Your China Lawyer’s Primary Allegiance is Not to You
Imagine a scenario where a company involved in a business dispute in China, finds their case entangled in political complexities. This isn’t just a hypothetical situation. A few years ago, a prominent European client of ours faced a legal battle [yes, I am being intentionally vague here]. Their Chinese lawyer, highly competent and seemingly trustworthy, unexpectedly withdrew from the case citing “conflicting interests.” We later came to believe this withdrawal was a direct consequence of Order Number 134 from the Ministry of Justice of the People’s Republic of China, which profoundly limits the independence of legal practitioners in China. This order, in effect since November 1, 2016, underscores a unique allegiance that Chinese lawyers must pledge, which can significantly influence their client representation, especially of foreign companies.
Chinese Lawyer Fealty to the Party Comes First
Order Number 134 of the Ministry of Justice of the People’s Republic of China, which in came into effect on November 1, 2016, mandates that “supporting the leadership of the Communist Party of China and supporting the socialist rule of law . . . [are] the basic requirements for practicing law.”
The following is the oath required of all China licensed lawyers:
I swear to faithfully fulfill the sacred mission of legal workers in socialism with Chinese characteristics. I swear my loyalty to the Motherland, to the people, to uphold the leadership of the Communist Party of China and the socialist system, and to protect the dignity of the Constitution and the laws. I swear to practice law for the people, keep industrious, professional honest and corruption free, safeguard the lawful rights and interests of clients, maintain the right implementation of the law, uphold social fairness and justice, diligently strive for the cause of socialism with Chinese characteristics.
A lawyer who refuses this oath will be denied a license to practice law.
Your Chinese licensed lawyer has taken this oath.
The above order and oath make clear that Chinese licensed lawyers are not fully independent, and their expressed loyalty is first and foremost to the Chinese Communist Party, not to their clients. This makes a Chinese lawyer’s “ethical standards” vastly different from that of Western lawyers, especially on a legal matter that involves the Chinese Communist Party of the Chinese government.
Conclusion
Order Number 134 and the mandated oath for Chinese lawyers are more than just legal formalities; they represent a fundamental divergence in the concept of legal practice compared to Western standards. For Chinese lawyers, their loyalty is pledged first to the Communist Party and the socialist system, with client interests secondary, especially in cases involving the Chinse government or the Communist Party. This reality poses unique challenges for Western companies operating in China.
For how to best deal with choosing and using a Chinese lawyer, see How to Safeguard Against Unscrupulous Chinese Lawyer Behavior: A Guide for Foreign Companies. This lack of lawyer-client loyalty is one of many reasons why so many Western companies do not use Chinese licensed lawyers unless absolutely necessary.
