The following blog post was written by Amanda Soraiz, Guangdong Cheng, Xiang Liu, Yihong Zhang, Yuqing Zhao, and Kun Chang of Case Western Reserve Law School. It was submitted for the Legal Ethics Forum law student blogging competition. The entry was chosen as one of two winning entries after a blind review of the submissions. The other winning entry is here.
We live in an unprecedented age of globalization where it becomes more and more likely that, at some point in our legal careers, we will encounter attorneys from other countries or find ourselves in a multi-ethnic, multi-cultural exchange. For this reason it is increasingly important, now more than ever, that we acquaint ourselves with the rules and customs of other nations as a means to equip ourselves as better attorneys and global citizens.
As a group of students with American and Chinese legal backgrounds, we have come together to compare and contrast the Law of the People’s Republic of China on Lawyers (LPRCL) and the Model Rules of Professional Conduct (MRPC). Originally adopted by the American Bar Association more than 105 years ago, the MPRC is widely known and deeply embedded in our judicial system. In contrast, the LPRCL is much newer and less extensive, having come into effect June of 2008 and comprised of just seven short chapters. Yet the overlap and differences between the two sets of legal ethics systems provide a unique and insightful glimpse into the similarities and differences found between our two worlds.
License for Legal Practice
Before becoming a lawyer, a person who intends to practice law in the U.S. typically needs to graduate from an ABA-approved law school. Then in order to obtain a license to practice law, a law school graduate must apply for bar admission through a state board of bar examiners. Normally, this board is an administrative agency of the highest state court in the jurisdiction. In a few jurisdictions, such as Alaska, the board is served by the state’s bar association. The bar examination eligibility or the bar admission requirements are set by each state.
In contrast, a formal legal education is not a prerequisite for being a lawyer in China. In most instances, an undergraduate degree is required. Then to be qualified as a lawyer, one needs to pass the National Judicial Examination (NJE), administered by the Ministry of Justice. The exam is scheduled once a year. All legal professions, including judges, public prosecutors, lawyers and notaries are required to pass the NJE before being granted admission to practice. After passing the NJE, a person who intends to practice law must complete a full year’s internship at a law firm. Finally, he or she should submit an application to the judicial administration department of the people’s government of a city for review.
Law Firm Regulations
Under the MPRC, a lawyer who directly supervises the work of another lawyer must take reasonable efforts to ensure that the supervised lawyer adheres to the rules. A partner of a law firm who has managerial authority is liable for the misconduct of the lower level lawyers.
Under the LPRCL, a law firm shall establish sound systems for professional management and shall see that its lawyers observe the professional ethics and disciplines in their legal practice. However, the LPRCL does not require the managerial partner assume responsibility for the misconduct by the lower level lawyers. But this does not mean that the law firm itself can escape liability.
Both sets of rules prohibit law firms from engaging in non-legal services. The MPRC provides that a lawyer may not form a partnership or other business entity with a non-lawyer if any of the business’s activities consist of the practice of law, and the LPRCL requires that law firms shall not engage in business activities other than legal services. Moreover, referral agreement is not permitted under the LPRCL.
Duties to Clients
The MPRC and the LPRCL contain similar rules governing the attorney-client relationship. Our explanation of the distinctions between them will focus on three major topics: confidentiality, conflicts of interests, and relationship termination.
Both the MPRC and the LPRCL have strict provisions on confidentiality. Generally, lawyers are required to keep information relating to the representation in confidence. Under the MPRC, there are seven exceptions to the confidentiality rule, under which lawyers are permitted but not required to disclose confidential information. The LPRCL confidentiality rule contains three exceptions: (1) to prevent death or substantially bodily harm; (2) to protect national security; and (3) to protect public security. It seems that the LPRC have fewer but broader exceptions to get around the confidentiality rule, and it is unclear whether it is permissible or mandatory to disclose information under these exceptions.
As to conflict of interests, the major difference between the MPRC and the LPRCL is the rule of imputed disqualification. As a general rule under the MPRC, when one lawyer is disqualified due to conflict of interests, the whole firm is also disqualified. The LPRCL does not have a similar imputation rule. However, the LPRCL contains a rule that requires a two-year “cool off period” for judges and prosecutors who resign and want to act as defenders.
As to termination of attorney-client relationship, the LPRCL provides that clients can terminate representation at will, while lawyers cannot terminate unless they have good cause. It is noteworthy that the LPRCL allows a lawyer to terminate the representation if he finds that his client intentionally conceals material facts concerning the case.
In the U.S., bar associations are membership organizations designed to raise the standards of the legal profession and to encourage professionalism. Each state has its own bar association. In the majority of states, membership in the bar associations is mandatory for lawyers. The American Bar Association (ABA) is the largest lawyers association in the U.S., and also the largest professional membership organization in the world. One of the ABA’s most important activities is the creation and maintenance of model ethical codes related to the legal profession.
The largest lawyers association of China is the All-China Lawyers Association (ACLA). The ACLA is formed at the national level, and provinces and cities form local lawyers associations. Similarly, the ACLA carries out professional administration over lawyers in China. It sets the professional code and disciplinary rules for lawyers.
All lawyers of China are members of the ACLA. The LPRCL states that: “A lawyer or law firm shall join the local lawyers association where the lawyer or law firm is located. A lawyer or law firm that has joined a local lawyer association is, at the same time, a member of the All-China Lawyers Association.” In addition, the ACLA does not have the power to set the academic standards for law schools in China.
Similar to the MPRC, the LPRCL includes disciplinary warnings, fines, suspension and permanent disbarment. However, under the LPRCL, lawyers usually will not be permanently disbarred, unless a lawyer receives criminal punishment for an intentional crime or a lawyer keeps violating the rules. For instance, the LPRCL states that if a lawyer violates the rules, and “before the elapse of one year after he was given a disciplinary warning, conducts another act for which he should be given such a warning by way of punishment,” he will be suspended from legal practice for no less than three months but no more than one year; if within two years after the expiration of the suspension period, that lawyer conducts another acts for which he should be suspended from legal practice, his lawyer’s practice certificate will be revoked.