Lawyers should base their opinions on facts.
You can't just rely on the defense of the defendant, the opinions, words and hearsay of family members.
Case: In a bribery case, the defendant claimed that he did not accept a bribe of 80,000 yuan. But the record of the briber is clear, and the defendant also confessed. If the defender only based on the defendant's defense, put forward the view that "this section is unclear because of the defendant's denial, and the evidence is insufficient, so it cannot be identified". Prosecutors often say that "the defendant's confession in court cannot be established. He has already made a guilty confession, which is confirmed by the testimony of the briber. This case also excludes extorting confessions by torture and illegally obtaining evidence, and the evidence in the case is legal and valid. Defenders only deny the whole evidence chain of bribery on the grounds of one defense of the defendant, which can't shake the tree of guilty evidence system that constitutes the crime of bribery.
Defenders should pay attention to the following situations and problems when digging deeply into the defendant's defense:
1, the defendant's guilty confession was obtained under the condition of illegal evidence collection;
2. The defendant's guilty confession may have been obtained illegally;
3. The defendant's guilty confession is self-denial, which is uncertain;
4. The defendant's guilty confession is obviously inconsistent with the objective facts and cannot be established on its own;
5. The testimony of the briber was obtained in the case of illegal evidence collection;
6. The testimony of the briber may be obtained illegally;
7. The testimony of the briber is obviously contradictory and uncertain;
8. The testimony of the briber is obviously inconsistent with the objective facts and cannot be established by itself;
9. The profit-making facts on which the defendant and the briber are based do not exist;
10, lacking evidence of the source of bribery and the whereabouts of the stolen money, or having objective evidence such as confession, testimony and documentary evidence that cannot be confirmed.
If the defender can find the above problems, he can boldly put forward the view that "the guilty confession is not true, and the guilty evidence system has not yet formed a complete evidence chain, so the possibility of his defense in court cannot be ruled out". This makes the defense viewpoint based on facts more convincing and credible.
Analysis of common bribery cases: confession and evidence: confession does not withdraw evidence; Neither the confession nor the certificate was retracted.
Principle 2: Take the law as the criterion.
Lawyers should have a sense of norms and take the initiative to find evidence instead of taking it for granted.
Procedures and entities: national laws, regulations, norms, judicial interpretations, minutes of meetings, and judicial policies.
Case: The case of occupation. The defendant claimed that because the company owed him 500,000 yuan, he gave the company 300,000 yuan in payment. The procuratorate accused the defendant of corruption. Defenders believe that the defendant's purpose is to get back his reasonable remuneration, and there is no intention of illegal possession, which cannot be regarded as the crime of duty embezzlement or misappropriation of funds. After research by defenders, the City Intermediate People's Court has formed the Minutes of the Meeting on the Application of Laws to Economic Crimes, which clearly stipulates that this situation should not be recognized as the crime of embezzlement and misappropriation of funds. Therefore, the defender submitted the minutes of the meeting to the court for reference. Good results have been achieved.
Principle 3: We must abide by the lawyer's professional ethics and practice discipline.
Be honest and trustworthy, and safeguard the legitimate interests of the client.
Safeguard national laws and social justice.
Respect peers, help each other and compete fairly.
Consciously fulfill the obligation of legal aid
Case: Lawyer Chen once served as the defender of Zhang XX's theft case. After he was released from prison, Zhang XX was criminally detained on suspicion of committing another crime. In order to avoid aggravating the recidivism, Zhang XX appeared in court under the pseudonym of Zhao Xiaobao. Zhang XX's family once entrusted lawyer Chen, so they still entrusted lawyer Chen to defend Zhang XX. During the investigation stage, lawyer Chen found that Zhang XX had given a pseudonym, but he still provided legal advice to Zhang XX and did not report the situation to the public security organ. In the stage of examination and prosecution, Mr. Chen met Zhang XX once and suggested to Zhang XX and his family to report to the judicial authorities in real name. At the trial stage, lawyer Chen withdrew from the defense and Zhang XX entrusted other lawyers to defend. Zhang XX was sentenced in the name of Zhao Xiaobao. After going to prison, Zhang XX was accused of using a pseudonym to escape recidivism and was severely punished. After Zhang XX was re-investigated, prosecuted and tried, the plot of recidivism was increased. Excuse me, does lawyer Chen violate professional ethics?
A: Violation. Reason: Lawyers should "safeguard national laws and social justice". Therefore, after discovering Zhang XX's pseudonym, Mr. Chen is obliged to report the case to the public security organ. Teacher Chen not only did not report it, but continued to defend it, which obviously violated this regulation and violated professional ethics.
B, do not violate. There are three reasons: first, according to the provisions of the Lawyers Law, lawyers first safeguard "the legitimate rights and interests of the parties", and only on this premise can they give consideration to "social fairness and justice"; Second, Article 35 of the Criminal Procedure Law and Article 28 of the Lawyers Law stipulate that, as far as the duties of defenders are concerned, only innocent and light opinions and materials can be put forward, and the defendant's guilty and heavy opinions and materials cannot be put forward to the judicial organs. Thirdly, from the perspective of international lawyers' professional ethics, not betraying the client is the bottom line of lawyers' professional ethics.
If a lawyer doesn't think about the interests of the client, divulges the privacy and secrets of the client at will and betrays the interests of the client, then in the long run, people won't hire a lawyer for fear of being leaked and betrayed by a lawyer. In this way, the existence and development of the lawyer industry will be greatly affected. For the whole society, the healthy development of the lawyer industry plays an important role in protecting the legitimate rights and interests of the parties and balancing the state power and individual rights. Therefore, even if lawyers betray clients' interests and reveal clients' secrets individually, it will help the society to crack down on criminals, but compared with maintaining the healthy development of the whole industry, it is still not worth the candle.
Case: In the drug trafficking case of Maguyi 1 kg, neither the first defendant nor the fourth defendant admitted the crime, while the second and third defendants admitted the fact of drug trafficking. And admitted that he was instructed by the first defendant. The first defendant argued that he did not instruct the second and third defendants to sell drugs, but the second and third defendants sold drugs themselves, and he was wronged. The fourth defendant knew the first defendant very well, so he didn't identify the first defendant as a trafficker. All the above four people entrusted lawyers from the same law firm to represent them.
Principle 4: Seriously safeguard the legitimate rights and interests of the parties.
Should lawyers protect all the rights and interests of clients? Should we distinguish between legal and illegal?
Some people think: "It is the bounden duty of a lawyer to excuse his client. Whether it is a legitimate interest or an illegal interest. No matter what means are taken to maintain it. "
Some people think: "lawyers safeguard the legitimate rights and interests of the parties, and lawyers have no responsibility to safeguard the illegal rights and interests of the parties;" Lawyers must use legitimate means to safeguard the legitimate rights and interests of clients, and may not use illegal or even criminal means to safeguard the legitimate rights and interests of clients. "
Lawyers must also protect the legitimate rights and interests of their clients through legitimate channels.
A lawyer may refuse to entrust an agent for the illegal interests of the client, but may not betray the client or inform the judicial organ.
Case: In a affray case involving six defendants, one of the defendants denied participating in the crime, but all the other defendants believed that he participated in the affray, and the defendant could not provide valid evidence of his absence, and there was no other evidence to prove that he did not participate in the affray. Judging from the evidence in the case file, the defendant played a relatively small role and the other party was seriously at fault. If you have a good attitude of pleading guilty, you can strive for favorable punishment or even probation. If you don't plead guilty, you may need a heavier sentence. Where's the defense attorney?
Remind me fully and decide for myself: provide two schemes and tell me the possible results; The parties decide for themselves; Professional people do professional things to avoid settling accounts after autumn; Never make a decision on behalf of the parties.
What is the standard of satisfaction of the parties?
Good professional level-good professional attitude-good service awareness-good service quality-good social evaluation.
Principle 5: the principle of independent defense
Principle of independent defense: lawyers provide criminal legal services independently according to law and are not limited by the will of clients.
How to deal with the contradiction between lawyer and client?
There are six main reasons why lawyers and clients disagree:
The first case is that the lawyer thinks guilty and the party thinks innocent;
Case: In an illegal business case, the defendant set up a consulting company to deal in the stocks of unlisted companies. Both the defendant and his family believed that the act was not prohibited by law, and should not be considered as a crime in line with the principle of "nullum crimen sine lege". After in-depth study, the defense lawyers of the first instance believe that although there is great controversy, there are already guilty cases in Shanghai and other places. Therefore, the defense lawyer put forward the following defense opinions: 1. There is doubt whether the defendant's business behavior involves crime (list several reasons of the parties in detail); Second, the defendant's behavior involved in the case was carried out after consulting relevant experts and considered that it did not constitute a criminal offence, and its subjective malignancy was light; 3. When the defendant is the legal representative of his company and is summoned by the public security organ, he should take the initiative to accompany the legal representative to the public security organ to explain the situation and surrender himself; Four, the defendant returned the money of the relevant victims, should be given a lighter punishment as appropriate. The court held through trial that the defendant in this case has constituted the crime of illegal business operation, and the circumstances are particularly serious. However, considering that this case is indeed a new crime and the defendant has surrendered himself, the sentence was reduced to less than five years and sentenced to four years. If the party refuses to accept the appeal, he intends to consult the defense lawyer of the first instance. The defense lawyer believes that the sentence in this case is appropriate and the appeal is meaningless. The client also consulted other lawyers. Some lawyers think that the defendant should be innocent, so the parties entrust a lawyer as the defender of the second trial. During the second trial, the defense lawyer conducted full investigation and defense, and put forward detailed defense opinions of innocence. After hearing the case, the court of second instance held that the facts of the case were unclear and sent it back for retrial. Both sides and the defense believe that the innocent result is promising. When the court of first instance tried again, it did not adopt the defender's opinion and sentenced the defendant to six years' imprisonment on the grounds that his guilty attitude was not good and did not constitute surrender. The defendant refused to accept the appeal. After hearing the case, the court of second instance dismissed the appeal and upheld the original judgment.
In the second case, the lawyer thinks he is innocent and the client thinks he is guilty.
Case: A case of misappropriation of funds. The party concerned is the secretary of the village branch, in charge of finance. In order to do a good job in the village, he has taken out more than 400 thousand yuan of personal funds for village affairs. When the village sand contract was collected, 470,000 yuan went to the village account, and 40,000 yuan bought cars and computers. Defenders believe that in the case that the parties have set aside more than 400,000 yuan of personal funds, their behavior of recovering contracted funds for personal use did not infringe on the safety of funds in the village and did not meet the constitutive requirements of the crime of misappropriating funds. The defendant thought that his investigation was because he had offended some villagers. The case was led by the Commission for Discipline Inspection and investigated by the Procuratorate and the Public Security Bureau. Although understandable, it is impossible to be innocent. It has been locked up for nine months, and it would be great if I could get a suspended sentence.
The third situation is that the lawyer thinks that some situations must be said, and the parties think that they can't.
Case: A bribery case. Defenders believe that the investigation organ's continuous interrogation of the defendant is a confession by torture, so it should apply the rule of excluding illegal evidence and reject his guilty confession. On the other hand, the parties believe that accusing the procuratorial organs of illegally handling cases and extorting confessions by torture in court will arouse the resentment and anger of the procuratorial organs, and whether continuous interrogation is extorting confessions by torture is still controversial. I hope that lawyers can avoid stimulating prosecutors in court and sentence the case to probation when the amount involved is small. The defense lawyer fully considered the opinions of the parties. In court defense, he didn't directly present the fact that the procuratorate extorted a confession by torture, but pointed out the problem but didn't characterize it to attract the court's attention. In particular, he strengthened the objective and true defense of the evidence, pointed out that the defendant's confession attitude was particularly good and met the conditions of probation, and suggested that probation should be applied. The prosecutor did not raise any objection to the defender's opinion in court. The collegial panel finally adopted the defender's opinion and gave the defendant a lighter sentence and suspended sentence.
In the fourth case, the lawyer thinks that there are some situations that need not be said, but the parties insist on saying.
Case: In an illegal detention case, the defendant is the owner of a company and the victim is a tax administrator of an IRS. Because the victim sexually harassed the financial personnel of the defendant company, the defendant illegally detained the victim and beat and insulted him. In the course of litigation, the defense lawyer and the client reached an agreement, hoping to reach a settlement with each other, with a view to the other party issuing a letter of understanding, so that the defendant can get a lighter punishment, but it failed because the injured party did not agree. After the case reached the court, the victim entrusted an agent ad litem to strengthen the accusation against the defendant and demanded huge compensation. In view of this, defense lawyers also strengthened the investigation and evidence collection of the victim's fault and submitted evidence materials to the court. With the attention of the leaders of both sides, the two sides finally reached a settlement before the court, and the defendant apologized and compensated the victim. The victim issued a letter of understanding to the court, requesting the court to give the defendant a lighter punishment. Since the two sides have reached a settlement, the defense lawyer intends not to give detailed evidence and defense on the victim's fault in court. However, the parties strongly urge the defense lawyers to express their opinions on the victim's fault. After careful consideration and research, the defense lawyer presented the evidence of the victim's fault in court on the principle of respecting objectivity and seeking truth from facts, but did not exaggerate, but only made a general explanation. At the same time, in his defense opinion, he also stressed that since the two sides have reached a settlement and the contradictions and disputes have been resolved, the defender's discussion on the victim's fault in this case only hopes that the court can punish the defendant lightly when sentencing, and it will not be used for any other accusations against the victim. This not only explains the problem, but also respects the settlement result between the victim and the defendant, so that the case can be handled safely. After discussion by the collegial panel, the defendant was given a lighter punishment and suspended sentence was applied.
The fifth case: the lawyer thinks that some evidence is not suitable for direct investigation, but the parties insist on investigation.
Case: In bribery cases, the parties often ask to verify the situation with the briber. They believe that as long as the briber denies bribery, the fact of bribery cannot be identified, so they often ask lawyers to directly find the briber to investigate, or even contact the briber to arrange a place for lawyers to investigate. However, experienced defense lawyers can be aware of the risks. If the briber only investigates at the request of the family members of the parties concerned, he may be suspected by the procuratorate of perjury with the family members of the parties concerned. If the briber did not pay bribes and the testimony of bribery was made under some misleading circumstances investigated by the procuratorate, then the defense lawyer must also consider whether the objective facts can really change the legal facts that have been formed. If the original evidence source procedure is legal, the confession of the defendant who took bribes is stable and there is no other evidence to the contrary, I am afraid that the testimony cannot be established. If the defense lawyer delays the trial due to fact-finding, the procuratorate will inevitably re-investigate the briber and even take measures to restrict personal freedom. In this case, the briber will often change back to the original testimony, thus making the lawyer's investigation work useless. Of course, if there are grievances, defense lawyers should also uphold justice and safeguard justice. The general operation method is: if it is in the procuratorial stage, let it go directly to the procuratorial organ to testify again and explain the situation; Defenders may also apply to the procuratorial organs for direct questioning of witnesses; If it is the trial stage, you can apply to the court for a witness to testify in court and ask the witness to state the facts directly to the court; If the procuratorial organ does not conduct an investigation and the people's court does not inform him to testify in court, the defense lawyer may ask the briber to write a written testimony directly and submit it to the procuratorial organ and the people's court. For the opinions of the parties, defense lawyers must give corresponding explanations and eliminate their misunderstandings. Only by working together can we find effective ways to avoid risks.
In the sixth case, the parties think that the relationship should be taken, and the lawyer thinks that the relationship should not be taken.
Case: The client often asks the lawyer if there is any relationship. In our opinion, it is completely understandable that the parties want to take the relationship, but lawyers should adhere to the principle, do not engage in power and money transactions, do not bribe judicial officials, and make full defense opinions on the case reasonably and legally. At the same time, it is necessary to remind the parties to beware of litigation fraud and prevent brokers from making waves.
Other cases
In other cases, we should adhere to the principle that:
Adhere to the principle and not be a vassal; Effective communication and relative independence; Zhang Chi has a degree in handling science; Administer the country according to law and safeguard the legal system.
Principle 6: Keep state secrets, commercial secrets of the parties and the privacy of the clients.
Commentary: What is a state secret?
According to the Law of People's Republic of China (PRC) on Guarding State Secrets, the so-called state secrets refer to matters that are determined in accordance with legal procedures and are known only to a certain range of people within a certain period of time and are related to national security and interests. In some cases, due to the provisions of the law and the entrustment of the parties, lawyers can obtain relevant state secret materials. These materials can only be used by lawyers when performing their duties, and shall not be disclosed to people irrelevant to the case. Otherwise, you should bear corresponding responsibilities, and even bear criminal responsibility if the circumstances are serious. Intention and negligence can constitute the crime of revealing state secrets.
What are the business secrets of the parties?
Refers to the business secrets that lawyers have mastered and learned in handling criminal cases of companies and enterprises, which can only be used for entrusted matters and may not be disclosed to other personnel. If it is deliberately leaked, it will bear the corresponding legal responsibility, even criminal responsibility. If it is negligence, it will also be held jointly and severally liable.
In criminal cases, which belong to the privacy of the parties?
Everything about customers is private.
Generally speaking, the parties are reluctant to let the public know about their involvement in criminal cases, because once the public knows that they have been punished, their social evaluation will be reduced and their image will be correspondingly derogated. Therefore, in this sense, lawyers are obliged to keep secret the fact that their clients are subject to criminal punishment and should not publicize it everywhere. Therefore, it is inappropriate to publicize the criminal cases represented by oneself everywhere, even online, which may cause dissatisfaction among the parties. Therefore, unless the consent of the parties is obtained, or the names of the parties and the characteristics of the case that can remind people of the parties are hidden during preaching and publicity, so as not to cause unhappiness to the parties.
Whose privacy do lawyers protect?
In criminal cases, some involve the privacy of the client, such as criminal cases caused by marriage, and more are the privacy of the other party, such as rape victims. Do lawyers have the obligation to keep the privacy of victims confidential? There are no provisions in the Criminal Procedure Law, Lawyers Law, Lawyers' Professional Ethics and Practice Discipline. So can this reveal each other's privacy? We believe that lawyers' understanding of the privacy of the other party is based on the provisions of the law and the entrustment of the parties, and the purpose is to complete their duties, not for other purposes. If a lawyer uses the privacy of the other party he knows for other purposes, which is detrimental to the interests of the other party, it is an insult and needs to bear the legal responsibility for infringement. If serious consequences are caused, he may also be investigated for criminal responsibility.
Principle 7: Be reasonable, beneficial and restrained, do not treat guests and give gifts, and do not bribe judicial personnel to achieve benign interaction.
What kind of relationship should lawyers establish with the judiciary? How to establish this relationship?
Some lawyers believe that it is necessary to invite people to dinner and give gifts in order to establish a good relationship with the judiciary. We don't agree with this view, but as China is an individual society, it is probably difficult to completely avoid inviting guests to dinner and giving gifts. Therefore, the principle we grasp is: to realize benign interaction with judicial personnel, we should not only strengthen and deepen classmates, friends and peers, but also adhere to principles and handle cases according to laws and regulations.
How to deal with the relationship with classmates in judicial organs?
For the sake of justice, cut off the robe and break the righteousness?
The relationship between judges and lawyers in Hong Kong can be used for reference: drinking tea while handling cases. Drinking tea does not handle cases, and handling cases does not drink tea.
* * * Same body: * * Integration of learning and research. The necessity of judicial justice.
Friends, old colleagues, old leaders, etc. There is normal communication for the same reason.
Benign interaction, harmony but difference
Avoid: use special relationships to trade money;
Use the special relationship with the judicial department to attract business;
Fiction has a special relationship with the judiciary and can be used to obtain bail pending trial or sentence to probation; Lawyers are not allowed to ask customers for property on the grounds that they need to engage in relationships or invite them to dinner.
Remember: the independence of lawyers' work
No attachments to rely on;
Cooperation is not catering;
Harmony without integration;
Supervision without supervision;
Principle 8: Lawyers do not guarantee the outcome of the case.
Clients often ask, "Lawyer, how sure are you?" "Lawyer, can the lawsuit be won?" .
Can you promise the client? What can and can't be promised?
Bragging leads to complaints and cases damage reputation.
Can promise:
First, our professional ability can be guaranteed;
Second, our professional attitude can be guaranteed.
Case: In a case of intentional injury (causing death), the parties consulted several lawyers, but none of them promised not to sentence the defendant to death immediately. The last lawyer didn't make such a promise, but the client decided to entrust this lawyer as a defense lawyer. The lawyer never said this, so how did he win the trust of his client? First of all, lawyers have a detailed understanding of the case; Secondly, he listed five situations that could not be sentenced to death according to the case; Third, it lists every lawyer service plan. Then the lawyer explained to the parties that the lawyer promised that the result of the case was in violation of discipline and obtained the full understanding of the parties. In this case, the lawyer did not express his position directly, but pointed out the room for efforts in the case through professional analysis, which not only allowed the parties to establish the belief of entrusting him, but also avoided the risk of making a commitment to the outcome of the case.
Principle 9: Do not derogate from other law firms and lawyers.
Lawyer: Competition or cooperation?
Case: When a lawyer received a client, he heard that he had consulted other lawyers, so he asked the client for the lawyer's name and law firm and got the lawyer's advice. Later, it took half an hour to refute the lawyer's point of view, pointing out that the lawyer's professional level is low and his character is not good. He also mentioned that his law firm has been complained many times, and its character, products and opinions are not good. After listening to this, this client was very uneasy and continued to consult a lawyer. Another lawyer heard that the client consulted other lawyers, and after understanding the previous lawyers' opinions, he not only affirmed the reasonable components, but also put forward his own analysis opinions and service plans. They all praised lawyers before, without any belittling. The client finally chose this lawyer. The client said: a lawyer who made a mess of other lawyers, we doubt his character and maliciously belittle his peers. We think he is unreliable. Only a person who respects others and has professional knowledge can we trust him with important matters concerning family life and freedom.
Hello, so is he.
He is fine, and you are better.
Principle 10: Do not denigrate the image of the judiciary.
Destroying the image of the judiciary will destroy the source of lawyers' business.
Some lawyers: All successful cases are attributed to lawyers.
Losing the case is arbitrary by the court.
Letters and visits from the parties concerned
The judiciary is dark, corrupt and fatuous, and lawyers have no room for survival.
Lawyers are useful only if the judiciary is honest, fair and legal.
When people lose confidence in the rule of law, they will not choose to solve disputes through legal channels, but through corruption.
Lawyers attribute all the responsibility for losing the case to judicial corruption and ultimately bear the consequences.