In order to ensure that lawyers perform their duties according to law, most countries in the world have stipulated the scope of lawyers' confidentiality very broadly. For example, Article 23 of Japan's Lawyers Law stipulates: "A lawyer or a person who has served as a lawyer has the right and obligation to keep the secrets he knows because of his position. However, unless otherwise provided by law. " Law 468 of France1June 9, 972 stipulates: "A lawyer shall not disclose any matters involving professional secrets." The American Standard Rules of Professional Conduct for Lawyers (1.6(a)) stipulates: "Unless the client agrees with the lawyer after consultation, the lawyer shall not disclose the case related to the agent." As can be seen from the above provisions, lawyers are obliged to keep secrets as long as they work as lawyers.
Compared with the above-mentioned countries, the scope of lawyers' confidentiality stipulated in China's Lawyers Law is too narrow, which is limited to state secrets, business secrets and personal privacy that lawyers know in their practice activities. It is not as good as the facts that the parties are unwilling to disclose in the practice of lawyers, especially the secrets of the parties in criminal cases. If a lawyer acts as the defendant's defender in a criminal case and knows the criminal facts concealed by the defendant but not discovered by the judicial organs in the process of listening to the defendant's statement of the case, according to Article 35 of the Lawyers Law, "a lawyer shall not conceal the facts in practice", the lawyer shall inform the judicial organs of the criminal facts concealed by the defendant, but this obviously contradicts the lawyer's defense duty. In addition, among the three kinds of secrets that lawyers should keep, what is personal privacy and the scope of personal privacy and business secrets are not clearly defined in the current laws of our country, which brings operational difficulties to lawyers' actual performance of confidentiality obligations, and also brings inconvenience to lawyers' management departments and judicial organs in handling lawyers' disclosure cases.
Second, the legislative provisions are not uniform, which makes it easy for lawyers to fall into a dilemma when performing their confidentiality obligations.
Article 35 of China's "Lawyers Law" stipulates: "Lawyers shall not conceal facts in their practice." Paragraph 1 of Article 84 of the revised Criminal Procedure Law stipulates: "Any unit or individual has the right and obligation to report or accuse a criminal fact or suspect to a public security organ, a people's procuratorate or a people's court." The "any unit or individual" mentioned here is not restricted by law, so I think it should include law firms and lawyers. Article 26 of the National Security Law stipulates: "If a state security organ refuses to provide relevant evidence knowing that others are engaged in espionage, it shall be given administrative sanctions by the unit to which it belongs or the competent department at a higher level, or detained by the state security organ on 15; If the circumstances are serious, it shall be punished in accordance with the provisions of Article 162 of the Criminal Law. " The subject of this clause is not specific, and anyone, including lawyers, should abide by it. For the above provisions, if a lawyer abides by them, he must inform the relevant authorities of the secrets of the case he learned from his client, which obviously violates Article 33 of the Lawyers Law, which stipulates that "a lawyer shall keep state secrets and business secrets of the parties he knows in his practice activities and shall not disclose the privacy of the parties." Therefore, it may be subject to legal sanctions or disciplinary sanctions, and at the same time, it will fundamentally shake the trust of the parties in lawyers and even make the public doubt the professional ethics of lawyers. In the foreign lawyer business, it may also cause other countries to doubt our lawyer system. However, if lawyers do not do so, they will violate the above-mentioned relevant laws and regulations and bear certain legal consequences.
Three, the law does not require lawyers to fulfill the obligation of confidentiality.
In criminal defense cases, should lawyers expose the defendant's crime when they know that the important interests of the country will or have been seriously damaged (but can be recovered) or that the defendant's criminal behavior will lead to serious injuries to many people? Another example is that in civil litigation, the parties and lawyers take action on disputes.