Legal Profession in China: admission and attorney-client privilege

Delen:

I am a seventh year associate working on Sino-foreign cross-border transactions from the Amsterdam office of HIL. In this blog I will shed some more light on the positions and requirements of a Chinese attorney.

1.  Admission to practice

To become a Chinese attorney, a candidate must first achieve a bachelor’s degree and then pass the Chinese bar exam, which is called the China National Judicial Examination (zhongguo guojia sifa kaoshi). After passing the exam, to be fully licensed, a lawyer must complete a year of work (apprenticeship) with a Chinese domestic law firm. Only Chinese nationalities (including residents in Hong Kong, Macau and Taiwan) are eligible for the Chinese bar exam. As in many other countries, bachelor of law is granted in China. However, a person holding a bachelor’s degree in any subject other than law can still take the exam. A former colleague of mine, holding a bachelor’s degree in civil engineering, educated himself on law for a year before passing the bar exam and now he is a quite successful real estate lawyer.

Like the American bar, Chinese bar exam uses both multiple-choice and essay questions to test a candidate’s knowledge and application of the law. How about the pass rate?  6.68% in 2002 and 20% in 2010. It is widely believed that the rising bar pass rate will continue for quite some time, as there will be an increasing demand for lawyers in China.

2.  Attorney-client privilege

Unlike in the Netherlands, attorney-client privilege is not yet a notion under the laws of PRC. It does not expressly establish that attorney may refuse to give testimony in court based on attorney-client privilege, or the information that should be used as evidence because it is protected by “attorney-client privilege.” However, certain provisions in the Law of Attorneys of PRC (amended in 2007&2012) and the PRC Code of Ethics for Attorneys show that the PRC’s government becomes more receptive to the concept of attorney-client privilege.

It is stipulated that attorneys shall keep confidential trade secrets obtained from and privacy of their clients. The law is silent on whether communications between attorneys and their clients shall be kept confidential as an attorney-client privilege. Nevertheless, if a client requests that the attorney keep certain information confidential, even though it would otherwise not be confidential, the attorney has the duty to keep this information secret. The only exception is related to criminal cases: if the information that the client requests be kept secret involves a criminal activity, which is, has, or will be committed, and would jeopardize national and public security, or if a client’s actions could cause someone serious personal or property damage, then a lawyer must disclose government authorities of those activities.

Li JiaoLi Jiao is the Chinese law advisor based in HIL Amsterdam. She specializes in a wide rang of China-related legal and regulatory issues and has worked for a number of first-tier Dutch companies on their projects in China.

 

Delen:

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