The application scope of legislation on legal practice of lawyers in Vietnam: - In general, there is a numbers of criteria which needs to be satisfied by any candidate who wishes to prac
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Comment on the second draft of the Vietnam Bar Federation’s Charter
A General Issues:
I Current Legal Framework:
The organisation and operation of the Vietnam Bar Federation (“VBF) is strictly regulated by the following legislation:
- Law on Lawyers dated 25 June 2001 which came into force on 1st January 2007;
- Resolution No 65/2006/QH11 issued by the National Assembly of Vietnam on 29th June 2006 guiding the implementation of Law on
Lawyers;
- Decree no 28/2007/ND-CP of the Government dated 26 February 2007 guiding the implementation of Law on Lawyers.;
- Circular No 02/2007/TT-BTP of the Ministry of Justice dated 25 April 2007 guiding the implementation of Law and Decree no 28 on
Lawyers;
- Decision no 76/QD-TTg of the Prime Minister dated 16 January 2008 approving the Ministry of Justice’s project on the establishment of National Organisation of Lawyers
There are several important issues which have been clearly determined on the above legislation:
1 The application scope of legislation on legal practice of lawyers in Vietnam:
- In general, there is a numbers of criteria which needs to be satisfied by any candidate who wishes to practise law in Vietnam as a qualified lawyers:
(i) must be a Vietnamese citizen; and
(ii) hold a Bachelor of Law Degree (Law Graduate); and
(iii) obtained a certificate on completion of a professional training course for a period of 6 months (training student); and
(iv) undertook a training contract for a period of 18 months at a law firm (trainee); and
(v) passed an exam on training results co-organised by Ministry of Justice and VBF and obtained a certificate on the completion of such exam
from Ministry of Justice, and
(vi) obtained a practicing certificate issued by Ministry of Justice (practicing certificate holder) through a local bar association where the
candidate registered a training contract with
(vii) admitted to be a local bar member and obtained a Lawyer’s Card from such local bar association (qualified lawyer)
- In practice, a lawyer who practises law in Vietnam shall normally be required to submit to local courts or administrative authorities:
(i) a Practicing Certificate, and
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(ii) a Lawyer’s Card; and
(iii) Contract with the client
- There only a small number of candidates who finally become a bar member and practise as a qualified lawyer Majority of candidates practise law
as in-house counsels in commercial companies, work in various fields of business or become academic researchers/lecturers
- It seems obvious from the above lengthy process that legislation on legal practice in Vietnam regulates: law graduates, training students, trainees, practicing certificate holders and bar members
- However, legislation regarding legal practice of lawyers provides that National Organisation of Lawyers (i.e VBF) includes local bar associations and lawyers (bar members) only
2 Professional training course:
2.1 According to the current legislation on legal practice in Vietnam, there only two professional training course providers are:
(i) Judicial Academy belonging to the Ministry of Justice; and
(ii) a professional training course provider to be established by VBF
It means that VBF shall have to build up its own professional training course provider from Zero to satisfy certain high requirements of Ministry of Justice and there will be a competition between Judicial Academy of Ministry of Justice and VBF’s training provider in the near future
There is a legal restriction for any university, law school or law faculty to offer professional training courses for lawyers
2.2 Time for professional training is fixed at 6 months and there is no continuing professional development program (CPD) for lawyers after
being admitted to be a bar member (qualified lawyer)
Professional Training Program is provided by Ministry of Justice Local bar associations and VBF have no role in drafting/consulting on this training
program for lawyers
3 VBF’s functions and organisational structure:
VBF’s legal status, functions, missions and organisational structure are all clearly stated in the above legislation In fact, there only minor issues to be regulated in the VBF’s Charter as follows:
- other missions and authority of VBF than ones regulated by law;
- functions of other committees of VBF beside General Assembly, VBF Council and Standing Committee;
- structure and numbers of General Assembly’s members;
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- Mission and powers of Council members
- other missions and powers of Council than ones regulated by law
- Missions and powers of President, vice-presidents and general secretary of VBF’s Executive
- organisation, functions, missions and authority of VBF Office and committees
- other missions and authority of the Executives than ones regulated by Law
The author has, therefore, to limit its comments on the second draft of the Charter of Vietnam Bar Federation in line with the above current
legislation on Lawyers
II Methodology
1 The most concerns of Ministry of Justice regarding the organisation and operation of VBF
It is our understanding that the most concerns of MOJ are (i) to balance the relationship between the VBF and local bar associations and (ii) to
maintain regulatory role of Ministry of Justice in the development of legal profession
The difficulty is that there is a strong objection raised by local bar associations against the role of VBF as their management authority However, Ministry of Justice notices with deep concern about the separation of local bar associations
2 The characteristics of legal market in Vietnam
There are less than 6000 lawyers of 61 local bar associations for the population of over 85 millions
According to international listings such as: Legal500, Chambers & Partners, Practical law, Vietnam has a total of 16 following law firms with estimated 250-350 lawyers to be recognised to practise law in a professional manner under international standards:
o Vision & Associates
o LuatViet - Advocates & Solicitors
o Bizlink Lawyers & Consultants
o Detech & Associates
o Thang & Associates
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LEADCO
Invest Consult Legal Services
Saigon Law Offices
Dzungsrt & Associates
However, all those law firms are located in Hanoi and Ho Chi Minh city as main commercial centers of the country The rest of them are lawyers who may practise criminal & civil law in the courts or provide administrative services such as supporting the clients to set up new local companies or drafting simple legal documents for civil transactions Leaders of local bar associations mostly are well-known experienced civil and criminal litigation lawyers in their cities and provinces There are not so many
professional lawyers to participate in the leadership of local bar associations except a few of them in Hanoi and Ho Chi Minh city
It means that if the VBF’s leadership structure is formed by representatives of local bar associations, there will be not much
chances for young and well-trained professional lawyers to be involved in promoting legal practice in other new areas of law such as: commercial law, IP law, corporate law, bankruptcy law or international law
2 The organisational pattern of Law Society of England and Wales (UK):
Materials on Law Society of England and Wales are kindly provided by EU – VN LAW CO-OPERATION – REGULATING THE PROFESSIONS PROJECT
The author strongly recommends Ministry of Justice of Vietnam to learn experiences from Law Society of England and Wales in the regulation and promotion of legal profession in the UK The organisational pattern is learned from the Law Society of England and Wales (UK) in consideration with specific social and economic conditions and development level of legal profession in Vietnam The following issues should be noted:
- Membership of VBF should includes not only qualified lawyers but also covers training students, trainees and registered foreign lawyers in order to widely represent for their interests in the legal profession
- There should be a transparency in the operation of VBF’s council and its leadership mechanism
- Composition of VBF’s council shall consist of a reasonable percentage of (i) members who come from local bar associations on the
geographical basis and (ii) members who represent for various growing areas of legal practice on national basis
- The institutional structure of VBF should includes separate following committees with its respective functions:
(i) the Legal Affairs and Policy;
(ii) the Legal Complaints Service;
(iii) the Management;
(iv) the Membership;
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(v) the Regulatory Affairs; and
(vi) the Regulation Authority
- The above institutional structure is designed to perform two main functions of VBF, those are: representative and regulatory
- There should be a reasonable involvement of lay persons who represent for public interests, regulators’ interests and clients interests in the operation of VBF (e.g courts, Ministry of Justice and Vietnam Chambers of Commerce and Industry, etc.) in the institutional structure of VBF
- The main mission of VBF should be the promotion of legal profession and VBF should focus on various supporting services to be offered to
its members
Finally, VBF should request Ministry of Justice of Vietnam to work with international sponsors to extend the scope of EU – VN LAW
CO-OPERATION – REGULATING THE PROFESSIONS PROJECT and/or directly consult with Law Society of England & Wales regarding
institutional and organisational issues
B Clause by Clause Commentary: (to be continued on a separate page)