A Study On The Defense Conflict Between A Defendant And His Attorney In China

Defense conflicts between a defendant and his attorney has being in dispute for along time since the Li zhuang case. The argument regarding defense conflicts focuses onunder what circumstances and to what extent might the attorney express his opinions asopposed to the defendant. Lawyers in the defense practice in our country consider thatdefense conflicts are reasonable. They support that the defense attorney ought to preservehis independence when his defense opinions are contrary to the defendant. However, somescholars argue that it’s absurd that attorneys express their defense opinions ignoring thedefendants’ opposition.This paper believes that defense conflicts can be classified as defense conflicts onpositions and defense conflicts on strategies. There are no definite provisions onregulating defense conflicts in China. There are no legal provisions forbidding attorneysexpressing opinions which are contrary to the defendant. During the trial, the accused hasthe right to terminate an attorney’s action in his defense and entrust another to take it up.However, an attorney cannot refuse to speak in defense of the accused easily. Besides,the so called “independent attorney defense” does not justify defense conflicts. Ifattorneys stress their independence in the defense practice, the privacy of the accusedmay be infringed and the subjectivity of the accused in procedure may be damaged. So itis vitally necessary to review the so called “independent attorney defense”.Relevant experience in foreign countries may provide useful help to our country.There are two major modes to solve defense conflict, one is the “client-centered” mode,and the other is the “independent attorney defense” mode. The former mode stresses theloyalty of the attorney to his client, while the latter stresses the attorney’s duty to servepublic interest and to promote the correct implementation of the law. In defense practice,we should respect the will of the accused, so a “client-centered” defense conceptionshould be stressed in our country. Therefore, The autonomy of the accused will bestrengthened and the efficiency of defense will be promoted.