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Your Chinese Lawyer’s Duty Of Loyalty. What Me Worry?

Posted in Legal News

Interesting article in the most recent issue of James Zimmerman’s monthly newsletter.  Zimmerman authored the truly first-rate (and comprehensive) China Law Deskbook. If you are going to buy one English language book to assist you in figuring out the broad panoply of China’s laws, the China Law Deskbook is that book. Zimmerman’s newsletter article is on “The Issuance of the Notice of the Decision on the Establishment of the System of Lawyers Oath” which was very recently promulgated by China’s Ministry of Justice.  In layman’s terms, this notice sets out the oath required of all China licensed lawyers:

I swear to faithfully fulfill the sacred mission of legal workers in socialism with Chinese characteristics. I swear my loyalty to the Motherland, to the people, to uphold the leadership of the Communist Party of China and the socialist system, and to protect the dignity of the Constitution and the laws. I swear to practice law for the people, keep industrious, professional honest and corruption free, safeguard the lawful rights and interests of clients, maintain the right implementation of the law, uphold social fairness and justice, diligently strive for the cause of socialism with Chinese characteristics.

Zimmerman rightly notes that this oath is mandatory for Chinese lawyers working for Chinese law firms. and that a lawyer who refuses this oath will be denied his or her license to practice law.

Your Chinese licensed lawyer has taken this oath.

Zimmerman goes on to point out that this oath makes clear that Chinese licensed lawyers are not fully independent and “their expressed loyalty – and notwithstanding their personal views – is first and foremost to the State.”  He then discusses how this oath is “interference at best” and makes a Chinese lawyer’s “ethical standards” vastly different than that of American lawyers.  Your Chinese Lawyer. Trust Yet Verify?

  • Gomer Pyle

    I suspect that the key term in the PRC “lawyers” oath is “legal workers”?  China doesn’t really have “lawyers” as we normally think of independent advocates with a duty of loyalty and confidentiality to clients.  “Legal workers” represent the State.

  • Mike

    How does this conflict with Chinese lawyers who are also admitted to the NY BAR?  Won’t this oath possibly put them at direct odds with their ethical obligations required by the NY BAR and the ABA?  

    I don’t see it being a big issue, but if a lawyer is admitted in both jurisdictions and that lawyer is required to provide evidence or other info to the national or local Chinese govt. which violates client confidentiality, won’t that put them in a position where NY will need to investigate and possibly sanction or disbar that attorney?  

  • hcat

    You may be taking this oath too seriously. When I asked some Chinese lawyers (who were Communist Party members) what they did at their weekly party meetings, they replied that they played poker and chatted. As I recall, it was mandatory for them join the party, not a choice, so most do not believe in party ideology.

    It is nice to pledge an oath.  But I find it much easier if people just use common sense and decency in their representation of their clients.  We are adults, trained professionals, most of the time, we know right from wrong without the need to reference any oath. 

    Lastly, I have nothing but good experience with Chinese law firms. They have been utmost professional, humble and hardworking.  I do not know where all the horror story is from.  Do you guys even interview lawyers before you hire them?  Or do you hire from mom and pop law firms? If you are unwilling to spend the fees, then you get what you pay for.

    Btw, here are some complaints I have heard from Chinese lawyers about “western” law firms: some western law firms are professional, produce great work product, but others are arrogant, lazy and the work product quality is shockingly bad.  There is even an instance of a law firm that charged the Chinese client almost US$500,000 for attending a few meetings.

    So there are good and bad lawyers everywhere. I do not think the oath makes that much of a difference.  If they are going to cheat their client, they will, regardless of the oath. 

  • Twofish

    I don’t think this is terribly important.

    If you are in a situation where you are actually fighting the Chinese government then your lawyer isn’t going to be of much help anyway.  Most legal disputes in China involve parties with roughly equal “political pull” simply because any dispute in which one side had a lot more political pull than the other would not be handled in the legal system.

    It’s also less relevant for business situations.  In human rights cases, there are important principles at stake.  In business, it’s all about the money, and whereas a human rights activist has good reasons not to give in because there is a principle at stake, business is business, and if you find yourself fighting the entire Chinese government, it is (with rare exceptions such as a PR issue) bad for profits not to give in and do whatever it is that the government wants you to do.  Now if you get caught in a fight between two parts of the Chinese government, that’s a different issue.

  • Matthew McKee

    Is it any different to the oaths required to be given by lawyers in most countries?

    In New South Wales, Australia, upon admission lawyers must swear or declare and affirm that they will truly and honestly conduct themselves in the practice of a Lawyer
    of the Supreme Court of New South Wales and that they will faithfully
    serve as such in the administration of the laws and usages of the State according to the best of their knowledge, skill and ability.

    It does not seem to be overly different to me.

  • Wangguopi

    Did anyone from Harris & Moure take this oath from your China offices or not?

  • Timothy Matlack

    You can think what you want and believe what is right and that common sense prevails but it doesn’t.  Caveat Emptor.  Hire a Chinese lawyer at your own peril.  I once had the head of police during an arbitration explain to my Chinese associate that she was being unpatriotic and had a duty to her country first, even though what they were asking us to accept was beyond any reasonable fairness – they just wanted it to go away and were willing to use all tactics including the threat of revoking her license to practice law in China. Good for her, she stood up and said that her boss’s responsibility was to his client and hers to her boss.  She is the only one in many years that hasn’t budged and that’s because she gets it.  The rest don’t nor can they.

  • Mi_fu

    I am not a lawyer, I am an engineer  …

    for me law is not a quasi-religious dogma that is above everything. The legal system should serve the people, otherwise its a waste of resources.
    Therefore the oath is fully o.k. for me, I am only worried that sometimes it is NOT taken seriously. (corruption free, uphold social fairness and justice …)
     

  • Annie Lei

    I am a Chinese lawyer and provide legal
    services to foreign enterprises. I don’t think the loyalty oath creates any
    conflict of interest.  In practical terms,
    the impact on service to a client from requirements under the state in China is
    no different than in other countries. I understand the term “uphold the
    leadership of the Communist Party of China and the socialist system” can raise
    questions about a lawyer’s commitment to a client.  But in reality, this is another patriotic
    slogan, not unlike the red banners we see all over Beijing urging the public to
    act in certain ways, rather than an enforced requirement.  In my 10 years of working as an attorney in
    Beijing, I have never experienced nor witnessed an instance where a client’s
    interest is sacrificed in the interests of the state. Therefore, please don’t
    be panicked by the Chinese lawyer’s oath.

  • Gplo

    For all of those wondering, there is no Attorney-Client Privilege in China.This is why King and Wood and Mallesons had to create a “Chinese wall” in their IT system and make sure that the Chinese part could not access clients’ data from the Australian part.
    Most PRC lawyers are members of the Communist Party.