| The defense lawyer’s keeping the client’s secrets is an important basis for the lawyer and the client to establish a trust relationship.Based on this trust,the client communicates frankly and fully with the defense lawyer,helping the defense lawyer to provide high—quality legal services on the basis of comprehensive knowledge of the facts of the case.The question of defending clients’ secrets by defense lawyers runs through criminal defense activities,guiding and restricting the development of defense activities.From the perspective of China’s judicial practice,defense lawyers guarding client secrets are faced with problems such as unclear scope of confidentiality subjects,unreasonable duration of subject qualifications,vague scope of confidentiality objects,unreliable exceptions for confidentiality and guidance for the realization of confidentiality.In view of this,this article takes the research method of comparative research as the main and empirical research as the supplement.From the perspective of the relationship between the defense lawyer and the client,this article starts from the basic connotation,nature and meaning of the defense lawyer’s keeping the client’s secrets.Step by step to solve the four problems of the the identification and continuity of the confidential subject,the identification of the confidential object,the exception to the confidentiality,and how to realize the confidentiality.Except for the introduction,the text is divided into five chapters,and the full text is about 160,000 words.The first chapter is an overview of defense lawyers keeping client’s secrets.This chapter mainly solves three problems: the basic connotation,nature and significance of the defense lawyer’s keeping the client’s secrets.The defense lawyer keeps the client’s secrets means that in order to facilitate the honest and full communication between the client and the defense lawyer,the defense lawyer does not disclose the circumstances and information that the client is unwilling to disclose in practice when the law permits.Keeping the client’s secrets is both an obligation and a right for the defense lawyer.In terms of the relationship between the lawyer and the client,keeping the client’s secret is the professional obligation of the defense lawyer.Correspondingly,it is the right of the client to require the defense lawyer to perform the obligation of confidentiality,and this right of the client has the attribute of a narrow right(the right to claim).As far as the relationship between the defense lawyer and the publicsecurity and judicial organs is concerned,keeping the client’s secret is also the right of the defense lawyer,with the attributes of immunity from testimony and privilege of confidentiality.The defense lawyer shall keep the the obligation of confidentiality as its standard,the exercise of the right of confidentiality shall serve the performance of the obligation of confidentiality,and the waiver of the right of confidentiality shall be formed by the exemption of the obligation of confidentiality.The defense lawyer’s keeping the client’s secret is the requirement to protect the client’s right to obtain the lawyer’s help and not to prove his crime.This is the need to improve the professional ethics of lawyers and the professional development of defense lawyers.The second chapter study on the identification and qualifications of the confidentiality subject.This involves two issues: First,the identification of the scope of the subject of the obligation of confidentiality.The defence lawyer is of course the subject of secrecy.Whether the other lawyers and staff of the law firm where the defense lawyer is located,the auxiliary staff hired by the defense lawyer,and the trainee lawyer should bear the obligation of confidentiality remains to be clarified.Outside the territory,other lawyers and staff of the law firm where the defense lawyer is working,auxiliary staff of the defense lawyer,and persons mistakenly believed to have the status of a lawyer by the client are all included in the subject category that should bear confidentiality obligations to the client.It is based on the fact that the above—mentioned personnel will inevitably be informed of the client’s situation and information learned by the defense lawyer in practice.If the above—mentioned personnel are not required to assume confidentiality obligations to the client,it will be difficult for the defense lawyer to keep the client’s secret.We should clarify the scope of the subject of confidentiality from three aspects.First,the auxiliary staff employed by the defense lawyer should assume the obligation of confidentiality to the client,and the defense lawyer should assume the obligation of prompting and supervising.Second,other lawyers and employees in the same law firm as the defense lawyer should assume the obligation of confidentiality to the client.Third,to establish a "honest and reasonable belief standard" for the client to judge the status of the defense lawyer.Under special conditions,even if the consulted party does not have the status of a lawyer,the client’s trust interests should be protected.The second is the time node and duration of the obligation of confidentiality.The time when the defense lawyer’s obligation to keep secrets is up to date must be clarified.In order to protect the client’s trust interest,the time when the "potential client" initiates the first communicationwith the defense lawyer for the purpose of seeking professional legal services is regarded as the starting point of the defense lawyer’s confidential obligation.When the factual trust relationship is established,the defense lawyer should also undertake the obligation of confidentiality to the client.The confidentiality obligation will survive forever once formed.We should regulate the timing and duration of confidentiality obligations from the following three points.First,it is clear that the confidentiality obligation of the defense lawyer is formed when the potential client initiates the first exchange with the defense lawyer for the purpose of seeking professional legal services.The second is to recognize the establishment of a factual trust relationship.If the client and the defense lawyer have in fact formed a trust relationship,the defense lawyer should assume confidentiality obligations to the client.Third,the confidentiality obligation will continue to exist once it is formed.The third chapter is the identification of confidential objects.China’s legislation regards "the situation and information that the client is unwilling to disclose" as the "client’s secret" that the defense lawyer should keep.However,this standard is too subjective,and "client secrets" can be easily arbitrarily interpreted.It is difficult to avoid the situation where defense lawyers improperly disclose the client’s situation and information or waste judicial resources.It is indeed necessary to form corresponding objective standards.The general practice in the United States is that only when it is determined that the client has reasonable expectations for the confidentiality of the information disclosed to the defense lawyer,the client has the right to refuse to disclose the information involved in the exchange.But as to how to determine this reasonable expectation,it is necessary to comprehensively examine the client’s subjective intentions and the objective environment when communicating.We should improve the rules for identifying confidential objects from the following five points.First,when the client and the defense lawyer communicate with each other in the detention center’s interview room,the information disclosed by the client to the defense lawyer should be presumed to be the "client’s secret" that the defense lawyer should keep confidential.When the objective environment and specific conditions at the time of communication change,the client needs to take necessary countermeasures to express his confidential intention.Second,When the client communicates with the defense lawyer in the presence of a third person,if the purpose of the third person’s presence is to assist the defense lawyer to provide legal services to the client,and the third party’s participation is reasonable and necessary,then the information disclosed by the person to the defense lawyer can be regarded as "client’s secret".Third,When the clientand the defense lawyer use electronic equipment to communicate,they should be cautious in determining the "client’s secret".It is recommended that the two parties do not involve information that is detrimental to the client when they communicate,and encourage both parties to take the necessary technical measures to prevent leakage.Fourth,when the client in custody communicates with the defense lawyer in a letter,the content of the letter can be regarded as a " client’s secret ",but new inspection rules should be set up,requiring the guards to treat the correspondence between the client and the defense lawyer in a special way,and the client and the defense lawyer should bear the responsibility to prove that the letter is a special letter.The last,the original of the physical evidence presented by the client to the defense lawyer or kept by the defense lawyer cannot be the "client’s secret",but the information involved in the communication between the parties regarding the physical evidence can be.If the information disclosed by the client to the defense lawyer is considered to be the "client’s secret",then the evidence obtained by the defense lawyer based on this information can also be considered as the "client’s secret" that the defense lawyer should keep confidential.The fourth chapter deals with the exception to the confidentiality.China’s legislation regards the situation and information that "the client is preparing or is committing a crime that jeopardizes national security,public safety,and seriously jeopardizes the safety of others" as an exception for defense lawyers to keep client’s secret.There are two problems.One is that the scope is too narrow.It does not consider other situations where the client uses the legal services of the defense lawyer to engage in other crimes,the client waives the right to confidentiality,the defense lawyer’s self—defense,and the client’s false plea of guilty.It also does not consider the limit of information disclosure when the exception of confidentiality is met.Countries outside the region have set up four exceptions for defense lawyers to keep their clients’ secret in order to protect different interests.One is to set up a client’s crime exception to protect a wider range of interests.Second,in order to ensure that the client waives the right of confidentiality voluntarily and save judicial resources,under certain conditions,the client can be determined to voluntarily disclose the relevant information,defense lawyers do not need to continue to keep the client secret.Third,in order to safeguard the legal rights and interests of defense lawyers,defense lawyers are provided with an exception of self—defense,and defense lawyers may disclose the secrets of their clients under certain circumstances.Fourth,in order to safeguard the interests of a fair trial,an exception is set to prove the innocence of the accused,and the defense lawyers are not restricted indisclosing information proving the innocence of the accused.In terms of the limits of information disclosure,countries outside the region have also formed a "reasonable and necessary" standard for information disclosure.We should improve the exception rules for defense lawyers to keep client’s secrets from five aspects.The first is to adhere to the basic principles of equal procedural justice and substantive justice.The second is to improve our country’s provisions on client’s criminal exceptions,including interpret the original criminal exception,increase the situation in which the client uses the help of the defense lawyer to prepare or commit other crimes.The third is to establish the exception that the client waive the right to confidentiality,but should ensure that the client discloses confidential information voluntarily.The fourth is to establish the exception rule of defense lawyer’s self—defense and the exception rule to prove the client’s innocence.The fifth is to establish the limits of information disclosure when a confidentiality exception is met,and clarify who and how much information a defense lawyer can disclose.The fifth chapter studies how to realize that the defense lawyer keeps the client’s secret.This involves two issues.One is how to ensure the realization of the defense lawyer’s right of confidentiality in the face of information disclosure needs of public security and judicial organs.US case law shows that at the pre—trial stage,lawyer—client privileges can constrain the search and seizure of law firms.At the trial stage,the client has the right to claim the lawyer—client privilege to refuse to disclose relevant information,or to claim that the relevant evidence should not be used as evidence against the client.The prosecution bears the initial proof responsibility that the client cannot claim the lawyer—client privilege.We should ensure the realization of defense lawyers’ right of confidentiality in two aspects.First,the search and seizure of law firms should be regulated,and the remedies for improperly searching and seizing documents related to "client’s secrets" held by defense lawyers should be clearly defined.Second,The procedure of defense attorney’s right of confidentiality and the remedy of infringement should be clarified.The second question is that when the defense lawyer knows that the client is giving false testimony,how can the defense lawyer take into account the real obligation while avoiding the practice risk while performing the confidentiality obligation to the client.Regarding how defense lawyers deal with client’s perjury,The American legal community has provided nine countermeasures,including full agency,avoiding perjury information,refusing to defend,refusing to defend after persuasion failed,disclosing perjury information to the court,disclosing perjury information to the courtafter persuasion failed,avoiding false confession,refusing to submit false evidence,and taking remedial measures.Facing the problem of perjury,Chinese defense lawyers can refer to the following three points: first,actively persuade the client to give up the intention of perjury,and if the dissuasion is not effective,it is not appropriate to refuse to defend;second,do not submit false evidence or elicit false testimony;third,the false evidence provided by the client shall not be used.If the defense lawyer improperly discloses perjury information that belongs to the "client’s secret",the consequences should be consistent with the defense lawyer’s breach of confidentiality obligations.It is suggested to clarify the disciplinary rules for defense lawyers and make it clear that information improperly disclosed shall not be used as evidence against the client. |
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