Applicable object of lawyer's professional ethics. Article 2 of the Code of Professional Ethics and Practice Discipline for Lawyers stipulates: "Lawyers shall abide by this Code in their practice activities." Article 46 stipulates: "trainee lawyers and paralegals shall refer to these standards." Therefore, the applicable objects of lawyers' professional ethics include lawyers and interns and paralegals who assist lawyers in their business activities in law firms.
3. The content of lawyers' professional ethics, including the basic principles of lawyers' professional ethics and the rules of lawyers' practice discipline. The two are complementary. The professional ethics of lawyers in China has the following characteristics:
1. Occupancy.
The application object of lawyer's professional ethics is specific, which regulates the practice activities of lawyers and their assistants, so its professional ethics is distinctive.
2. Self-discipline.
Lawyer's professional ethics is a professional self-discipline norm formulated by the Lawyers Association, aiming at realizing the independence of the lawyer industry on the basis of industry self-management.
3. Realistic binding.
The realistic binding nature of lawyers' professional ethics means that lawyers will be punished after violating the provisions on lawyers' professional ethics.
4. Internal complementarity.
The so-called internal complementarity means that the basic principles of lawyers' professional ethics in China are general and principled, but they cover a wide range, while the practice discipline norms are clear and specific, but the scope is narrow. The combination of the two can complement each other. The professional ethics of lawyers in China includes 10. In these provisions, we should focus on two aspects:
Lawyer's duty of confidentiality.
Article 33 of the Lawyers Law stipulates: "A lawyer shall keep the state secrets and the business secrets of the parties he knows in his practice and shall not disclose the privacy of the parties." Article 8 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates: "Lawyers should strictly observe state secrets and keep the business secrets and personal privacy of their clients." According to the above provisions, the relevant rules on lawyers' professional secrets in China have the following characteristics in application:
(1) The scope of secrets that lawyers should keep includes state secrets, business secrets of parties and privacy of parties. A. The so-called state secrets, according to the provisions of Article 2 of the Law of People's Republic of China (PRC) on Guarding State Secrets, refer to "matters related to national security and interests that are determined according to legal procedures and only known to a certain range of people within a certain period of time". State secrets are classified into top secret, secret and secret. Among the above two provisions, the provisions of "Lawyers' Professional Ethics and Practice Discipline" belong to "state secrets", which is narrower than the provisions of the Lawyers Law. Theoretically, the provisions of the Lawyers Law with a wider scope should be adopted. B according to article 10 of People's Republic of China (PRC)'s anti-unfair competition law, the so-called business secrets refer to "technical information and business information that are not known to the public, can bring economic benefits to the obligee, and are practical and kept confidential by the obligee." C. The so-called privacy of the parties generally refers to personal life events related to the reputation of the parties that I don't want to disclose.
(2) The lawyer's duty of confidentiality has a follow-up. Article 39 of "Lawyers' Professional Ethics and Practice Discipline" stipulates: "After the termination of the principal-agent relationship, lawyers are still obligated to keep confidential the confidential information related to the entrusted matters. "This is because the confidentiality of related matters has not been eliminated because of the end of the principal-agent relationship. In order to ensure that the client can honestly and comprehensively disclose the relevant information of the case to the lawyer, the lawyer still has the obligation of confidentiality after the end of the principal-agent relationship.
Lawyer's legal aid obligation.
Article 10 of "Lawyers' Professional Ethics and Practice Discipline" stipulates: "Lawyers should consciously perform their legal aid obligations and provide legal help to the recipients. "Article 4 1 of the Lawyers Law stipulates:" Citizens who need the help of lawyers according to law in support, work-related injuries, criminal proceedings, claims for state compensation, and claims for pensions, but are unable to pay the lawyer's fees, can obtain legal help in accordance with state regulations. "According to relevant regulations, the objects of legal aid can be divided into general cases and special cases.
(1) Legal aid recipients in general cases
The purpose of establishing legal aid system is to guarantee citizens' equal right to legal aid and realize the legal principle of "everyone is equal before the law". As the object of legal aid system, it should be a citizen with China nationality. The general object of legal aid refers to China citizens who meet the following conditions:
(1) Having real financial difficulties, unable or unable to pay legal service fees.
The applicant has sufficient reasons to prove that his lawful rights and interests have been infringed.
The applicant must apply for a legal problem that needs the help of legal professionals.
(2) the legal aid object of special cases.
The object of legal aid for special cases mainly refers to several situations stipulated in Article 34 of the Criminal Procedure Law.
(1) General legal aid recipients. In a case where a public prosecutor appears in court for public prosecution, if the defendant fails to entrust a defender due to financial difficulties or other reasons, the people's court may appoint a lawyer who undertakes the obligation of legal aid to defend him.
② Special legal aid objects. If the defendant is blind, deaf, dumb or a minor and has not entrusted a defender, the people's court shall appoint a lawyer who undertakes the obligation of legal aid to defend him. If the defendant may be sentenced to death without entrusting a defender, the people's court shall appoint a lawyer who undertakes the obligation of legal aid to defend him. The discipline that lawyers should abide by in the work organization focuses on two contents:
1. A lawyer may not practice in more than two law firms at the same time.
(a) a lawyer shall not practice in more than two law firms at the same time. Article 14 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer may not practice in more than two law firms at the same time. Lawyers are not allowed to practice in two or more law firms at the same time, which is conducive to lawyers' better work. If a lawyer practices in more than two law firms at the same time, each law firm may appoint the same lawyer to handle the same case, which violates the provision that a lawyer may not represent both parties to the same case at the same time; Secondly, it is conducive to better safeguarding the legitimate rights and interests of the client. After all, a person's energy is limited, and it is impossible to complete a lot of work with high quality at the same time.
(2) A lawyer may not practice in more than two law firms and legal service offices at the same time. The business scope of grass-roots legal service offices and law firms is basically the same. From the perspective of legal services, they can be regarded as legal service institutions with the same nature. Therefore, Article 14 of the Code of Professional Ethics and Practice Discipline for Lawyers also clearly stipulates: "Those who practice in one law firm and one legal service office at the same time are regarded as practicing in two law firms."
3. Lawyers shall not accept the entrustment to undertake legal affairs without permission, and shall not collect fees, extra remuneration or property from clients without permission.
Article 23 of the Lawyers Law stipulates: "When a lawyer undertakes business, the law firm shall uniformly accept the entrustment, sign a written entrustment contract with the client, collect fees from the parties in accordance with state regulations and record them truthfully." On the one hand, it can prevent lawyers from charging arbitrary fees and safeguard the legitimate rights and interests of clients; On the other hand, it is conducive to preventing unfair competition. Article 15 of the Code of Professional Ethics and Practice Discipline of Lawyers also clearly stipulates: "A lawyer may not accept entrustment in his own name or collect fees privately." This part mainly grasps the following contents:
The obligation to maintain the integrity of the legal profession.
Article 20 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer shall not contact the judges, prosecutors and arbitrators in this case in non-office places for the purpose of influencing the trial and adjudication of a case, shall not give money or property to the above-mentioned personnel, and shall not trade with law enforcement officers who undertake the case with promises, returns or other convenient conditions.
The true obligation of lawyers to the court.
Article 22 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that lawyers shall collect evidence according to law, and shall not forge evidence, instigate clients to forge evidence or provide false testimony, and shall not hint, seduce or threaten others to provide false evidence. Article 23 stipulates that lawyers shall not meet with criminal suspects, defendants, their relatives or others in custody, and shall not take advantage of their positions to deliver letters, property or materials and information related to the case to the defendant in violation of regulations. The main purpose of these provisions is to ensure that the court can find out the truth of the case and make a correct judgment. This part mainly grasps the following contents:
A lawyer's duty of loyalty.
(1) A lawyer should make full use of his professional knowledge and skills, complete the entrusted matters with all diligence in accordance with the provisions of the law, and safeguard the legitimate interests of the client to the maximum extent.
(2) Lawyers should not accept legal affairs that they cannot handle.
(3) A lawyer shall follow the principle of honesty and trustworthiness, objectively inform the client of the possible legal risks of his entrusted matters, and shall not deliberately make improper statements or false promises about the possible risks.
4. Rules for the dissemination of lawyer service information.
Article 2 1 of the Code of Professional Ethics and Practice Discipline for Lawyers stipulates that lawyers shall not publicize their relations with law enforcement officers and relevant personnel with jurisdiction to their clients, and shall not use such relations to solicit business. The main purpose of this provision is to ensure the purity of information about lawyers' services, to avoid damaging the public's trust in judicial activities due to the dissemination of inappropriate information, and to avoid the clients having unrealistic illusions about the results that lawyers can achieve.
3. The principle of dividing the work authority of lawyers.
(1) In order to safeguard the legitimate rights and interests of clients, lawyers have the right to choose the methods to accomplish or realize the purpose of entrustment according to legal requirements and moral standards.
(2) If the matters or requirements to be entrusted by the client are prohibited by law or lawyer's practice norms, the lawyer shall inform the client and put forward suggestions for amendment or rejection.
(3) Lawyers shall engage in agency activities within the scope of authorization. If you need special authorization, you should obtain the written confirmation from the customer in advance. A lawyer shall not exceed the agency authority entrusted by the client, and shall not engage in activities unrelated to the entrusted legal affairs by using the entrustment relationship.
(4) Lawyers shall strictly abide by the principle of performing their duties independently, and shall not lose their objective and impartial position by catering to clients or meeting their improper demands, and shall not assist clients in committing illegal or fraudulent acts.
Principles of information exchange.
Article 3 1 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that lawyers should inform their clients of their agency work in a timely manner, and give them a reply as soon as possible to their legitimate requests for knowledge of the entrusted matters.
5. Do not arbitrarily refuse the obligation of agency and sub-entrustment.
(1) After accepting the entrustment, a lawyer shall not refuse to represent the client without justifiable reasons.
(2) After accepting the entrustment, a lawyer may not entrust others without the consent of the client.
6. Conflict of interest rules
There are two main aspects of conflict of interest rules:
(1) Conflicts of interest between customers. Article 28 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer shall not act as the agent of both parties in the same case. The same law firm may not represent both parties to the litigation, except that there is only one law firm in remote areas. The basic reason for these provisions is that if a lawyer acts as an agent for both parties or an interested third party in the same case, it will lead to the conflict between the lawyer's obligation to keep professional secrets and his loyalty to the client. For example, if a lawyer represents both parties in the same case, in civil litigation, if a lawyer represents both the plaintiff and the defendant, there will be secret information exchange between the lawyer and the plaintiff and between the lawyer and the defendant. According to the duty of loyalty to the client, the lawyer should use the secret information obtained from the defendant to serve the plaintiff, but this will violate his duty of keeping professional secrets to the defendant, harm the interests of the defendant and violate his duty of loyalty to the defendant. On the contrary, according to the loyal obligation to the client, the lawyer should use the secret information obtained from the plaintiff to serve the defendant, but this will violate his obligation to keep professional secrets to the plaintiff, harm the interests of the plaintiff and violate his loyal obligation to the plaintiff.
(2) Conflicts of interest between lawyers and clients. A. Article 36 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer shall not accept the benefits of the other party, and shall not ask for or agree on benefits from the other party. B. Article 37 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that a lawyer shall not maliciously collude with the other party or a third party to infringe on the rights and interests of the client. C. Paragraph 2 of Article 35 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates that lawyers shall not misappropriate or occupy the property kept for their clients. This part focuses on mastering the unfair competition rules of lawyers.
Lawyers shall not engage in unfair competition in the following ways:
1. Do not solicit business by belittling the professional ability and level of peers;
1. Do not provide or promise to provide kickbacks to undertake business;
3. Do not use news media or other means to provide false information or exaggerate their professional ability;
Business cards shall not be printed with various academic qualifications, academic qualifications, non-lawyer titles, social positions and honors;
5. Don't compete for legal affairs at a cost level significantly lower than that of peers. Lawyer's professional responsibility refers to all kinds of responsibilities that lawyers and law firms should bear because they intentionally or negligently violate relevant laws, regulations and professional ethics in their practice activities.
The professional responsibilities of lawyers include civil responsibility, administrative responsibility, criminal responsibility and disciplinary action. (A) the concept of lawyer's civil legal liability
Lawyer's civil legal liability refers to the civil liability for compensation that a lawyer should bear because of his illegal practice or his fault in the process of practice.
Article 49 of the Lawyers Law stipulates: "If a lawyer practices illegally or causes losses to his client due to his fault, his law firm shall be liable for compensation. After making compensation, a law firm may claim compensation from a lawyer who has committed intentional or gross negligence. Lawyers and law firms shall not be exempted or restricted from civil liability for losses caused to the parties due to illegal practice or fault. " Article 17 of the Code of Professional Ethics and Practice Discipline of Lawyers stipulates: "Lawyers who cause losses to law firms due to their practice mistakes shall bear corresponding responsibilities."
(B) the characteristics of lawyers' civil legal liability
According to the provisions of the Lawyers Law, the civil liability of lawyers has the following characteristics:
First, the subject of civil liability is a law firm. Article 23 of the Lawyers Law stipulates: "When a lawyer undertakes business, the law firm shall uniformly accept the entrustment, sign a written entrustment contract with the client, collect fees from the parties in accordance with state regulations and record them truthfully." The entrustment relationship between lawyers and clients is in the form of entrustment contract between law firms and clients, and law firms have management obligations to lawyers. Therefore, if a lawyer practices illegally or causes losses to the parties due to his fault, the law firm where he works shall be liable for compensation first. In addition, the establishment of a law firm requires certain funds. Therefore, compared with individual lawyers, it has a stronger economic foundation and a stronger ability to undertake civil compensation, which makes it easier to implement the lawyer's liability compensation system and safeguard the legitimate rights and interests of clients. After making compensation, a law firm may claim compensation from a lawyer who has committed intentional or gross negligence.