The scope of lawyer's duty of confidentiality refers to the contents that should be kept confidential. The provisions on lawyer's confidentiality obligation in various countries in the world usually extend to the secret called lawyer's professional identity, which is wider than the "known in practice" defined by our law. Judging from the actual situation, the secrets that lawyers know are not limited to "what they know in practice".
Article 38 of China's Lawyers Law defines the scope of lawyers' confidentiality obligations as four categories: state secrets, business secrets, privacy of parties, and information that clients and others are unwilling to disclose. "In practice" itself is not a very clear concept. In order to locate accurately, we might as well analyze it from three aspects: startup time, startup mode and information source. The starting time of practice activities should not be limited to the duration of the entrustment relationship, but can also be considered as "in practice" before and after the establishment of the entrustment relationship; The way to start can not be limited to the information and situation exchanged by the client and the lawyer in a formal way on formal occasions; As for the source of information in the process of practice, it is not enough to think that it comes from the client. Accordingly, the identification of "in practice" can be summarized as follows: as long as the client, criminal suspect or defendant and their families have reason to believe that they are exchanging information with lawyers, lawyers have the obligation of confidentiality.
Second, the scope of the lawyer's duty of confidentiality.
The effective scope of lawyer's confidentiality obligation refers to the time range of lawyer's confidentiality, which is directly related to whether lawyer should undertake confidentiality obligation. Our country's law only stipulates that lawyers should or have the right to keep four kinds of information they know in the course of practicing, as well as the situations and information that clients and others are unwilling to disclose, and does not stipulate the effective scope of confidentiality, and the practice period cannot be equal to the confidentiality period, because lawyers' confidentiality obligations will not end with the end of their practice activities. The author thinks that the confidentiality period should not only include the establishment period of the entrustment contract.
First of all, the start time of lawyer's confidentiality obligation. The starting time of lawyer's defense or agency activities is generally when the entrustment contract is established, and the lawyer's confidentiality obligation often begins before the client and the lawyer reach the entrustment contract, and cannot occur at the same time as the lawyer's defense or agency business. If one party contacts the client as a lawyer or as a lawyer's personnel and the two parties engage in exchange activities, the lawyer shall abide by the confidentiality obligation before or after the establishment of the entrustment contract.
Secondly, the termination time of lawyer's confidentiality obligation. There is no clear stipulation in our country's law. However, scholars have reached an understanding that "the obligation of confidentiality does not necessarily end after the end of professional activities". When the lawyer's confidentiality obligation ends, we should pay attention to the following questions: First, after the entrustment relationship ends, the lawyer should also abide by the confidentiality obligation, but it depends on the different information and circumstances held by the lawyer; Second, both state secrets and business secrets have certain timeliness, so when the secret that needs to be kept secret is no longer a secret, there is no need to keep it secret. Third, the privacy of the parties and the information and circumstances that the client and others are unwilling to disclose have certain privacy, and lawyers should abide by the confidentiality obligation before and after entrustment.
Third, the scope of lawyer's duty of confidentiality.
About the object of confidentiality obligation, that is, to whom. The confidentiality here should generally be regarded as the confidentiality of the judicial organs. When the judicial organ requires the defense lawyer to testify, the lawyer has the right to refuse to testify When the judicial organ requests the defense lawyer to provide information, evidence or materials that are not conducive to the parties, the defense lawyer has the right to refuse.
Whether lawyers should keep secrets from clients and their families. "Client" refers to a person who seeks lawyer services to obtain legal help, and should include natural persons, organs, companies, groups or members of other public and private organizations. Because different cases and different litigation stages of the same case have different confidentiality requirements for clients and their families, this issue cannot be generalized. If the situation and information learned by a lawyer in the course of practice are all about the client himself, there is no confidentiality obligation for him.
First of all, whether to keep secrets for the parties and their families in non-criminal cases. Non-criminal cases, that is, in most civil cases, non-litigation cases, legal consultancy, consulting, writing on behalf of books and other businesses, the client is often the most closely related stakeholder in the case, and there is no third party between the client and the lawyer. In this case, the lawyer's knowledge of the case usually comes from the client himself, so there is no need to talk about confidentiality. However, if the client is a legal person or other organization, such information may only be known to some people, and it may not be disclosed to other people who do not know without the authorization or consent of the legal person or other organization. This duty of confidentiality also requires that the family of the party concerned be kept confidential.
Secondly, whether to keep secrets for the parties and their families in criminal cases. In criminal business, the content of communication between lawyers and relevant personnel should be limited to verifying the case, and there is no need to say what they have learned from marking and investigation. Because defense lawyers are legal workers, compared with them, defense lawyers have a solid professional foundation and rich practical experience. If there is anything to inform them, it will sometimes hinder the exercise of defense functions. Moreover, lawyers have independent legal personality and can engage in legal activities according to their own will, without being attached to anyone else.
Four. conclusion
The lawyer's duty of confidentiality plays an irreplaceable role in criminal proceedings, and its content, effectiveness and object range are rich. Through clear provisions, it is more conducive to the judicial application of lawyers' confidentiality obligations. The lawyer's duty of confidentiality is of great value to the client's trust interests and the lawyer himself. At the same time, it can effectively protect the rights and interests of clients and ensure the healthy and orderly development of the lawyer industry. Through the discussion on the legislative status, value, scope and exception provisions of the confidentiality obligation, we have a deeper understanding of the relevant contents of the lawyer's confidentiality obligation, and on this basis, we put forward our own views and opinions in order to be beneficial to the improvement of the lawyer's confidentiality obligation.