Source: Ép luật sư tố giác thân chủ: Hiếm có khó tìm trên thế giới (Quỳnh ViLuật Khoa tạp chí)

(Translated by VDD Lawyers)

If we have a look at legal systems in the world nowadays, we’ll see that the opinion of forcing lawyers to denounce their clients seems to be very unreasonable. However, there is still a few exceptions.

People who are in favor of this opinion want to legalize it and add it in Criminal Law 2015 under ‘misprision’.

Misprision used to be an offence found in Criminal Law of the English and American and it used to be a misdemeanor.

The European civil law used to have a similar one. As Ms. Nguyen Thi Thuy (Bac Kan) – a parliament delegate – said, this article of law was meant to be applied to only treason in the Middle Ages and under monarchies.

However, at present it has been removed or replaced by the other articles of law, such as conspiracy or active concealment.

What can be drawn from that is that in such countries with the rule of law, no person including lawyers has the obligation to voluntarily denounce criminals and criminally responsible for failing to do so.

Meanwhile in Vietnam, the scope of application of Art.19, Criminal Law 2015 – misprision – is very broad. It includes all of us.

Art.19:1 provides that any person who knows that a crime is being prepared to be carried out but fails to denounce it shall bear penal liability for misprision.

Art.19:2 provides that the grandfathers, grandmothers, father, mother, offspring, grandchildren, siblings and spouse of the offender only have the obligation to denounce particularly serious crimes and such crimes that are against national security.

From what is provided in Art.19:2 and Art.19:3 (which is currently a controversial issue in the National Assembly), lawyers shall have to denounce crimes against national security or particularly serious crimes of their clients if they know about it before undertaking their defending act.

That a person fails to denounce criminals is totally different from helping and concealing criminals. It is because a person knowing about criminal acts does not mean that they take part in and help committing the crime or deliberately conceal the crime.

Therefore, Art.19 unsatisfactorily imposes a redundant and out-of-date legal obligation because Criminal Law already has an article about conspiracy (Art.17) and active concealment (Art.18).

Human rights lawyer Amal Clooney (left), represented Wikileak founder, Julian Assange, during his extradition case in England in 2011. Photo courtesy of Yui Mok PA Archive/PA Images.

Prerogative relation between lawyers and clients

Opinions of other parliament delegates who oppose Ms. Nguyen Thi Thuy focus on lawyers’ code of ethics, as well as legal institutions based on the Constitution.

According to that, even when Art.19 is issued lawyers still should not be subject to its scope of application.

Other delegates Do Ngoc Thinh, Nguyen Van Chien – Chairman and Deputy Chairman of Vietnam Bar Federation, together with Ho Chi Minh City’s delegate Truong Trong Nghia emphasize that Art.19:3 will cause serious effect on lawyers’ profession and prevent them from protecting citizens’ legal rights in cases.

This viewpoint is based on two principles:

First, lawyers’ obligation to remain silent comes from the right to remain silent of the accused and the defendant. Technically the accused and the defendant are not under any obligation to declare anything about themselves. The responsibility to prove crimes belongs to the offices of investigation. The accused and the defendant need lawyers, in almost all cases by hiring lawyers, to protect their rights, not to have their information leaked by lawyers.

Second, the relationship between lawyer and client is protected by the prerogative of information confidentiality, either in criminal or civil cases. This is also a matter of lawyers’ code of ethics of lawyers stated by the Bar Federations.

Lawyers and clients need to have the prerogative of information confidentiality, as it is essential to establish absolute trust between them.

First of all, a lawyer who wants to fulfill his duty to defend must have sufficient information from the person he defends.

Especially in criminal cases, suspects hardly trust investigators to share all the information, as they are afraid there will be information that is detrimental to them. Therefore, the defense lawyer is the one whom the suspect trust the most.

So how to make a person trust and share with the lawyer all the information even if it is disadvantageous or can cause controversy?

In the legal systems in the world, particularly in Europe and the United States, information exchange between lawyers and clients is protected by the attorney-client relationship. This privilege obliges the lawyers to absolutely protect clients’ information.

The principle of absolute protection of clients’ information confidentiality is also a code of ethics for the profession of lawyer.

To ensure this principle, when a client shares information within the attorney-client relationship, the lawyer is not obliged to denounce the client and not to be criminally responsible for knowing without denouncing the crime.

In contrast, lawyers are obliged to keep absolute confidentiality of such information. If a lawyer breaks this rule, he may face a disciplinary action by Bar Federation or civil litigation by the client.

Lawyers can voluntarily denounce, not forced

In the United States, the privilege between lawyers and clients can only be broken in a few circumstances without being considered as violating of the code of professional ethics and not being dismissed by the Bar Federation or being held civil accountability.

In the first case, in accordance with Art.1.6(b)(1) of the Code of Professional Responsibility, drawn up by the American Bar Association, the lawyers can voluntarily inform the competent authority of information about the crime of the client, when lawyers know that it is very likely happen.

We can refer to an example provided by the American Bar Association.

If a lawyer knows for certain that his client – a large corporation – has an illegal waste discharge into a water source that harms people and the environment on a large scale, he can tell the authorities without being considered as violating professional ethics and breaking the principle of the client’s confidentiality.

However, if the lawyer doesn’t report to the authorities, he will not be charged with criminal responsibility for not having reported their crime. Law only prosecutes if the lawyer is an accomplice and actually involved in the offence.

For example, in the above-mentioned example, if the lawyer discusses and plans an illegal discharge with his client, then the lawyer is the accomplice and must be subject to legal sanctions.

The latter is commonly referred to as the “crime-fraud prevention exception” in Art.1.6 (b) (2) of the United States Bar Association. When a lawyer, through attorney-client relationship, learns that his client is planning a criminal offense or fraud, it can break the principle of client’s confidentiality and report this behavior to the authorities.

The principle of ” crime-fraud prevention exception” is commonly applied in cases of felony that is particularly dangerous to the lives and property of others. And it’s just an exception to the principle of general confidentiality in an attorney-client relationship.

Examples of information that a lawyer can apply this exception to inform the authorities may be information about a victim who is missing in a case, or when the client gives threatening words to the lives of others, investigators, or judges, witnesses of the case, etc.

The third case is also based on the principle of “crime-fraud prevention exception”. Lawyers in the process of representation, may by chance know the client has ever committed another criminal offence or fraud, not within the framework of the attorney-client relationship.

For example, when defending a lawsuit, the lawyer knows his client used to hire a mercenary to murder his rival and that that murder has left no clues for several years.

Similarly, if reporting to the authorities would reduce the casualties or damages to victims or their relatives, the lawyer could do so without being accused of breaking the code of professional ethics.

The liability of lawyers in the above cases, as recommended by the American Bar Association, are to advise the client to give up his intention to commit a crime, to terminate the representation contract if the client resolutely does not give up. The lawyer is strictly not allowed to give advice or to help clients carry out the crime.

In all those three cases, the lawyer’s voluntary notification to the authorities does not mean that the lawyer has the duty to denounce such a thing as in Article 19 of the Criminal Law 2015.

Ms. Doan Thi Huong, the murder suspect of North Korean President Kim Jong-un’s brother, and her Malaysian lawyer. Photo courtesy of Zing.

Exception: Lawyers may be forced to report in extreme situations

The court may also use a subpoena to ask the lawyer to provide a statement related to the client’s information. In that case, the lawyer can issue a motion to the court that the information he states may be within the scope of the attorney-client privilege. The judge of that trial will have to make a ruling whether or not the lawyer is allowed to give statements.

If allowed, the lawyer must continue to notify his client because the client has the right to seek judicial review of an appeal court. Only when all legal procedures have been used and the court has pronounced that the lawyer can break the confidentiality principle in this case, the lawyer can give testimony. (See also Article 1.6 (b)(6) of the Professional Code of the American Bar Association).

If a court order has been requested to give testimonies, but the lawyer is determined not to provide information about the client, the lawyer may face fines for contempt of court.

However, because one of the principles of the law profession is to ensure the confidentiality of the client, such cases when the court rules that the lawyer can break it to disclose information that is detrimental to the client is very rare and must have a very serious reason behind, such as when the lives of one or many people are threatened.

Normally, the judges allow lawyers to give testimony only when their content falls within the scope of the “crime-fraud prevention exception”.

In addition, when a former client and his lawyer are involved in a civil dispute related to a matter that the lawyer represented in the past, the lawyer also has the right to circumvent the confidentiality privilege. (Article 1.6(b)(4),(5) of the Professional Code of the American Bar Association).

The principle of client’s information confidentiality is not only applied in the United States.

Based on the updated report of Mr. D.A.O. Edward, QC sent to the European Union Law Commission in 2003, European countries (and even non-European Union countries) all have similar articles of law about client’s secrecy protections as in the US.

Protecting the client’s secrecy as seen by the above judicial systems is a decisive factor in the survival of the relationship between lawyer and client.

Over the past decade, Vietnamese lawyers have still been under the risk of being accused of misprision when defending their clients. (Photo courtesy of Ho Chi Minh City Law Magazine 2/2014)

Through the recent debates among the National Assembly delegates, we can see the urgency of having to define the standards and rules for the relationship between lawyers and clients in Vietnam.

Confidentiality prerogative is not just a Western legal concept, nor is it strange in Asia.

China has carried out judicial reform before Vietnam and reopened its law schools in 1978. The model of the Chinese judicial system is quite similar to that of Vietnam. However, China has done a lot of serious research on the confidentiality of information exchanged between lawyers and clients. Currently, according to a research by law professor Leah Christensen of Thomas Jefferson Law School in 2011, China has begun to propose legislation to protect the confidentiality of such information.

Without confidentiality privileges between lawyers and clients, they cannot build the trust needed to make the best defense possible. If the people cannot enjoy the right to be defended to the best possible, the wrongful sentences will continue to happen.

This is another inadequacy in paragraph 3 of Article 19 of Criminal Law 2015, which is why this has to be modified, or better yet, to be removed.