DUTIES OF LAWYER TO THE COURT

PREFACE The form of principles of ethics and lawyer professional behaviors relax to judiciary bodies, other state agencies as well as colleagues have particular importance in evaluating

VIETNAM NATIONAL UNIVERSITY

OF HO CHI MINH CITY UNIVERSITY OF ECONOMICS AND LAW

FACULTY OF LAW ====●O۝Ο●====

CATEGORY

PREFACE 4

Chapter 1 DUTIES OF LAWYER TO THE COURT AND OTHER PUBLIC AGENCIES; RELATIONSHIP WITH OTHER LAWYERS IN VIETNAM 5

I PRINCIPLES OF LAWYER RELATION BETWEEN JUDICIARY BODIES AND OTHER STATE AGENCIES 5

1.1 Study purpose, significance 5

1.2 Codes adjustment 5

1.3 The cause forming the relationship between lawyer and the judiciary bodies and other state agencies 6

1.4 Nature of relationship 7

1.4.1 The relationship between lawyer and judiciary bodies 7

1.4.2 The relationship of the lawyer and other state bodies: 8

1.5 The behavior of the lawyer in relationship with proceeding authorities 9

1.6 Laywers are forbidden form the following in relationship with judiciary bodies 11

1.7 The behavior of the lawyer in relationship with other state bodies 12

1.8 Practice: 13

II THE RULES OF RELATIONSHIP WITH COLLEAGUES 14

2.1 Study purpose 14

2.2 Study significance 15

2.3 The behavior of the lawyer in relationship with colleagues 15

2.3.1 Rule 15: Protect dignity and credibility of the lawyers 15

2.3.2 Rule 16: Respect and cooperate with colleagues 16

2.3.3 Rule 17: Colleagueship among lawyers 18

2.3.4 Rule 18 Profession Competition 19

2.3.5 Rule 19: Code of conduct in case of right and interest conflicts with colleagues 20

2.3.6 Rule 20: Behaviours forbidden in relationship with colleagues 21

2.3.7 Rule 21: In relationship with lawyer social – professional organizations – and

legal practicing organizations 22

2.3.8 Rule 22 In relation with the lawyer apprentice 23

2.4 Practice 24

Chapter 2 DUTIES OF LAWYER TO THE COURT AND OTHER PUBLIC AGENCIES; RELATIONSHIP WITH OTHER LAWYERS IN FRANCE 26

INTRODUCTION 26

I THE DUTIES OF THE LAWYER 27

1.1 The principe of independence 28

1.2 The principe of loyalty 29

1.3 The principe of confidentiality 30

1.4 The respect of the professional secret 30

1.5 The duty of information, advice and diligence 32

II THE RELATIONSHIP OF THE LAWYER 33

2.1 The relationship of the lawyer with his client 33

2.2 The relationship of the lawyer with his colleagues 34

2.3 The relationship of the lawyer with the other agencies 35

CONCLUSION 36

REFERENCE MATERIALS 37

PREFACE

The form of principles of ethics and lawyer professional behaviors relax to judiciary bodies, other state agencies as well as colleagues have particular importance in evaluating positions, the roles and the effectiveness of lawyer professional activity

Deeply experienced, flexibility and clever application of the rules will help to raise the lawyer’s sense of self-awareness to execute obligation ethics and professional behaviors and communication; to limit errors, misconceptions and violations, to improve the efficiency of work, to contribute to the social function of lawyer, to establish strong position and effective voice in the cause of state’s jurisdiction, respect and protection of human rights in the judiciary, gain respect from judiciary bodies, other state agencies and colleagues

CHAPTER 1:

DUTIES OF LAWYER TO THE COURT AND OTHER PUBLIC AGENCIES; RELATIONSHIP WITH OTHER LAWYERS

IN VIETNAM

I PRINCIPLES OF LAWYER RELATION BETWEEN JUDICIARY BODIES

AND OTHER STATE AGENCIES

1.1 Study purpose, significance

Due to the require of professional activity, the relationship between lawyer and judiciary bodies has established a regular and close To specific the principles in this relationship requirement in legal awareness

Understanding the principles, lawyer will pay attention, build, establish relationships lawyer and judiciary bodies, promote better, healthier relationships, proactive positive and above all is to bring benefits of legal work

Lawyer not only appears to institute the defense counsel through criminal cases but also the preserver of legal rights for the litigant or the representative for the litigant in civil, administrative, economic, labor,…

Lawyer not only participates in legal action but also participates in arbitration lawsuit disputes

In addition, the provisions in Rules 23, 24, 25 of the Vietnam Ethical Rules and

Code of Conducts for Lawyers, issued in accordance with Decision 68/QD-HDLSTQ

20th July 2011 of national lawyer council

In essence, lawyer’s activity is presented in all legal relationships, involved in legal protection for organizations and citizens in various legal capacity

1.3 The cause forming the relationship between lawyer and the judiciary bodies and other state agencies

- Cause 1: In reality, the legitimate rights and benefits of citizens is at risk of

being harm Therefore, to assure the right of the counsel – subject executes an essential exculpate function - is considered to be an indispensable condition for ensuring the principle of fair litigate, giving criminals the change to access to justice and proceeding

in criminal has its intrinsic democratic nature

- Cause 2: At present, laws determine in specific legal status of the judiciary

bodies with defenders is different, to a degree that there yet to have legal and practical equality In social terms, lawyer has not been recognized as an independent judiciary, so

he has not been involved more in state of law building process and democratizing aspects

of life, have yet cover all the provision of legal services to citizens, especially underserved regions, economic zones, rural areas, mountainous areas, islands,… To a certain extent, the judiciary bodies, other state bodies and society perception on the position, the role of lawyer is disregarded, indifferent and place this important

professional in general position of interaction and criticism as constituting constituent judicial operators

- Cause 3: On the other hand, also pay attention to the fact that some lawyers lack

of professional skills and ethics, so throughout practice of profession process, only interests in customer’s benefits at all costs, resulting in poor awareness, behaviors and actions to the judiciary bodies and other state bodies, born the idea of “your right, my right”, lead to the risk of law violation, ethics and behaviors in practice

Therefore, the correct concept of opponency relationship between criminal procedure functions, identify essence of relationship between lawyer and the judiciary bodies and other state bodies is important in each lawyer’s practice in profession When performing their social function, lawyer also contributes to build socialist state law process, guarantee of human rights, the bridge to transmit, bring law into society, healthy society relationship and is the basic to help each lawyer have a right choice of behavior

1.4 Nature of relationship

1.4.1 The relationship between lawyer and judiciary bodies

Lawyer contact, accurately identify judiciary bodies, officials to participate in the lawsuit, participate in interrogation sessions, work between investigators, procurators and judges with the defendant; carry out some activities, operations, skills, exercise the rights and obligations, what should be done and what should not of the defense counsel in criminal lawsuit… Lawyer must know how to apply, being flexible, proper when involved in each sphere of work or litigation stage, makes requests or recommendations, petitions are accurate and appropriate (1)

Attitudes and behaviors when participate in lawyer’s court (and through lawyer, is client’s attitudes behaviors) to the litigants position, the role of lawyer in the litigation

1 Art 22, LAW On Lawyers 2006

Art 24, Art 76 Civil Procedure Law 2015

Art 76, Criminal Procedure Law 2015

shows objective truth of the case, on the basic of protecting the client’s rights and benefits

Perception and behaviors in life, ensure in handling these relationships in a healthy, standard way, without engaging, mediating and interconnecting judiciary bodies and officials into illegal act, or deliberately misleading the acquaintance to influence the client’s choice of lawyer; defame, offend, affect the reputation of judiciary bodies.(2)

1.4.2 The relationship of the lawyer and other state bodies:

When working with representational behavior outside litigation, the lawyer advises or provides some legal vevices to customer The scope of this relationship is often more fexcible, abundant and multitorm than he hard standard when joining the litigation in criminal case

It is this difference that the lawyer defy some have priciple such as preparing posture, attitude, action and behavior to state bodies or the person being responsible for solving the work, demand of customer

The state bodies are subjects that the lawyer often exchange, contact They have a lot of different rank and form, expand all field of life and society In order to have standard behavior an attitude and respond the demand of customers, the lawye need understand jurisdiction, function and duty of state bodies, person being reposible for solving the work as well as process, solving-time, limit of advise and obility to respond demand of customer

On the other hand, this relationship also have many conflict because the lawyer can't respond demand of customers, they will be angry and complain, report to rise suddenly in rank and untrue Therefore, this effects negatively to solving-process as well

as prestige of state bodies Obeying and using principle of the moral and the behavior

2 Art 9, LAW On Lawyers 2006

correctly will help the lawyer reach belief from customer, and the respect from state bodies to them

1.5 The behavior of the lawyer in relationship with proceeding authorities

According to Rule 23 in Vietnam Ethical Rules and Code of Conducts for

Lawyers (Issued in accordance with Decision 68/QD-HDLSTQ 20th July 2011 of

national lawyer council)(3)

- Lawyers must stricly comply with the regulations in relation to judiciary bodies; cooperate, respect and remain polite with those officials in the judiciary bodies This is clearly provided in this principle

- Lawyer can exchange professional opinion with officials in the judiciary bodies during the process of case handling, if necessary and beneficial to client, however, still remain independent, not affected by other opinion which affect the protection for clients However, the perception of the scope of contact, location of contact and understanding of what is "exchange of professional opinion" with officials in the judiciary bodies should

be clarified The contact and exchange in principle should be conducted openly, at the office of the judiciary bodies, in the office hours, related mainly to the exchange of grounds for conviction and evidence, provided collected document by lawyers, verified

or requested justifyings to protect legitimate interests, change the preventive measures for client, Lawyers need to acknowledge the contact and exchange of opinions on the business is necessary and beneficial to client, so must be independent, not dominated or depended on other opinions which may affect their opinions, defense plans, protect clients' legitimate interests

- At court, lawyers comply with the court’s regulation, respect judiciary council, representative from procuracy; well behave when practice the witnesses and other

3 Vietnam Ethical Rules and Code of Conducts for Lawyers (Issued in accordance with Decision 68/QD-HDLSTQ 20th July 2011 of national lawyer council)

involved persons; not speculate subjectively to convict other person or have words to harm the client; not postpone or delay the judiciary proceedings by unreasonable or immoral manner In fact, some lawyer’s point of view always covers subjectivity, the issue that needs to be differentiated is avoiding unilateral and subjective aware cause that words, actions and documents sent judiciary bodies have the words and sentences which are provoking, shooting, accusing others This often happens in practice, either because the attorney's position is based on different interests of the client, or because of the lack

of restraint resulting in a personal disregard for the content of the dispute case

- In arguments, lawyers must quote legal, important evidence to help solve the case objectively, legally as well as protect the laywer’s opinion resolutely On the other hand, practical participation in the proceedings in the criminal case shows that point of view, lawful evidence and legal basis that are important to resolve the case objectively and legally are not surely considered by the trial panels In the dabate, Lawyers need to have a cultural and standardized atitude, both presit in protecting legitimate, justifiable point of view and arguments and adjust in a timely manner, record grounded view of procurator and Lawyers protecting people who have conflicting interests with their customer, to advoid to be considered as

- Lawyers remain calm and have rights to request reasonably, legally against misbehaviours such as disrespect of the lawyer or laywer’s client at the court as well as during the judiciary proceedings

1.6 Laywers are forbidden form the following in relationship with judiciary bodies

According to Rule 24 in Vietnam Ethical Rules and Code of Conducts for

Lawyers (Issued in accordance with Decision 68/QD-HDLSTQ 20th July 2011 of

national lawyer council) (4)

- Directly or indirectly deal with the officials from judiciary bodies to persuade them to handle the case illegally;

- Provide information, documents, evidence that laywer know it is untrue; participate or guide client to provide untrue information, documents, evidence to judiciary bodies or other fraud activities to deceive judiciary bodies;

In principle, the content of rule 24.1 and 24.2 is considered clear, in accord with regulations of Point b, e paragraph 1 article 9 in Law on lawyers 2006, amended

2012:

b) Deliberately provide or guide clients provide documents, evidences are untrue; encourage detainees, internees, indictees, the person concerned to make a false statement

or encourage clients to complain, denounce, claim illegal

e) Hook up, relate to officials in the judiciary bodies, proceedings participants, officials, public servants, office-holders to act against the law to solve the case

- Lawyers carry out or help client carry out illegal activities to delay or cause difficulties to judiciary bodies and their officials during the handling of the case The concept of “illegal” in this case include that the lawyers know clearly about request delayed, prolonged solving the case without legal basis, but carry out or incite clients carry out to delay or cause difficulties to judiciary bodies

- Criticize or offend persons in the judiciary proceedings;

4 Vietnam Ethical Rules and Code of Conducts for Lawyers (Issued in accordance with Decision 68/QD-HDLSTQ 20th July 2011 of national lawyer council)

- Abuse the role involved in the judiciary proceedings to comment and harm national, social benefits, national, religious solidarity or propagandize illegal or immoral points of views Lawyers must be aware of a lawyer’s social fuction, lawyers must not take advantages as a participant in the proceedings at the court according to regulations of the Law, to make speeches that harm the National benefits, social benefits, national unity, religion or to spread points of view that go against the Law or societal morality Those must-not-do things mentioned above is different in essence compared to when a lawyer, while participating in the proceedings, has figured out and made suggestions which aims

to end up Law violations in the actions of judiciary bodies Bravery, political qualities and job skills, along with practical experience are the things that will help every lawyer self-regulate the boundaries so that their actions can go along well with those rules above

- Misbehave such as leaving without permission when in the judiciary proceedings which affect legitimate rights and interests of clients and activities of the Trial panel;

- Make untrue annoucement on mass media or in public places on issues handled

by the lawyer, aiming to adversely affect activities of judiciary bodies and officials

1.7 The behavior of the lawyer in relationship with other state bodies

According to Rule 25 in Vietnam Ethical Rules and Code of Conducts for

Lawyers (Issued in accordance with Decision 68/QD-HDLSTQ 20th July 2011 of

national lawyer council) (5)

- In relation with other state bodies as extrajudicial representation, consultant or provider of other legal services to clients, lawyers must comply with regulations in Rule

lawyer’s professional practice often encounter cases as authorized representation or the lawyer advises long and complication appealable matters, go through many ranks, inside

of including the requirements of customer which exceed normal administrative procedure standards (for example, from unresolved appeal, being incited by others, inducing large numbers of people to gather or demonstrate with banners or slogans which oppose, distort state’s policies, laws etc) That’s the reason why in such cases, lawyers are responsible for explaining to clients about legal regulations on complaint lodging, accusation to advise client not to lodge illegal complaints or accusation that waste time and resource of the State, people and affect state management on social security

- Lawyers are responsible for explaining to clients about legal regulations on complaint lodging, accusation to advise client not to lodge illegal complaints or accusation that waste time and resource of the State, people and affect state management

on social security;

- Laywers must not delay or cause difficulties to authorized state bodies in handling cases he/she is undertaking as the representation, advisor or provider services to customer

1.8 Practice:

From the above rules, each lawyer need apply rightly, creatively, flexibly for each individual and case to establish a strong position and critique in the cause of building state of law; respect and assure the human right in judiciary activity; being respected by judiciary bodies, other state bodies and colleague

Although the law has specific provisions on the code of conduct of lawyers with state agencies, actually, there are many lawyers violating this rule 1st quarter of 2017, the Ministry of Justice decided to revoke the lawyer's practice certificate in 29 cases, of which 17 were withdrawn according to their wishes and 12 were disciplined by removing the names from the bar associations' lists Of these, 8 cases were disciplined for removal

of names due to violations of the Law on Lawyers, the Charter of the Bar Federation and the Code of Ethics and Professional Conduct of Vietnamese Lawyers

These behaviors affect the prestige of lawyers, the Party, the State and society The Vietnam Bar Federation also requires lawyers to be more cautious when making statements, making judgments in the media about complex issues that have not been resolved by the judiciary If lawyers are found guilty, they shall be remedied, promptly and resolutely handling cases of deliberate violations of law or ethics or recidivism as provided for by the rule of law

II THE RULES OF RELATIONSHIP WITH COLLEAGUES

2.1 Study purpose

As a professional activity, lawyers have a lot of relationships with state agencies, clients and co-workers Relationship with colleagues is very important for the practicing lifetime of a lawyer This is a cooperative relationship to improve operational functions and serve them customers better

Helps lawyers understand the position and importance of Relationship with colleagues in the system of socio-professional organizations ; get awared to Viet Nam Bar Federation is a unified socio-professional organization of lawyers in Vietnam, which

is the collective house of all bar associations and member lawyers From that awareness, the lawyers are responsible for consolidating and preserving the unity in the world They’ll contribute to build up the contingent of Vietnamese lawyers and Viet Nam Bar Federation is growing stronger and better by the day that is worthy of the praise’s society together

2.2 Study significance

- Recognizing that a lawyer's ethics is a form of social consciousness, a synthesis

of rules, a system of principles and standards of lawyers Thanks to this recognizability, the lawyer readjust his behavior to be in conjunction with clients, judiciary bodies and colleagues

- Having a good grip of the rules are provided in Chapter III of Vietnam Ethical

Rules and Code of Conducts for Lawyers

- Self-realizing and applying creatively for rules of Chapter III of Vietnam Ethical Rules and Code of Conducts for Lawyers about relationship with colleagues for the practicing lifetime as well as in daily life

- Keeping good relationship with colleagues for the common cause of Vietnamese lawyers

2.3 The behavior of the lawyer in relationship with colleagues

Chapter III of Vietnam Ethical Rules and Code of Conducts for Lawyers

consists of eight rules (from Rule 15 to Rule 22) These rules define the moral obligations and behavior of lawyers with colleagues, socio-professional organizations in which the lawyer is a member, with trainee solicitors

2.3.1 Rule 15: Protect dignity and credibility of the lawyers

1 Lawyers are obliged to respect, protect dignity and credibility of laywers as well as to protect dignity and credibility of their own:

- Honor and prestige is a requirement for everyone, especially for lawyers, the protection of honor and prestige is important

- Lawyers have an obligation to protect the prestige and honor of lawyers Lawyers are obliged to promote the best traditions of lawyer's profession, to regularly

improve their professional qualifications, to preserve their professional qualities and prestige They have a cultured and reasonable behavior in practice and lifestyle to deserve the trust and respect of society for lawyers

2 Maintain internal solidarity, contributing to build up clean and firm lawyer teams who deserve social respect and trust

- The issue of internal solidarity is important for the lawyer in relationship with colleagues

- There are three factors that lead to internal solidarity in lawyers: Solidarity is seen in the lens of evaluating the effectiveness of the lawyer's work, defining the concept

of solidarity among lawyers and spread the influence of that definition, Solidarity is seen

as a way to ensure the effectiveness of the lawyer's work.(6)

2.3.2 Rule 16: Respect and cooperate with colleagues

1 Lawyers must be cooperative and respect their colleagues Criticism to colleagues must be made in a cautious, objective, due and constructive manner

- Lawyers don’t enhance themselves and pay attention to colleagues Have you ever realized that when you look at a photo with a lot of people in it, you always want to look at yourself first? Human, wherever they are highly selfish Everyone wants to be lauded, praised, and if you are a superior, of course you will be feared by subordinate, and if you are an ordinary person, you will be loved if you stop focusing on enhancing yourself and began to pay real attention to them When a lawyer knows to pay attention

to colleagues, he will receive the same attention

- There must be a proper and effective way to criticize colleagues in ensuring solidarity among lawyers

6 Lawrence Chong, 2014, "Three Factors" Against "Internal Solidarity." Taken and aggregated from:

http://www.doanhnhansaigon.vn/nhan-su/3-nhan-to-chong-lai-doan-ket-noi-bo/1081573/, visited date: 04/09 / 2017

- Maintaining a good relationship with colleagues is important to the lawyer as well as the law office Attorneys must always maintain good relationship with their counterparts, if it does not affect the interests of the client and may create goodwill in the future

- "Efforts, self-respect Self-respect will also help you put yourself into discipline When you have both, you definitely have real strength."- Clean Eastwood

2 Lawyers must be cooperative and help colleagues in professional practices as well as in life; advise in due time when colleagues misbehave to avoid adverse impact on lawyers’ credibility

- Collaborating, helping colleagues in practice and life which is the moral responsibility of a lawyer

- Timely feedback when colleagues strike a false note, affecting the reputation of professional lawyers This is important for protecting the honor and reputation of lawyers

- Discrediting other lawyers by enhancing yourself is immoral If you find that another lawyer has a negligence, you may be resolute and sympathetic If the own lawyer

is deficient, he or she will be satisfied when treating with the same way by another person

- Lawyers must be careful in criticizing or censuring others Lawyers shouldn’t have offended opinion about another lawyer Lawyers must have a friendly attitude and respect for their colleagues, a sense of cooperation and help colleagues in practice as well

as in life

3 Upon receiving a case, if it were known that the case had been in charged by another colleague, the lawyer must avoid affecting the client’s decision to choose him/her; the lawyer is obliged to request the client to provide the termination contract with the colleague before officially taking the case

- This is a rule that regulates the behaviour of a lawyer in dealing with colleagues about the same customer, demonstrating respect for the colleagues and avoiding unnecessary conflicts in a co-worker relationship

- A lawyer must be honest, forthright, goodwill to other lawyers However, the most important duty’s lawyer is the obligation to his clients

2.3.3 Rule 17: Colleagueship among lawyers

1 Colleagueship remains lawyers’ nature of morality and sentiment and the nation’s tradition, which needs expressing specifically in work as well as in events such

as weddings, parties, accidents, diseases, risks, deaths related to colleagues

- As we all know, the history of Vietnam has spent a thousand years building and defending the country This process has trained and fostered the generations of Vietnamese people who are patriotic, ready to sacrifice themselves to save the country, love guys, love neighbor, the psychological strength to endure suffering and hardship These qualities have become traditions for a thousand years The professional ethic’s lawyer is crystallized from the good tradition’s ancestors.(7) In order to contribute to a particular culture of the profession’s lawyer, each lawyer must have a proper appreciation

of the judicial culture and the cultural style’s profession To do this, lawyers must really love the profession which they have chosen Each lawyer has responsibility for developing and maintaining the bright spots of profession They must have a sense of preserving their morality and dignity, and maintaining good relationships with others and colleagues

- This rule adjusts the behaviour’s lawyers in situations where they express their colleagues’s sentiment so that attorneys can behave properly and show the ethical traditions of lawyer's profession

7 Minh Thu, 2012, "Ethical Education of the Vietnamese Nation" Taken from:

http://www.vnq.edu.vn/tap-chi/nghien-cuu-trao-doi/958-giao-duc-truyen-thong-dao-duc-cua-dan-toc- viet-nam.html, visited date: 04/09/2017

2 Lawyers are not affected by win – lose outcome in practices or other social relations which adversely affect solidarity among laywers

- Professional ethics requires an attorney not letting colleagues’s sentiment to be affected by work results or other social relationships

- A colleagues’s relationship is adjusted by Ethical Rules and Code of Conducts for Lawyers and it demonstrates the self-management of the lawyer's professional activity In the code of ethics, there are fundamental relationships such as relationship to occupational seniority, client acceptance, procedure, and what lawyers should avoid As

a legal instructor, the role of a lawyer is indispensable in the refutation's activities The power’s lawyer is the counter-argument The activity’s lawyer should ensure that his judgmentality is clearly distance so as not to interfere with sophistry That is also the foundation of lawyer's professional activity ethic

2.3.4 Rule 18 Profession Competition

Lawyers practice fair profession competition under the regulations of Lawyers Law and related laws, according to the Charter of Viet Nam Bar Federation, Ethical rules and code of conducts, through which to enhance clients’ and public trust in lawyers, contribute to promote the development of lawyer practice in Viet Nam

- Professional rivalry is the competition between lawyers, law practice institutionsthrough certain measures and methods

- When there are conflict benefits in the work, lawyers have to show goodwill of negotiation to keep the sentiment In particular, lawyer must not use unlawful tricks to harm colleagues and take advantage of their own, collude with lawyer of customers having opposite interests to theirs, brokerage customers for colleagues to get commission

- Competition is one of the basic economic rules of the market economy Ensuring free and fair competition is often considered as an important solution to ensure a healthy