Defense Lawyers Professional Secrecy System

In criminal procedure, the system of keeping professional secretsof the legal profession is complicated which affects the practice ofcounsel of defendant. Professional secret in criminal procedure is veryimportant in terms of both theory and legal practice. The relationbetween defendant and his or her counsels is quite close.If the counselof defendant reveals secret of defendant without his or her consentreliable relation between the two will be destroyed. The system ofkeeping professional secrets exist in most foreign countries exceptChina.Although there are some articles under the Law of the People'sRepublic of China on Lawyers with respect to keeping professionalsecrets of the legal profession, these regulations are very abstract andnot directly aiming at the issue of professional secrets. Therefore furtherstudy and research of the issue of keeping professional secrets isnecessary."The professional secrets'in my article mean the secrets of thedefendant, I will not talk about the secrets of country widely.This thesis consists of three parts and around 30, 000 words.The first part is the introduction of basic theory regarding the systemof keeping professional secrets of the legal profession. Above all there isthe definition of professional secrets of legal profession that is secretsobtained during their work of lawyers and relevant to legal profession,which dates back to the Roma Law times and has been recognized bymost countries in the world. Secondly, there are two theories: checkand balance theory and procedural equality theory which are thesupports of the system of keeping professional secrets of the legalprofession. The former is the basis of the privilege of counsel ofdefendant in order to keep balance of powers between prosecutors andthe accused; the latter is the aim of this system to achieve justice.Lastly,the system of keeping professional secrets of the legal profession isvalueable. It can protect the relation between the lawyer and the party.The second part will focus on a systematic introduction on the foreign system of keeping professional secret by counsel of defendant,which mainly includes the scope and contents of the professional secrets.The "scope" as mentioned above refers to the subject, period, objectof the confidentiality obligation, which are of vital importance as towhether the system of keeping professional secrets by counsel ofdefendent will implemented effectively. The "Contents" asaforementioned refers mainly to the confidentiality obligation and theconfidentiality privilege. The confidentiality obligation means thatshould the counsel of defendant violate his confidentiality obligation byexposing the professional secret, the counsel will be subject to strictpunishment by law. The Confidentiality privilege means that from theperspective of criminal procedure, the counsel of defendant mayprotest against the judicial organ by invoking the privilege. Therefore,the professional secret of counsel of defendant is a mixture of right andobligation. The missing of either part will make it incomplete.The third part will put forward the proposal for establishing the systemfor keeping professional secret of counsel of defendant in our country.Given the status quo of the legislation in China, although there aresome provisions regarding the confidentiality of professional secret inthe Law of the People's Republic of China on Lawyer and Regulationson Practice Morality and Discipline for Lawyers, problems can still befound. First of all, the implementation of those provisions isproblematic. The applicable scope of keeping professional secret bycounsel of defendant is narrow. The confidentiality period is incompleteand there are conflicts in the scope of confidentiality. Secondly, as tothe contents of the profession secrets to be kept by counsel ofdefendant, the counsel of defendant only has obligation and noprivilege, which may not well protect the defendant. In order tomaintain the good faith between counsel and the defendant, to improveour defense system and to guarantee the independent status of counsel incriminal procedure, the system of keeping professional secrets bycounsel of defendant has to be established in our country. The specific measures shall be improved, such as enlarging the scope of subject ofthe confidentiality obligation, extending the obligation period,conferring the confidentiality privilege to counsel of defendant. This isthe only way to promote the development of the legislation of ourcountry so as to fully carry out the judicial justice.