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Lawyers Association Rules for Punishment of Members' Misconduct (provisional)
[revision draft for the solicitation of comments]
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. Personnel who have applied to work as lawyers should perform their professional activities according to the special provisions of these rules.
Article 3: In these Rules, "misconduct" refers to violations of the laws, regulations, charters, all business norms established by the Lawyers Association, publicly known codes of conduct for the legal industry that members commit while conducting their work as lawyers or while conducting affairs related to handling or performing work as lawyers, as well as acts committed by members outside of their professional work as lawyers that gravely harm the image of the legal industry, or acts violating basic conditions for applying to work as lawyers such as acts contrary to good moral conduct.
Article 4: In these Rules, "complaints" refers to reports such as accusations, denunciations, whistleblowing or informing, directed to the Lawyers Association and reflecting suspicion of a member's misconduct. When there is no effective complaint or a complaint has been revoked, the Lawyers Association may initiate an investigation of a member's misconduct.
Article 5: The Disciplinary Committee must observe the principles of objectivity and fairness, use facts as a basis, and use law, regulations, and business norms as their measure when undertaking disciplinary actions.
Chapter II: Disciplinary Committee
Article 6: The All-China Lawyers Association establishes a Disciplinary Work Guiding Committee, composed of outstanding lawyer representatives, personnel from the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security and Ministry of Justice, as well as legal experts; which will provide guidance and supervision to the disciplinary work of local Lawyers Associations in accordance with the “Charter of the All-China Lawyers Association” and relevant working rules put down by these Rules.
Article 7: Discipline Committees (or Disciplinary Committees) established by Lawyers Associations of provinces (autonomous regions and directly administered municipalities, abbreviated below as 'regions' and 'municipalities') or by Lawyers Associations of municipal districts, are responsible for education and training in professional ethics and discipline of members within their jurisdiction, for providing supervision and guidance of members' professional activities within their jurisdiction, and for filing cases, conducting investigations and carrying out disciplinary action in accordance with the Charter of the Lawyers Association and these Rules when members within their jurisdiction are suspected of misconduct.
Article 8: Investigation and Disciplinary Punishment of Association members for suspected misconduct is in the jurisdiction of the lawyers association to which the member belonged at the time of the suspected misconduct; where the administrative division in which the member suspected of misconduct practices has not established a lawyers association, the lawyers association for the province (region or municipality) to with the division belongs has jurisdiction. Where after the suspected misconduct occurred the member joined another area's lawyers association, that area's lawyers association has the responsibility of coordinating with the original lawyers association to conduct and investigation. Where during the period in which misconduct continued, the member suspected of misconduct consecutively joined two or more local lawyers associations, and those lawyers associations all have the jurisdictional right to investigate and punish, the first lawyers association to file a case has jurisdiction.
Article 9: Disputes between local lawyers associations over jurisdiction shall be resolved by consultation between the two sides; where consultation is unsuccessful, the circumstance will be reported to the lawyers association at the first level above which is shared by 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 10: Disciplinary punishments cancelling membership credentials are issued by the provincial (region or municipality) lawyers association. Where provincial (region or municipality) lawyers associations make a decision to cancel membership credentials, they shall first report the circumstance to the judicial administrative department at the same level to revoke the member's practice documents; where the member has had their practice documents revoked by the judicial administrative department in accordance with law, the lawyers association for the province (region, municipality) where the member is located shall directly make a written decision to cancel his membership credentials.
Article 11: Disciplinary commissions have one chairman and several vice chairmen. The list of members comprising a local lawyers association's disciplinary committee should be reported to the lawyers association at the level above for the record. Where local lawyers associations have a relatively large number of members, members of the Disciplinary Committee may form a Judgment Committee with the chairman of the Disciplinary Committee serving as the chairman of the Judgment Committee, and the Judgment Committee will carry out the duties given to the Disciplinary Committee in chapters 5 and 6 of these Rules. The chairman, vice-Chairmen and other members of the Disciplinary Committee shall be fair and honest, and selected from lawyers who have practiced full-time for more than eight years. Specific qualifications for serving and selection methods are determined by lawyers associations at all levels in accordance with these Rules and the implementing regulations formulated in light actual local situation and work rules.
Article 12: The chairman of the Disciplinary Committee will be elected from among the chairman, executive vice-chairman or vice-chairmen of the Lawyers association at the same level's board or executive board, and their term identical to thee term of the Board or executive board. The members of the disciplinary committee are taken from the board or executive board of the lawyers association at the same level, by means of election, selection or decision; the period of service is the same as that for service on the board or executive board.
Article 13: The lawyers association secretariat establishes a special department or specialized personnel responsible for:
(1) Receiving complaints
(2) Completing monthly reports of complaint statistics and annual comprehensive analytic reports on disciplinary efforts;
(3) Supervising and inspecting law firms' of self-review and self-correction efforts on complaints;
(4) Other matters related to disciplinary work
Chapter III: Types and Applicability of Disciplinary Punishment
The types of disciplinary punishment imposed by the Lawyers Association on members are:
(3) Circulation of a criticism notice;
(4) public censure;
(5) Suspension of part or all of the rights of membership for 6 months-1 year;
(6) cancellation of membership credentials.
Article 15: Where the Lawyers Association decides to give a punishment of a warning or higher, it may simultaneously order the rule violators to accept special training or a make redress for a limited time period. Specialized trainings may be 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, 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 Ordered the member to withdraw or quite a representation due to a conflict of interests;
5. Order the member to issue lawful receipts to the client, send an apology letter or make a person apology etc.;
6. Order special redress for a law firm that has had repeated occurrences of some type of professional misconduct, and where the redress is not completed in accordance with requirements, suggest that the relevant departments suspend that firms credentials for engaging in that type of professional conduct, or even cancel the credentials.
Suspension of part or all of the rights of membership for 6 months - 1 year indicates that during the period for which membership rights are suspended, the member's enjoyment of rights provided in "Lawyers Association Articles of Association" is temporarily suspended in part or in full.
Article 16: Lenient or heavy punishment indicates giving a lighter or heavier punishment within the range of punishments that shall be given for the misconduct.
Article 17: Commutation or enhanced punishment indicates reducing or increasing the punishment to outside the range of punishments that shall be given for the misconduct.
Article 18: Where any of the following apply to a member's misconduct, the punishment may be lenient, commuted or waived:
(1) It is first-time misconduct and the circumstances are minor;
(2) The misconduct resulted from recklessness or other ordinary negligence and has not caused serious consequences;
(3) [the member] actively reported the misconduct and deeply understands their error, truly showing remorse;
(4) [the member] actively cooperates with the investigation, conscientiously corrects the misconduct, and promptly adopts measures to prevent or reduce negative consequences.
Article 19: Where any of the following apply to a member's misconduct, it shall be given a heavy or enhanced punishment:
(1) There are two or more types of misconduct at the same time which should be given disciplinary punishments;
(2) Where within a two year period there are two or more occurrences of misconduct which should be given disciplinary punishments;
(3) Where after the misconduct occurred, the violating member fabricated, concealed or destroyed evidence or had other conduct obstructing, evading, thwarting or resisting investigation.
(4) Threatened, intimidated or retaliated against a complainant, whistleblower, witness or other relevant persons.
(5) Previously delayed or resisted implementation of a disciplinary punishment.
Chapter IV:Violations and applicable sactions
Section 4: Acts revealing secrets or privacy
Article 23: An admonishment, warning or circulation of criticism notice is given where a client's commercial secrets or personal information, which were learned in the course of business, or other information in circumstances where disclosure is not desired, is leaked or disseminated in violation of laws, regulations, professional standards or trial norms; or where case circumstances relating to a client's commercial secrets or personal information, trial information or litigation documents are leaked or disseminated outside the case in violation of rules for a not publicly tried case. Where it was intentional or the result of gross negligence and the circumstances were serious and caused major harm to the client, or where it harmed the overall professional reputation of lawyers; give a public censure, suspension of part or all rights of membership for 6 months-1 year, or revoke membership credentials.
Article 24: Where before the trial of a case is complete, important case information, litigation documents, evidentiary materials or defense or representation opinions are revealed or disseminated, impacting the handling of the case in accordance with law, give a disciplinary punishment of an admonition or warning; where the circumstances are serious, circulate a criticism notice, give public censure or suspend part or all rights of membership for 6 months- 1 year.
Article 25: Where state secrets are divulged, give a disciplinary punishment of public censure, suspension of some or all of the rights of membership for 6 months - 1 year or cancel membership.
Section 10: Inobjective, unjust and inflamatory judicial appraisals and use of the internet and other media
Article 37: Where lawyers are reasonably found to have influenced lawful case handling or obstructed judicial fairness through nonobjective, unfair or imprudent judicial commentary or improper use of the internet or other media,the disciplinary punishment will be a warning, circulation of a criticism notice or public censure.
Article 38: Where lawful case-handling is influence by methods such as making distorted, untrue or misleading publicity or commentary, releasing public letters, connecting incitements and posturing and encouraging and assisting the inflammation of public opinion; putting pressure on case-handling organs, disparaging or vilifying case-handling organs or opposing parties; the disciplinary punishment given is circulation of a criticism notice or public censure.
Article 39:Where improper use of the internet or other media has any of the following circumstances, it is punishable by circulating a criticism notice or by public censure and where the circumstances are serious a suspension of part or all rights of membership for 6 months-1 year or cancel membership credentials:
(1) Expressing radical or improper comments on a case or public matter through the internet, other media or in a public forum, that are reasonably considered to be an impediment of judicial fairness;
(2) Use of the internet or other media to express opinions attacking or vilifying China's legal system, political system or central authorities' major policy decisions, that have a repugnant impact;
(3) Use of the Internet or other media to distort, misrepresent or misleadingly publicize a case, or to vilify the case-handling authorities and their staffs, as well as the other party's reputation, affecting the judicial organs' handling of the case in accordance with law;
(4) Use of the internet or other media to express opinions relevant to a case, to arouse or encourage public fervor and influence judicial organs' handling of cases in accordance with law;
(5) Use of the internet or other media to advocate or unite others so as to create a public opinion blitz or pressure on a case one is undertaking so as to influence the judicial organs' trial of a case in accordance with law;
(6) Organizing or participating in an internet gathering, observation or declaration of support, that influence the regular handling of a case in accordance with law;
(7) Where a client or third party's commercial secrets or personal information, or other circumstances that are not wanted to be disclosed, are revealed or disseminated on the internet or other media;
(8) Where information about case conditions in a nonpublicly tried case is revealed or disseminated on the internet or other media.
(9) Other improper use of the Internet or other media.
Section 12: Conduct disrupting the order of judicial work[……]
(7) Use of the media or other methods to incite or instigate the parties, their relatives or interested parties to interfere with the normal conduct of litigation, arbitration or administrative actions, through methods such as disrupting public order or endangering public security.
(8) other interference with the judicial work process, which should be subject to disciplinary punishment.
Section 13: Conduct not complying with court or arbitration organization discipline
Article 42: In any of the following situations, not complying with courtroom or arbitral tribunals' discipline is given a disciplinary punishment of admonishment, warning or circulation of a criticism notice; where the circumstances are serious, public censure or suspension of a all or part of the rights of membership for 6 months- 1 year is given.
(1) not complying with courtroom or arbitral tribunal discipline, and not heeding the dissuasion or rebukes of judges or arbiters regarding their misconduct;
(2) Expressing, or instigating and persuading a client to express, comments at court or in arbitration that will disrupt the ordinary conduct of litigation or arbitration activities;
(2) Disrespecting judges, prosecutors, arbitration personnel or other participants or observers, or engaging in a physical altercation with them.
(4) Instigating or inciting others to disrupt order in a court or arbitral tribunal;
(5) Without the court's permission, making audio or video recordings or taking pictures of courtroom activities, or transmitting the courtroom conditions via mail, blogs, microblogs or other means;
(6) not participating in courtroom activities without legitimate reason, refusing to defend a client at court, or withdrawing from the courtroom on one's own volition without permission, refusing to sign for judicial documents or refusing to make opinions in relevant documents, as well as not obeying times for court hours, arriving late and leaving early;
(7) Uncivilized bearing and speech at court so as to harm the professional image of lawyers;
(8) Other conduct no complying with court or arbitrationg tribunal discipline that should be subject to professional disciplinary action.
Section 14: Conduct disobeying judicial administrative management or professional management
Article 43: In any of the following circumstances, disobeying judicial administration management or professional management, is give a disciplinary punishment of admonishment, a warning, circulation of a criticism notice or public censure.
(1) providing false materials to a judicial administrative organ or lawyers association, concealing important matters or engaging in other such dishonest conduct;
(2) Concealing the true situation, refusing to provide relevant materials or providing untrue or false materials when judicial administrative organs or lawyers associations are carrying out inspection or supervision efforts or investigating the veracity of complaints of unlawful professional conduct or misconduct, or hiding, destroying or fabricating evidentiary materials.
(3) Providing untrue, false or fabricated materials or engaging in other dishonest conduct during the annual lawyers professional evaluation, practice assessment, commendation selection activities;
(4) Providing untrue, false or fabricated materials when applying to change practice organizations, closing or unregistering a practice or completing other such formalities.
(5) Continuing to practice during a period for which practice has been suspended, or while a law firm has been suspended for rectification, or cancellation.
(6) A law firm tacitly allows, tolerates or fails to interfere with a lawyer in that firm continuing to practice during the period where the firm is suspended for rectification, or the period where that lawyer's practice is suspended.
(7) Refusal to make changes during the period of a disciplinary punishment decision received for misconduct;
(8) Refusal to undertake duties provided in the Lawyers Association articles of association;
(9) refusal to comply with a Lawyers Association practice dispute ruling;
(10) refusal to pay dues on time;
(11) Providing untrue, false or fabricated proofs or engaging in other dishonest conduct in the course of handling a change in important affairs at a law firm, establishment of a branch office, a division, a merger or closure, an audit, or deregistration.
(12) Refusal or delay in performing legal aid or other public interest legal service obligations that relevant state organs or lawyers associations have appoint one to undertake;
(13) Refusal to accept a legal aid case assigned by a legal aid organization without a legitimate reason; or after accepting the assingment, 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, or tolerating or not preventing a lawyer's refusal to perform their legal aid duties ;
(14) a law firm does not make corrections after being given a punishment of temporary suspension for rectification;
(15) Where lawyers or law firms refuse or delay implementation of a disciplinary punishment decision.
Article 44:In any of the following situations of lax management at law firms, the punishment is an admonishment, warning or circulation of a criticism notice; where the circumstances are serious, a public censure or suspension of all or part of the rights of membership for six months- 1 year or cancellation of membership credentials is given.
(1) Engaging in activities using a law firm name that has not been certified, or changing the name of a lawfirm on one's own initiative or allowing others to use the name of a law firm.
(1) Violating the statutory procedures in changing the name, responsible parties, charter, partnership agreement, location, partners or other major matters; or not following the procedural rules for approvals and record filing when handling modifications of the law firm's name, responsible parties, charter, partnership agreement, location, partners or organizational structure; or not following the requirements and procedures for adding partners, handling partners retirements or withdrawals, or selecting responsible parties; or not following procedures in handling law firm's division, merger, establishment of branches, or termination, settling accounts and de-establishment.
(3) Employing improper methods to obstruct partners or lawyers from withdrawing from the partnership or changing firms.
(4) Making persons who are not eligible partners or selecting them as the firm's responsible person.
(5) 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.
(6) Engaging in operational activities outside of lawyers services; setting up an enterprise as a sole proprietorship, together with others or through shareholders abd retaining a lawyer to serve as the enterprise's legally-designated representative or CEO; or engaging in services as an intermediary or other operations not related to legal services, or allowing, or failing to check on, the firm's lawyers engaging in business activities not compliant with the duties and identity of a lawyer; or tolerating or failing to check on firm lawyers launching, participating in or supporting organizations or activities not compliant with the duties and identity of a lawyer.
(7) Law firms that by methods such as using, issuing or providing letters of introduction, special lawyers documents, printed name cards or receipts, facilitate persons who have not yet received a license to practice law or a lawyer from another firm's engaging in unlawful practice.
Article 45:Where law firms have any of the following situations, a disciplinary punishment of a warning, circulation of a criticism notice or public censure is given.
(1) Not following rules for establishing and completing internal management systems, having lax or unorganized daily management, so that the law firm is unable to operate normally.
(2) Not following rules for effectively supervising lawyers' professional activities, or tolerating, hiding or abetting the firm's lawyers' conduct violating the rules and discipline rules, causing serious consequences;
(3) Neglecting management of the firm's lawyers, causing within a single year, either one lawyer to receive a punishment of stopping their practice or higher, or two lawyers or times receiving a punishment of a warning or higher.
(4) Inadequately guide and supervise lawyers representation of major sensitive cases or group cases, not following the rules in establishing a groups discussion mechanism for major sensitive or group cases, and a system for reporting and recording such cases;
(5) Not following the years in allowing end of the year inspections and performance evaluation;
(6) not paying taxes in accordance with law, receiving administrative penalties;
(7) hiring lawyers or other staff, without following the rules to enter into an employment contract with them and not arranging social insurance for them.
Section 15: Violations of the special provisions for management of persons applying to be lawyers
Article 46:In any of the following situations, law firms violating the "All China Lawyers Association Management Provisions on Applications for Legal Practice Internships" are given a warning, circulation of a criticism notice or public censure as a disciplinary punishment. At the same time, they may be ordered to stop its internship guidance work and prohibited from accepting interns for 2 years.
(1) Don't perform, or delay performance of, the duty to guide and manage interns.
(2) Instigating or failing to prevent nterns' violations of internship discipline or from engaging in other misconduct;
(3) Refusing to issue an Internship Verification, evaluation comments or other relevant documentation to an intern without good cause,
(4) Issuing interns with an untrue or false 'Internship Verification, evaluation comments or other relevant documents;
(5) Other conduct violating provisions on management of interns.
Where lawyers guiding interns having any of the circumstances in the preceding clause, and the law firm does not follow provisions in handling it, the lawyers association may order it to stop that lawyer's guidance of interns.
Article 47:Where interns rely on untrue or false Internship Verifications, evaluation comments or other relevant documents, or use methods such as fraud or bribery to pass the lawyers association evaluation, their evaluation as passing should be cancelled and that intern's internship will be ineffective, and they will be punished by not allowing them to apply for an internship for 2 years; where the circumstances are serious, they may not apply again for an internship within 5 years.
Where the circumstances described in the preceding clause are addressed after the intern has been approved as a lawyer, the lawyers association shall at the same time submit the handling decision to the judicial administrative organ for the provincial, autonomous region or directly governed municipality for approval.
Section 16:Other misconduct that should be punished
Article 48:While in practice, those expressing, making or transmitting speech, information or recordings contrary to the nation's laws or endangering national security; those starting or participating in organizations that endanger national security; and those supporting, participating in or carrying out activities intended to endanger national security; are to be given a punishment of public censure, suspension of all or some membership privileges for between six months and one year, or cancellation of membership credentials.
Article 49: Where there is other misconduct or conduct contrary to lawyers and citizen ethical norms, seriously harming the professional image of lawyers, follow these Rules in giving a related disciplinary punishment.
Chapter V:Procedures for Disciplinary Punishments
Section 1:Accepting and Filing Cases
Article 50: The complainant may elect to complain by methods such as letter, phone, fax or direct visit, they may also, in writing, retain other persons to complain on their behalf .
Article 51:For misconduct where there has not been a complaint, the lawyers association may pro-actively investigate and make a decision on punishment.
Article 52:Where members' misconduct is not discovered within 2 years, it will not be given a disciplinary punishment.
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 of criminal sanction they should still be given a related professional disciplinary punishment, the time limits on effective punishments in the first clause of this article do not apply.
Article 53:When receiving a complaint, the disciplinary department of a lawyers association may request the complainant provide specific facts and basic evidentiary materials.
Article 54:The disciplinary departments of 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 55: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 byt 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 complaint is made orally or by telephone, it should be patiently heard out, a record earnestly made and the complainant should be informed to provide written materials;
(3) Transfer formalities shall be completed for cases in which judicial administrative departments entrust lawyers association to investigate a complaint.
Article 56:The Discipline Committee shall make a decision as to whether or not to file a case within 10 days of receiving a complaint.
Article 57:A case is not to be filed in any of the following in any of the following circumstances.
(1) Is not within the scope accepted by that association；
(2) Can't provide a foundational evidence or the evidence materials are vague and unclear;
(3) 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) a complaint is in regard to conduct already handled by the lawyers association.
(7) Other situations where the case should not be filed.
Article 58:Where a case is not filed, the lawyers association professional discipline department shall explain the reasons to the complainant in writing within 7 working days of the Disciplinary Committee making a decision.
In cases of complaints that must be handled by the judicial administrative organs or other lawyers associations, the lawyers association professional discipline department should transfer it and inform the complainant.
Article 59:The lawyers association professional discipline department 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 subject of the complaint along with the notice. The notice should request that the member being complained of or investigated make a written defense within 20 working days [or the period provided by a provincial (autonomous regional or municipality) lawyers association if it has provided otherwise] and that they have the duty in the same period, submit written materials such as professional records.
Section 2: Recusal
Article 60:In any of the following situations, a member of the Disciplinary Committee shall recuse themself; the complainant, and the member being claimed of or under investigation also has the right to apply for recusal:
(1) They or their close family members have a direct interest in the complaint;
(2) they are from the same law firm as the member subject to a complaint or under investigation;
(3) Their professional establishment is the member subject of the complaint or under investigation;
(4) Other circumstances which could influence the fairness of case-handling.
The provisions of the preceding clause are applicable to recusal of review committee members. Lawyers associations, disciplinary committees, judgment committees, professional discipline departments and other such organizations are not subjects of application for recusal, and recusal does not apply to them.
Article 61:Recusal of the chairman of the disciplinary committee or review committee is decided by the president of the lawyers association at the same level or the vice-president in charge of discipline work;
Decisions on the recusal of Disciplinary Committee members are made by the chaiman or vice-chairmen of the disciplinary committee. Decisions on the recusal of Review Committee members are made by the chairman or vice-chairmen of the Review Committee.
Article 62:Where the member subject of a complaint or under investigation submits an application for recusal, they shall explain the reason and submit it within 5 of days after having received notice of the disciplinary court's formation or before the hearing begins.
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, and the decision is final.
Section 3: Investigation
Article 63: The Discipline Committee should appoint a member(s) of the Discipline Committee to conduct an investigation of cases it has decided to file and investigate.
Article 64:The investigating committee members should comprehensively, objectively and fairly review the actions of the member subject to a complaint or under investigation, when investigating 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.
Article 65: Investigating committee members may question the person subject to a complaint or being investigated, present relevant materials, and formulate a record. Where members subject to a complaint or under investigation refuse to present their professional files or refuse to answer questions, and is viewed as escaping, resisting or obstructing the investigation, an independent punishment may be given for this situation or they may be given a heavy or enhanced punishment.
Article 66:Investigating committee members should complete the investigation within the time limits provided by the provincial (autonomous region, 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 should indicate whether the members conduct was misconduct, and whether a corresponding disciplinary punishment is recommended.
Section 4: Procedure for Disciplinary Sanction Decisions
Article 67:Where the Disciplinary Committee finds it necessary, it may form a disciplinary tribunal to hold a hearing, either at the application of the member subject of a complain or under investigation, or on its own initiative.
Article 68:Where it is decided to hold a hearing, the lawyers association professional discipline department shall notify the member subject to a complaint or under investigation and the complainant of the time and place for the hearing, within 5 working days of holding the hearing. Where the complainant or member subject to complaint or under investigation's does not make statements, offer defense or participate in the hearing, it is viewed as a waiver and does not influence the disciplinary committees decision making.
Article 69:Disciplinary committee members serve as members of the disciplinary tribunal, but where a judgment committee has been set up, members of the judgment committee may serve as members of the disciplinary tribunal.
Article 70:Hearings are conducted according to the following procedures:
(1) Disciplinary tribunals moderate hearings; questioning the member subject to complaint or under investigation and whether the complainant has applied for a member of the disciplinary tribunal to be removed.
(2) Investigating members describe the facts from the investigation, the complainant and the member subject to complaint or investigation express opinions on the investigation facts. The complainant describes the facts and reason for the complaint and their demand. The member subject to complaint or investigation has the right to offer a defense. The complainant and member subject to complaint both conduct review of evidence and debate.
(3) Disciplinary tribunals may question all sides regarding case facts; upon the disciplinary tribunal's consent, the investigating members may put questions to all side, and all side shall answer;
(4) Hearings should generate a record; the record shall be given to the member subject to complaint or under investigation, investigators who appeared and complainants who appeared, for them to sign or affix a seal after reviewing to ensure there are no errors. The disciplinary tribunal will map out a report on trial of this case, based on a review of the written materials or facts verified at the hearing and on a foundation of adequate consideration of all sides' opinions, and submit it to the Discipline Committee for a collective decision.
Article 71: After hearing or reading the trial report of the disciplinary tribunal, the diciplinary committee shall make a collective decision. The session shall have at least half of the committee members present, and the decision shall be by a 2/3 majority of those present. When a two thirds majority of the disciplinary committee members present verify that the conduct of the member subject to complaint or under investigation amounts to a violation of rules or discipline, but cannot reach a two thirds majority as to what punishment should be given, make a decision for the lightest penalty agreed upon by simple majority. Where a judgment committee is established, the judgment committee makes a decision referring to the procedures described above.
Article 72:Members of the Disciplinary Committee and its staff shall strictly follow work discipline, and shall keep the deliberations on decisions confidential.
Article 73:After the Disciplinary Committee meets and makes a decisions, it shall draft a written decision that includes the following items:
(1) Basic information about the complainant;
(3) The full name, gender, age, practicing license number of the member against whom a complaint was made or who is under investigation, and the name of their law firm and the responsible party there.
(3) The basic facts of the complaint and demands;
(4) Comments in response by the member against whom a complaint has been made or who is under investigation;
(5) The facts and evidence verified by the disciplinary committee;
(6) the decisions made by the Disciplinary Committee in the present case and its basis;
(7) The right to apply for a review, and period 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 74: Upon the chairman of the Disciplinary Committee's review, the written decision is signed and issued by the president of the lawyers association. The written punishment decision shall be delivered by the lawyers association professional discipline department to the member subject to a complaint or under investigation within 10 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 professional discipline department to the complainant and member subject of the complaint or under investigation.
Where a settlement has been reached or the complainant has withdrawn the complaint, but the suspected misconduct should be punished, the disciplinary procedures may be continued and when necessary shall follow the procedures for initiating an investigation in article 51.
Article 75:The written decision may be delivered directly or may be delivered by mail.
Article 76: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 77: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, or other employee for signature.
Article 78:When the recipient refuses to accept, the deliverer may invite the director or supervisor 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 79: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 80:Where the disciplinary committee find 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. If the same misconduct has already been given an administrative punishment, do not recommend another administrative punishment.
Article 81:After a decision to punish a member's misconduct becomes effective, the lawyers association should disclose the relevant information on its official web page and in its bulletin,and may choose to reveal it to the local media. Lawyers associations revealing information lawyers' or law firm's improper practice should at the same time send it to the China Lawyers Credit Network.
Members' disciplinary punishments should be recorded in that members credit information record. The validity period for disciplinary information is five years beginning on the date on which the decision takes effect; where the punishment itself has a period of enforcement, the effective period begins on the day that the enforcement period is completed.
The period for long-term preservation of electronic credit information records and hard-copy documents is the same as the effective period for the credit information.
Chapter VI: Review
Article 82:Every provincial (autonomous region, directly controlled municipality) lawyers association shall establish a review committee for disciplinary punishment of members, responsible for accepting and deciding requests for review of disciplinary punishments made by all lawyers associations within that jurisdiction.
Article 83:The review committee shall be comprised of persons inside and outside of 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, professors and relevant persons organized by judicial or other organs.
Article 84:Review committee members have a establish one chairman and several vice-chairmen and members, with the board or executive board of the lawyers association at that level making nominations and decisions. Specific requirements for service and election methods may be provided by the lawyers association at the provincial (autonomous region, directly governed municipality) level when following these Rules and actual local conditions to draft implementing rules and work rules.
Article 85:Members of the Disciplinary Committee may not concurrently serve as members of the Review Committee.
Article 86: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 87:Where members are unpersuaded by a disciplinary punishment decision made by a lawyers association at any 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 30 days of receiving the written decision.
Article 88:The applicant is the member requesting review. The applicant must be the subject of the complaint which was the subject of the original decision with which they are unpersuaded, a member who is subject of a complaint or a member being investigated.
Article 89:Applicants' applications for review must meet the following requirements:
(1) The decision for which review is requested must be one made by the disciplinary committee of that province's (region, municipality's) lawyers association, its branches or a local lawyers association below it.
(2) The review application should include a specific review demands, facts and evidence;
(3) an application for review must be submitted within the provided time period.
Article 90:Review applications shall be submitted in writing, with contents including:
(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.
Article 91:Review Committees should handle written review applications within 20 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 qualifications for an applicant are not met
2 . the period for applying for review has already past;
3. The matters for which review is requested are not within the scope of the original decision.
Article 92:Within three days of making a decision to accept a case, the Review Committee shall have the chairman of the Review Committee appoint a committee member to be the principle reviewer and four other committee members to form a review court to conduct a written review, and make a review decision following the opinion of a simple majority. Where the Review Court cannot achieve a simple majority opinion, it is submitted to the entire Review Committee for discussion and the review court, will make a decision based on the opinion of a plurality of the full Committee.
The Review Committee should notify the applicant within 3 days of forming a review court and inform him that he has the right to request recusasl; and a copy of the application for review is sent to the lawyers association disciplinary committee which made the original decision. The applicant may submit an application for the recusal of reviewers responsible for this case within 10 days of receiving the notification that the review court has been formed, and shall state the reasons.
Lawyers associations shall make a decision, orally or in writing, within 10 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 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 93: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 tribunal 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.
The review tribunal will make a decision according to the following discrete circumstances:
(1) Where the review tribunal 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 tribunal 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 tribunal 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 94:A written decision document should be drafted for decisions made by the review tribunal, and they will take effect after being signed and issued by the chairman of the review committee.
Article 95:Decisions by the review tribunal to sustain or modify the original punishment are final, and become effective on the date they are made.
Chapter VII: Investigation
Article 96:Mediation may be conducted during the investigation, hearing or punishment phases.
Article 97: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 98: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 51.
Article 99: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: Supplemental Provisions
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