Study On Attorney's Rights

This paper is focused on the study of lawyers'right form the prospective of legal profession. It is framed out with the principle of from the general to specific and from the abstract to the concrete. The author reviews the connotation of the lawyer and the legal profession, followed by defining and analyzing the justifiability and major characteristics of the lawyer's rights. On the basis of system of the lawyers'rights framed out, the author makes suggestions on how to make improvement in the legislation on the lawyer's right in China as well as to make remedies for it after making a deep study on the specific rights for lawyers and tackling into the current problems existing in China. The author stresses that there are two objectives for him to do this paper: A. by reviewing the lawyer and legal profession from right-oriented prospective, to change people's views in assessing how a lawyer performs of which a well accepted criterion of good and bad act is generally applied. The author argues that the lawyer should be liberated from overwhelming social and moral responsibilities which are laid on them as they are none the less"the Saint or the Evil', they are just legal professionals who assume obligations and also enjoy rights; B. to look into those basic theoretic issues in respect to lawyer'rights so as to establish a comprehensive and complete regime for the lawyer's rights for the purpose of provisions of theoretical jurisprudence in the legislation for attorney's rights.The thesis consists of 8 chapters. Chapter one is an introduction, and Chapter 2 to Chapter are the main body. The last Chapter is the conclusion.Charter 1 is about why the author selects this topic to make study, what reference materials and books including those from foreign countries and the way how he works out it, particularly the creations and innovations covered in the thesis.Chapter 2 is rethinking about lawyer and the legal profession. In this Chapter, the author defines the legal profession as"A lawyer refers to a certified legal practitioner under the law who is authorized or designed to provide legal services with the clients, and assumes obligations and enjoys rights in the legal relationship involved in". What the author highlights is that he incorporates the elements of right into the definition of lawyer in this part. According to the author, the legal profession is characteristics of independent, legal, customer-oriented, professional and self-disciplined, of which independence is the basic feature. An independent lawyer shall be conferred on sufficient rights to enjoy where the operation of regime has been established.Chapter 3 is on the study of basic theories of lawyers'right. Starting by analyzing the concept of the rights for lawyers, the author defines the scope of the lawyer's right within this concept. Then he discusses about the justifiability, the characteristics and function of lawyer's right which are all very important theoretic issues. As the rights which a lawyer enjoys are collective, any existing methods of which rights are classified are not applicable to set up a system of rights of a lawyer. Therefore, on the basis of existing research results, by referring to typology method, the author sets up the system of rights of a lawyer, namely from"practicing rights to non-practicing rights". Chapter 2 and 3 generally focuses on basic theories of lawyer's rights, thus they could be regarded as the general provisions of the thesis.Chapter 4 is concerned about the specific rights that a lawyer shall enjoy when practicing law in different activities, e.g. right to business development, right to refuse to representation, right to remuneration, right to keep trade secrets, right to immunity of occupation etc.Chapter 5 deals with practicing rights which a lawyer exclusively has exclusively under certain circumstances other than any other circumstances while practicing law. This chapter particularly focuses on study of the rights that an attorney has in criminal proceedings since it is typical of occupational rights and problems occurred to advocacy of criminal actions. With the development and increase of non-litigations cases across the world, so the author also discusses in detail the rights the lawyer has in this field. The author holds that an attorney should be granted two important rights: a. right to investigate; b. right to provide legal advice independently in non- contentious cases. What chapter 4 and 5 discuss are contents regarding rights for lawyers while practicing. The author mainly discusses those rights in question and easily ignored by people and only gives brief introduction for rights which have been well understood and accepted. Chapter 6 talks about the rights that a lawyer while not practicing as lawyer.Academics mostly views lawyer's rights are right that a lawyer has while practicing in their works, but seldom deal with the rights for a lawyer while not practicing. According to the author that these rights refer to those enjoyed by a lawyer under the management of legal association. As the model for management system for lawyer in China now is the combination of"management of trades"and"administrative management", a lawyer thus shall has the rights conferred under the management of trade and administrative management, such as right to elect , right to be elected, right to criticize and make suggestions , right to acquire welfare and right of appeal, right of reporting and accusation, right to be guaranteed to practice law and right to receive administrative remedies etc. These are very important and basic rights for a lawyer to act as a professional and make further career development, which constitute complete rights conferred on a lawyer with those occurred while practicing law for a lawyer.Chapter 7 is on proposals and recommendations of legislation and safeguards and remedies in respect of lawyers'rights in China. The chapter describes the current situations on the top of the existing problems which is concluded as"ten difficulties", and then suggestions are given how to make improvements in terms of rights conferred on a lawyer. With the time going and fast development of rule of law, changes are taking place in this field. However, rights conferred on a lawyer in China are not complete with the problems of lack of measures of excising the rights and abuse of right in existence. In order to solve these problems, rights for a lawyer should be extended and perfected and restrained from unreasonably limitations. It is required that system of management of trades, insurance for lawyer, tax administration be set up to help a lawyer realize his rights in title. Moreover, it is necessary to provide the lawyer personal security while practicing. Whereas there are breaches of the rights a lawyer enjoys, relevant remedies should be placed and received. As for substantial rights that a lawyer has, he/she can secure remedies the way which other substantial rights are enforced. However, for procedural rights, as violated, the procedure shall be reversed due to non-justifiability of it with fixing liability for the broacher so as to effectively enforce remedies with regards to the rights a lawyer has.A conclusion is attached to the thesis, which sums up the major points and also addresses the shortcomings thereof.