Reflections on lawyers’ professional risks

1. Lawyers’ risks in criminal liability. In the process of participating in criminal proceedings, a lawyer violates Article 306 of the Criminal Law, which constitutes the crime of destroying evidence, forging evidence, and obstructing testimony by the defender or agent ad litem; violating Article 310 of the Criminal Law, constituting the crime of harboring; violating the Criminal Law Article 398 stipulates that it constitutes the crime of leaking state secrets. Every year, approximately hundreds of lawyers across the country have their personal freedom restricted by relevant authorities for various reasons. According to statistics, since 1996, more than 300 lawyers across the country have been "brought to justice" by judicial authorities for various reasons for criminal defense. For example: Sun Shaobo, director of Harbin Taiping Law Firm, who did not have the status of a state employee at all, was sentenced to 11 years in prison for corruption; the lawyer was obviously not the subject of the crime of dereliction of duty, but lawyer Peng Jie of Nanfang Law Firm in Hengyang City, Hunan Province was accused of The person managed to escape premeditatedly, and the court sentenced Lawyer Peng to three years in prison for "dereliction of duty." Zhang Jianzhong, director of the Beijing *** and Law Firm, who had served as the defender of Chen Xitong and Li Jizhou, was sentenced in the first instance to the crime of helping to fabricate evidence. Sentenced to 2 years in prison; Li Kuisheng, the author of the book "The Encyclopedia of Torture in the World", known as the "Legal Weird" and the "No. 1 Lawyer in the Central Plains", Director of Henan Qingtian Law Firm, even though he produced a large amount of money in court He used blood scabs to prove that he had been tortured to extract a confession, but he was still sentenced to 12 years in prison and fined 10,000 yuan by the court; on July 10, 2006, two lawyers, Kong Weidong and Zhan Jun was prosecuted by the prosecutor's office for the crime of serious misrepresentation in the issuance of certification documents, etc. There are countless such cases. At present, the national criminal defense rate is gradually declining, and more than 70% of the criminal cases concluded by courts across the country have no defenders.

2. Lawyers’ risks in civil compensation. Article 49 of the Lawyers Law stipulates that if a lawyer practices illegally or causes losses to a client due to his fault, his law firm shall bear the liability for compensation. After the law firm makes compensation, it may recover compensation from the lawyer who committed intentional or gross negligence. Lawyers and law firms may not exempt or limit the civil liability for losses caused to clients due to illegal practice or fault; Articles 66 and 67 of the "General Principles of the Civil Law" stipulate that if an agent acts in violation of the law or exceeds his authority, the agent will be harmed. jointly and severally liable for the interests of others. In the process of engaging in litigation and non-litigation business, lawyers cause the interests of the parties to be harmed or the requirements of the parties not to be met due to many reasons such as their own fault or the complexity of the case itself. The main manifestations are: (1) Dereliction of duty caused by Compensation for the parties’ losses. (2) Misunderstanding of legal issues leads to errors. (3) Low degree of specialization creates risks. Such as leaking trade secrets, losing important evidence, improper litigation claims, wrong evidence, acting beyond the authority, delaying the litigation deadline, deviations in the judgment of the nature of the case (cause of action), improper or wrong legal advice provided to the enterprise, etc., the parties may use this to The lawyer is required to refund the attorney fees and compensate for losses. For example, a lawyer in Shenzhen was sentenced by the court because the defendant "Shenzhen Branch" failed to repay the project money as "Shenzhen Industrial Company" owed the project money, causing the statute of limitations to expire and the debt of more than 1 million yuan could not be recovered. Ordered to compensate for losses of more than 1 million yuan and refund attorney fees. It can be said that lawyers’ compensation risks in civil matters are the most complex and difficult to predict.

3. Lawyers’ risks in industry management. Article 49 of the "Lawyers Law" stipulates that if a lawyer intentionally commits a crime and is held criminally responsible, his lawyer's practicing certificate shall be revoked and cannot be restored for life; if a lawyer has the circumstances specified in Articles 47-49 of the "Lawyers Law", the lawyer's certificate shall be determined by provinces, autonomous regions, municipalities directly under the Central Government and districts. The judicial administrative department of the Municipal People's Government shall give a warning, and if the circumstances are serious, a penalty of suspension of practice for not less than three months but not more than one year shall be imposed; if there are any illegal gains, the illegal gains shall be confiscated.

4. Risks to lawyers’ personal safety. Physical conflicts may occur between lawyers and less qualified parties or the other party.

Ma Haiwang, director of a law firm in Linfen City, Shanxi Province, was acting as a litigation agent in a divorce case. Bai Yuren, the other party, plowed Ma Haiwang's eyes with his hands. Blood spurted out of Ma Haiwang's eyes and his right eyeball protruded. When lawyer Ren Shangfei of the Jize County Law Firm in Hebei Province went to Hunan to handle an economic dispute case, he was kidnapped and held hostage by Jiang Xiaoming, the director of the fireworks factory in Lianhe Village, Wangfang Township, Liling City, Hunan Province. He was subjected to inhuman torture for as long as It took 120 days to be rescued. Before Saddam was hanged, his lawyer reimbursed three.

3. Prevention of Lawyers’ Practice Risks

(1) Lawyers’ avoidance of personal risks in criminal cases.

1. Regarding the crimes of destroying evidence, fabricating evidence, and obstructing testimony by defenders and agents ad litem as stipulated in Article 306 of the Criminal Law, the following methods can be used to temporarily avoid the risks brought by them. (1) No evidence is obtained. The so-called failure to obtain evidence here does not refer to a serious and irresponsible failure to obtain evidence that violates the "Lawyers' Professional Ethics and Professional Discipline Standards", but refers to practicing lawyers using other means and methods prescribed by law to obtain evidence in the process of handling criminal cases. The act of not directly investigating and collecting evidence. Lawyers can provide evidence clues to the investigative agency in the form of "supplementary investigation suggestions", or apply to the people's court to obtain evidence or apply for witnesses to appear in court. (2) Notarization and evidence collection. That is, the notary will be present to supervise the evidence collection and certify the authenticity and legality of the evidence collection act. Although this is time-consuming and labor-intensive, it not only enhances the effectiveness of evidence but also avoids practice risks. It is a desirable method at this stage. (3) Irrelevant evidence will not be cited. The evidence submitted by the lawyer must first be beneficial to the criminal suspect or defendant; secondly, it must also ensure that the evidence submitted has an impact on the conviction and sentencing of the criminal suspect or defendant. Therefore, evidence such as the testimony of interested parties and the defendant’s confession without other evidence does not need to be presented in court. (4) Avoid direct contact with witnesses. Article 306 of my country's Criminal Law and Article 38 of the Criminal Procedure Law both stipulate: "Lawyers shall not induce witnesses to change their testimony contrary to the facts or commit perjury." However, in judicial practice, there is no clear measurement of what "inducement" is. Standards are often expanded and applied by judicial authorities, which brings huge risks and hidden dangers to lawyers' practice activities. Lawyers should try to avoid direct contact with witnesses in non-trial settings.

2. The crime of harboring stipulated in Article 310 of the "Criminal Law" can be solved by the following methods: (1) Reporting the crime suspect or defendant can only be done to the public security organs, the People's Procuratorate and the People's Court Confess and defend against the charges, and do not state other facts unrelated to the alleged crime. Fundamentally cut off the possibility of lawyers knowing about other crimes committed by criminal suspects and defendants, in order to achieve the purpose of avoiding practice risks. (2) Inform them that they can surrender to the judicial authorities if they commit other crimes that are not known to the judicial authorities, and inform them of the legal consequences of surrendering. (3) For some special cases, such as criminal suspects or defendants who may continue to commit crimes, once lawyers are aware of it, they should promptly coordinate and deal with it through the Bar Association and other relevant departments without violating lawyers' professional ethics.

3. The crime of leaking state secrets stipulated in Article 398 of the "Criminal Law" is also a crime that cannot be ignored. In 2001, when Yu Pingyin, a lawyer at Lutong Law Firm in Jiaozuo City, Henan Province, was handling a suspected corruption case, he arranged for an assistant lawyer Lu to give the copied case file to the defendant's relatives for review. As a result, the witness involved in the case Zhang A certain group of people issued false certificates and were prosecuted by the People's Procuratorate of Qinyang City, Henan Province for the crime of intentionally leaking state secrets. They became the first lawyer in my country to be held criminally responsible for the crime of leaking state secrets. Since the confidentiality level of lawyers' files has not been clearly defined in current laws and administrative regulations, the Intermediate People's Court of Jiaozuo City, Henan Province determined in the second-instance judgment that the defendant was not guilty of leaking state secrets. But we have to pay attention to the fact that some materials in some case files are indeed classified as confidential. If the lawyers handling these cases leak this part of the materials, it will inevitably constitute a violation of Article 398 of the Criminal Law. The crime of leaking state secrets.

Therefore, in the course of handling criminal business, if a lawyer requests a client or other person to inspect or copy file materials, he or she should reject the request in accordance with Article 25 of the "Lawyers' Professional Ethics and Practice Discipline Standards" and fully inform them of the request. The nature and legal consequences of the conduct.

(2) Lawyers’ risk avoidance in civil and commercial business.

1. Case acceptance and review. Before accepting business, lawyers and law firms should evaluate and judge the possibility of risks arising from the business to be accepted, the possible risks and basic risk avoidance measures, and assign those risks that are prone to risks and risk avoidance measures. Cases where the measures are difficult to implement are excluded. When filing a case, it should be reviewed whether the identity of the parties is true, whether the names are accurate, whether the cause of the case (legal relationship) is standardized, whether the signatures of the parties in the entrustment contract are written with black gel pen or black ink, whether there is any conflict of interest in the practice, and whether there is a conflict of interest in the agency contract. Whether the filled-in designated lawyer, cause of action, parties, and authority of entrustment are consistent with the power of attorney and official letter. It is absolutely prohibited to hand over stamped blank agency contracts, entrustment agreements, consulting contracts, etc. to the client or other personnel.

2. Fully inform the risks. In judicial practice, many disputes between lawyers and clients arise due to the failure to fully and timely inform clients of the nature and legal consequences of the entrusted business during the process of accepting cases and handling business, or the client has been informed but there is no relevant evidence to prove it. of. In view of this situation, lawyers must fully, promptly and in writing inform their clients of the nature and legal consequences of the relevant matters in the process of handling business, and ask the clients to sign the "Risk Notification Form".

3. Avoid recording. Avoid inappropriate remarks being recorded.

4. Review of litigation documents: whether the identities of the parties listed in the litigation documents are true, whether the names are accurate, whether there are any missing parties, whether the cause of action (legal relationship) is accurate, whether the litigation claims are comprehensive and correct, and whether the parties involved are Whether the citation of legal provisions is accurate, whether they are current and effective provisions, whether the litigation documents are signed by the parties, and whether they are written in black gel pen or black ink.

5. Try not to accept original evidence or legal documents from customers. If a lawyer loses client evidence or legal documents in the process of handling civil or commercial business, it is not only a serious violation of the "Lawyers' Professional Ethics and Practice Discipline Standards", but also a major inducement for clients to suffer significant economic losses, and a risk to the lawyer's practice. One of the main reasons. As long as the lawyer adheres to the principle that all original evidence and legal documents are kept by the client when handling business, the practice risks caused by the loss of evidence or legal documents can be completely avoided.

6. Collective analysis and discussion. For issues that are difficult to grasp or have different views on handling, lawyers should use collective wisdom to brainstorm, analyze and discuss, and propose solutions to possible risks. This operation can not only avoid the risk of compensation caused by lawyers due to their own professional limitations to a large extent, but also provide the law firm with ideas and measures to calmly face disputes in the future. preparation.

7. When disposing of the client’s substantive or important procedural rights, even if there is special authorization from the parties, it should be carried out personally by the client as much as possible, such as adding, changing, and filing claims, signing mediation and settlement agreements, and withdrawing lawsuits. wait.

8. Try not to collect legal documents on your behalf. Try not to sign and collect legal documents such as pleadings, judgments, and mediation documents on behalf of the parties. If it is necessary to sign and collect them on behalf of the parties, the parties should sign for them when they are handed over and attach them to the files for archiving.

9. Strictly review the testimony of lawyers and the issuance of conclusive legal opinions. Article 189 of the Securities Law stipulates that "social intermediaries shall be held responsible if there are any falsehoods, misleading or major omissions in the documents issued by them." Therefore, controlling the issuance of such conclusive legal opinions and conducting reviews within the law firm has become an important means to avoid risks. The advantage of doing so is that it not only effectively controls risks in the bud, but also demonstrates the law firm’s absolutely responsible attitude towards its clients.

10. Strengthen file management. The most important basis for determining that a lawyer has met the requirements of diligence and responsibility is the files of the business handled.

Lawyers' professional risks mostly arise after the case is settled. How to judge whether there are faults in the lawyer's work and the extent to which he should bear the liability for faults, files are the most important basis. Therefore, in order to avoid risks, it is necessary to strengthen the management and production level of lawyer business files and keep them for a longer period.

(3) Lawyers’ risk avoidance in industry management and industry self-regulation. Regular return visits are conducted to strengthen internal handling and reduce complaints. It is very necessary to establish a system of regular return visits to clients, contact them in a timely manner, understand their opinions, and actively coordinate conflicts between clients and handling lawyers. Once the client raises an objection, the attorney will first put out the fire and, if necessary, assume certain no-fault liability. If the handling lawyer is indeed unable to handle the matter, he should report it in time, and the law firm will first deal with it effectively, striving to minimize the possibility of complaints.

(4) Lawyers’ risk avoidance in terms of personal safety.

1. If you are not a specialized criminal defense lawyer, or if you know little about criminal defense, try to co-handle criminal cases with an experienced lawyer. 2. When a male lawyer represents a woman to divorce the man, he should try to keep a distance from the female client and pay attention to his wording in court. 3. In court, if the mistakes of prosecutors and judges have no impact on the outcome of the case, lawyers should not make a fuss about the mistakes of prosecutors and judges. 4. Lawyers must leave the public prosecutor’s office before 11 a.m. or 5 p.m. if it is not for court proceedings or important matters. Otherwise, it will be very disappointing if you leave while others are waiting for their meals. 5. When inviting guests to dinner, never select your own candidates. Just let the person you want to invite call the guests. Otherwise, putting a group of people who are fighting openly and secretly at the same table will cause internal struggles and bring disaster to the whole family. 6. When interacting with people from the public security bureau, procuratorate, and law, the lower the position, the more respect you must have. The king of hell is easy to deal with, but the devil is difficult to deal with. 7. It is best to have two colleagues with you when traveling for a long distance, so that they can take care of each other and try to stay away from illegal activities. 8. You must be cautious when dealing with people in the world and try to keep your distance.