opinion shall have the recipient indicate the date of receipt, sign and affix their seal to the proof of receipt, the date the recipient puts on the proof of receipt is the date of delivery. Where the written opinion is delivered by mail, the date specified on the registered mail proof of receipt is the date of delivery.

Article 69:Where the recipient is an individual member, the director, administrative manager or other partner of their law firm may sign for receipt; where the recipient is a group of members, delivery may be too the law firm director, administrative manager or other partner for their signature.

Article 70:When the recipient refuses to accept, the deliverer may invite a board member of the lawyers association, or a lawyer representative, to come and be a witness, explain the circumstances and indicate the reason for refusal and date on the proof of delivery, the deliverer and witness sign, and leave the written decision at the recipient's residence or law firm, and this will be viewed as delivery.

Article 71:Where members have not requested a review of a punishment decisions made by the disciplinary committee within the provided time limits, or where after requesting a review the review committee makes a decision to maintain or modify the original punishment decision, it is an effective punishment decision. Effective punishment decisions are carried out by the lawyers association which directly governs the punished member at the time the decision becomes effective.

Article 72:Where the disciplinary committee finds that members misconduct shall be given an administrative punishment, it shall promptly transfer [the case] to a judicial administrative organ with jurisdiction and provide a punishment recommendation. Where the same misconduct has already been given an administrative punishment, do not recommend another administrative punishment.

Where a complaint involves a violation of the "Lawyers Law" or the "Measures on Punishment of Lawyers' and Law Firms' Illegal Conduct and might constitute a crime, or where there is major societal impact, the disciplinary committee should promptly report it to the judicial-administrative organs for that level and the lawyers association at the level above.

Article 73:For decisions on punishments of reprimands and warnings, the lawyers association that made the decision is to inform the law firm. In cases of major or typical violations of laws or rules where lawyers have received punishment of circulation of a notice of criticism, it shall be circulated within the legal profession for that area. Where decisions on punishments of public censure take effect, they shall be disclosed to the public. In cases where administrative punishments or professional punishment decisions such as cancellation of practice certificates or revocation of membership credentials are received due to serious violations of laws or rules, the punishment decision takes effect, and the level of societal interest is quite high,it may released to the public be done through official websites, microblogs, or WeChat, periodicals or press conferences.

Chapter VI: Review

Article 74:Provincial, autonomous region, or directly governed municipality lawyers associations should establish a committee for review of member punishments, responsible for accepting applications for reviews and making review decisions.

Article 75:The review committee shall be comprised of persons from both inside and outside the profession. Persons inside the profession include: practicing lawyers and personnel from the lawyers association and judicial administrative organs; persons from outside the profession include: legal experts and professors; relevant persons from judicial administrative organs or other organs and organizations.

The director and deputy director of the review committee are to be nominated by the office committee of the president of the lawyers association at the same level, and decided upon by the board of directors or it standing committee, and their term is to be the same as that of the board of directors.

The members of the review committee are selected from the executive board of directors or board of directors for the lawyers association at the same level, by means of election, selection or decision; and their term is to be the same as that of the board of directors.

Article 76:Disciplinary committee members of provincial, autonomous region,directly governed municipality or districted city's lawyers associations, cannot simultaneously be constituent members of the review committees, and must not participate in cases re-examining the punishment of members from their firm.

Article 77:The review committee shall perform the following duties:

(1) Accept applications for review;

(2) examine the matters in applications for review;

(3) Make review decisions;

(4) Other duties.

Article 78:Where the members being investigated in a case are unpersuaded by a disciplinary punishment decision made by a lawyers association at the provincial, autonomous region, directly governed municipality or districted city level, they may apply for a review to the review committee of the lawyers association for the province, autonomous region or directly government municipality they are in, within 15 days of receiving the written decision.

Where the Secretary-general office meeting of provincial, autonomous region, or directly governed municipality lawyers associations, or the chairman and deputy chairmen of the review committee collectively, find that a punishment decision made by that regions' lawyers association's disciplinary committee might have unclear facts, errors in the application of laws, regulations or rules, or procedural improprieties; they have the right, within one year of the decision being issued, to request that the review committee initiate the review procedures.

Article 79:Members applying for review shall meet the following conditions:

(1) The decision for which they request a review shall be one made by that provincial, autonomous region, or directly governed municipality lawyers association's disciplinary committee, or the disciplinary committee of a districted city:

(2) The review application shall include a specific review demands, facts and evidence;

(3) The application for review must be submitted within the provided time period.

Article 80:Applications for reviews shall be submitted in writing, and the content shall include:

(1) the applicant's full name or organization name, address, practice document number and telephone number etc.

(2) The name of the lawyers association disciplinary committee that made the original decision;

(3) the specific facts, rationale, evidence demands and so on for the review request;

(4) the date on which the review application is submitted;

(5) The written disciplinary committee punishment decision.

Article 81:Review Committees should address written review applications within 10 days of their receipt as follows:

(1) for those meeting the requirements for review applications, the review committee shall make a decision to accept it and notify the applicant;

(2) review will not be given in the following situations:

1.The applicant does not have standing;

2. The applications for review exceeded the provided time limits;

3. The matters for which review is requested are not within the scope of the original decision.

4. The facts and reasons for the application for review are not complete.

Article 82:The review committee shall make a decision on acceptance within 3 working days, and the chairman of the review committee is to designate one review committee member as the presiding adjudicator and four others to form the review panel and conduct a written review.

The review committee shall notify the applicant within 4 working days of organizing the review panel, inform them of the right to apply for recusals, and send a copy of the application for review to the disciplinary committee of the lawyers association that made the original decision.

The applicant may submit an application for the recusal of reviewers responsible for this case within 10 working days of receiving the notification that the review court has been formed, and shall state the reasons. Where reviewers have any of the circumstances provided for in article 52, they shall recuse themselves.

Lawyers associations shall make a decision, orally or in writing, within 10 working days of receiving a recusal request, and make a record in the case file.

The lawyers association Discipline Committee which made the original punishment decision shall provide case file materials relevant to the making the original decision to the review committee within 15 working days of receiving a copy of the application for review, and may submit explanations directed at the reasons and demands in the request for review. Failure to make timely submissions does not influence the review.

Article 83:The review panel conducts a written review of the facts, reasoning, evidence and demands proposed by the applicant, and of the facts, evidence and reasons and bases for giving a punishment in the original punishment decision .

The review panel may notify applicants to conduct review and debate, either in person or writing, on the acceptability, veracity, relevance and content of new evidence provided by the disciplinary committee that made the original punishment decision.

When the review decision finds it necessary, it may question the applicant in person and hear their statements, argument and comments.

Article 84:Review panels should make a review decision based on a simple majority opinion within 45 working days of organizing the panel. Where the Review panel cannot achieve a simple majority opinion, it is submitted to the entire Review Committee for discussion and the review panel will make a review decision based on the opinion of a plurality of the full Committee.

(1) Where the review panel feels that the facts verified by the original punishment decision are clear, the assignment of blame appropriate, the bases applied correct and the procedures lawful, it shall make a decision to sustain the original judgment;

(2) Where the review panel finds that the facts verified by the original decision are clear and that the procedures for investigation and making the decision were proper, but that the basis for application was improper and that the disciplinary measures given were inappropriate and should be modified, or where there are clear errors (typos) in the original written decision, it shall make a decision to modify the original punishment.

(3) Where the review panel finds that the facts verified by the original punishment decision are unclear or that the procedures for investigation and making the decision were improper, it shall make a decision to revoke the decision and send it to the disciplinary committee which made the original decision to make a new decision.

Article 85:A written decision document shall be drafted for decisions made by the review panel, and they will take effect after being signed and issued by the chairman of the review committee.

Article 86:Decisions by the review panel to sustain or modify the original punishment are final, and become effective on the date they are made.

Chapter VII: Mediation

Article 87:Mediation may be conducted at any stage, including investigation, hearing, and punishment, and the mediation period is not counted in the investigation period.

Mediation shall adhere to the principles of legality and voluntariness.

Article 88:Where settlement is reached in an economic dispute or misconduct is forgiven by the complainant, this may be the basis for leniency, commutation or waiving of punishment.

Article 89:Mediation, settlement, or withdrawal of a complaint does not necessarily constitute the end of the disciplinary punishment procedures, and those still requiring disciplinary punishment shall be transferred to the disciplinary committee for investigation procedures.

Article 90:Where in the review process, the review division does not conduct mediation, but the complainant forgives the member's misconduct, the review division may acknowledge this and modify the original decision, with this as a basis for leniency, commutation or waiver of punishment.

Chapter VIII: Supplementary Provisions

Article 91:Where members' misconduct is not discovered within 2 years, a case will not be filed. The time limit provided in the proceeding clause is calculated from the day on which the misconduct occurred, where the misconduct is repeated or continuous, the calculation is from the conclusion of the conduct.

Where the circumstances or consequences of misconduct are serious, and the time period in the above clause has been exceeded but it is still necessary to give a disciplinary punishment, a decision is to be made by 2/3 or more of the plenary Disciplinary committee.

Where, after a member has received an administrative punishment or criminal sanction, they shall still be given a related professional disciplinary punishment, the statue of limitations provided in the first paragraph of this article is to be calculated from the date on which the administrative punishment or criminal punishment takes effect.

Article 92:Provisions in these Rules case filing notices, notices of panel formation, investigative letters, notices of hearings, review decision documents, and other documents and related materials that require service, apply the service procedures provided in articles 67,68,69, and 70 for decision documents.

Article 93:Local lawyers associations may draft detailed implementation rules, work rules, and procedures for implementing punishments, on the basis of these Rules taken together with actual local conditions.

Article 94:Local lawyers associations may make separate provisions to adjust the time periods provided by these Rules.

Article 95:After local lawyers associations' punishments of lawyers or lawyers associations' conduct take effect, they shall be sent to the judicial-administrative organs of the same level for recording.

Article 96:Where disciplinary codes already promulgated by local lawyers associations are not in accord with these Rules, these rules are controlling.

Article 97:After these Rules are passed by the Executive board of directors, they are to take effect on March 31, 2017.

Article 98:The All China Lawyers Association's Executive Board is responsible for interpreting these Rules.

 

About China Law Translate 1021 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.