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

VIETNAM NATIONAL UNIVERSITYOF HO CHI MINH CITY UNIVERSITY OF ECONOMICS AND LAW FACULTY OF LAW ====●O۝Ο●==== LEGAL ETHICS Topic 5: DUTIES OF LAWYER TO THE COURT AND OTHER PUBLIC AGENCIES

VIETNAM NATIONAL UNIVERSITY

OF HO CHI MINH CITY UNIVERSITY OF ECONOMICS AND LAW

FACULTY OF LAW

====●O۝Ο●====

LEGAL ETHICS

Topic 5: DUTIES OF LAWYER TO THE COURT AND

OTHER PUBLIC AGENCIES;

RELATIONSHIP WITH OTHER LAWYERS

Ho Chi Minh City, October 22, 2017

1

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 St udy purpose, significance 5

1.2 C odes adjustment 5

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

1.4 N ature 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 Th e behavior of the lawyer in relationship with other state bodies 12

1.8 Pra ctice 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

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

3

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

Deeply experienced, flexibility and clever application of the rules will help to raisethe lawyer’s sense of self-awareness to execute obligation ethics and professionalbehaviors and communication; to limit errors, misconceptions and violations, to improvethe efficiency of work, to contribute to the social function of lawyer, to establish strongposition and effective voice in the cause of state’s jurisdiction, respect and protection ofhuman rights in the judiciary, gain respect from judiciary bodies, other state agencies andcolleagues

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 andjudiciary bodies has established a regular and close To specific the principles in thisrelationship requirement in legal awareness

Understanding the principles, lawyer will pay attention, build, establishrelationships 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 casesbut also the preserver of legal rights for the litigant or the representative for the litigant incivil, administrative, economic, labor,…

Lawyer not only participates in legal action but also participates in arbitrationlawsuit 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 inlegal 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 essentialexculpate function - is considered to be an indispensable condition for ensuring theprinciple 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 practicalequality 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, especiallyunderserved regions, economic zones, rural areas, mountainous areas, islands,… To acertain extent, the judiciary bodies, other state bodies and society perception on theposition, 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, onlyinterests in customer’s benefits at all costs, resulting in poor awareness, behaviors andactions to the judiciary bodies and other state bodies, born the idea of “your right, myright”, lead to the risk of law violation, ethics and behaviors in practice

Therefore, the correct concept of opponency relationship between criminalprocedure functions, identify essence of relationship between lawyer and the judiciarybodies and other state bodies is important in each lawyer’s practice in profession Whenperforming their social function, lawyer also contributes to build socialist state lawprocess, guarantee of human rights, the bridge to transmit, bring law into society, healthysociety 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 thelawsuit, participate in interrogation sessions, work between investigators, procurators andjudges with the defendant; carry out some activities, operations, skills, exercise the rightsand obligations, what should be done and what should not of the defense counsel incriminal lawsuit… Lawyer must know how to apply, being flexible, proper wheninvolved 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, isclient’s attitudes behaviors) to the litigants position, the role of lawyer in the litigation

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 ahealthy, standard way, without engaging, mediating and interconnecting judiciary bodiesand officials into illegal act, or deliberately misleading the acquaintance to influence theclient’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 lawyeradvises or provides some legal vevices to customer The scope of this relationship is oftenmore 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 preparingposture, attitude, action and behavior to state bodies or the person being responsible forsolving the work, demand of customer

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

On the other hand, this relationship also have many conflict because the lawyercan't respond demand of customers, they will be angry and complain, report to risesuddenly 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

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 isclearly 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, stillremain 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 ofwhat 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 theoffice of the judiciary bodies, in the office hours, related mainly to the exchange ofgrounds for conviction and evidence, provided collected document by lawyers, verified

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

20th July 2011 of national lawyer council)

involved persons; not speculate subjectively to convict other person or have words toharm the client; not postpone or delay the judiciary proceedings by unreasonable orimmoral manner In fact, some lawyer’s point of view always covers subjectivity, theissue that needs to be differentiated is avoiding unilateral and subjective aware cause thatwords, actions and documents sent judiciary bodies have the words and sentences whichare provoking, shooting, accusing others This often happens in practice, either becausethe 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 otherhand, practical participation in the proceedings in the criminal case shows that point ofview, lawful evidence and legal basis that are important to resolve the case objectivelyand legally are not surely considered by the trial panels In the dabate, Lawyers need tohave a cultural and standardized atitude, both presit in protecting legitimate, justifiablepoint of view and arguments and adjust in a timely manner, record grounded view ofprocurator and Lawyers protecting people who have conflicting interests with theircustomer, 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 asduring the judiciary proceedings

1.6 Laywers are forbidden form the following in relationship with judiciary

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 tojudiciary 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 Theconcept of “illegal” in this case include that the lawyers know clearly about requestdelayed, prolonged solving the case without legal basis, but carry out or incite clientscarry out to delay or cause difficulties to judiciary bodies

- Criticize or offend persons in the judiciary proceedings;

68/QD-HDLSTQ 20th July 2011 of national lawyer council)

11

- Abuse the role involved in the judiciary proceedings to comment and harm

national, social benefits, national, religious solidarity or propagandize illegal or immoralpoints of views Lawyers must be aware of a lawyer’s social fuction, lawyers must nottake advantages as a participant in the proceedings at the court according to regulations ofthe 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 Thosemust-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 qualitiesand job skills, along with practical experience are the things that will help every lawyerself-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

23 and Rule 24;

20th July 2011 of national lawyer council)

12

- In relation with other state bodies, in order to carry out tasks, lawyers must be

polite, respect and resolutely refuse fraud activities, immoral acitivities The reality of the

20th July 2011 of national lawyer council)

12

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

of including the requirements of customer which exceed normal administrative procedurestandards (for example, from unresolved appeal, being incited by others, inducing largenumbers of people to gather or demonstrate with banners or slogans which oppose, distortstate’s policies, laws etc) That’s the reason why in such cases, lawyers are responsible forexplaining to clients about legal regulations on complaint lodging, accusation to adviseclient not to lodge illegal complaints or accusation that waste time and resource of theState, 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 oraccusation 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 tocustomer

1.8 Practice:

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

Although the law has specific provisions on the code of conduct of lawyers withstate 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, ofwhich 17 were withdrawn according to their wishes and 12 were disciplined by removingthe names from the bar associations' lists Of these, 8 cases were disciplined for removal

13

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 TheVietnam Bar Federation also requires lawyers to be more cautious when makingstatements, making judgments in the media about complex issues that have not beenresolved by the judiciary If lawyers are found guilty, they shall be remedied, promptlyand resolutely handling cases of deliberate violations of law or ethics or recidivism asprovided 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 practicinglifetime of a lawyer This is a cooperative relationship to improve operational functionsand serve them customers better

Helps lawyers understand the position and importance of Relationship withcolleagues in the system of socio-professional organizations ; get awared to Viet Nam BarFederation is a unified socio-professional organization of lawyers in Vietnam, which isthe collective house of all bar associations and member lawyers From that awareness, thelawyers are responsible for consolidating and preserving the unity in the world They’llcontribute 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 andcolleagues

- 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 thepracticing 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 obligationsand behavior of lawyers with colleagues, socio-professional organizations in which thelawyer 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 andprestige They have a cultured and reasonable behavior in practice and lifestyle to deservethe 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 tolook at yourself first? Human, wherever they are highly selfish Everyone wants to belauded, 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 enhancingyourself 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

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 theircounterparts, if it does not affect the interests of the client and may create goodwill in thefuture

- "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 oflawyers

- 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 anotherperson

- Lawyers must be careful in criticizing or censuring others Lawyers shouldn’t

have offended opinion about another lawyer Lawyers must have a friendly attitude andrespect 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 avoidingunnecessary 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 ofVietnamese 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’slawyer is crystallized from the good tradition’s ancestors.(7) In order to contribute to aparticular 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 reallylove the profession which they have chosen Each lawyer has responsibility fordeveloping and maintaining the bright spots of profession They must have a sense ofpreserving their morality and dignity, and maintaining good relationships with others andcolleagues

- 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 ethicaltraditions of lawyer's profession

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