国际律师舞台上的中国声音（附演讲稿）

Speech_ACLA_at UIA International Bar Leaders’ Senate

October 28, 2017

Good afternoon –

My fellow colleagues, Ladies and Gentlemen, I hope you are all enjoying your day so far.

I am grateful to be here today, from China, as a representative for the All China Lawyers Association. I would like to share with you, our thoughts on the mobility rules, and the very tricky question of： when there is reported malpractice or misconduct by lawyers, which jurisdiction should be accountable for dealing with the lawyers, and what rules are applicable?

I will talk about qualifying as a lawyer in China and its existing disciplinary regime, and then look at how it impacts Hong Kong and foreign law firms operating in China.

But before I do that, what does the legal market look like in China today? China is one of the fastest growing legal markets in the world - let me share 3 facts:

Firstly, over the past 10 years, our number of lawyers has increased, annually, by 10%. That means there are around 30,000 newcomers joining us each year. As it stands, the total number of Chinese practicing lawyers has exceeded 330,000.

In early 2015, Dentons merged with Dacheng, a Beijing headquartered firm, and it became the world’s largest firm measured by the number of practicing lawyers within it – 7,700 lawyers to date.

Secondly, by the end of 2016, there are 255 foreign law firms who have established their representative offices in China. Half of them are from the US, and the rest from different countries around the world, ranging from Australia to Spain.

And finally, looking to the future, leading Chinese law firms are enthusiastically seeking opportunities in setting up their own representative offices abroad and creating their own global footprint.

So, we can see that the interaction between the Chinese legal profession and the rest of the world is becoming more and more active. Now, there is a real appetite for Chinese law firms to expand and work globally in foreign jurisdictions, as well as to continually welcome foreign law firms into China.

So, how does one qualify as a lawyer in China and what is the disciplinary regime?

Qualifying in China and its Disciplinary Regime

China is a civil law country and once you are qualified and admitted as a lawyer, you are allowed to practice in every province and city in China, except in Hong Kong, Macau and Taiwan.

Therefore, mobility is not really restricted in terms of where you can practice.

To qualify as a lawyer in China, one has to pass the State Judicial Examination.

However, to be admitted to practice law, they must complete the requirement of at least one years' legal training within a law firm.

The Ministry of Justice is the authority that issues the practicing certificate if all the conditions are met including the legal training requirement. Any lawyer admitted to practice law is also a member of All China Lawyers Association, known as the ACLA, which is the only national bar association of Mainland China.

Once admitted to the bar, the lawyers are subject to two sets of regulations to abide by. The regulatory authorities are:

• The Ministry of Justice (through its subordinate body Bureaus of Justice at provincial and city level); and

• ACLA (through its subordinate body Lawyers Associations at provincial and city level)

The discipline of the Bureaus of Justice focuses on the practicing capacity of the lawyer, the types of discipline available range from pecuniary fine, suspension of practicing for a certain period, to the severest sanction of disbarring a lawyer from practice.

While the discipline of the Lawyers Association focuses on the prestige of the lawyer in legal profession, and the penalties available include disciplinary warning, public reprimand, and the severest penalty would be disqualification of their membership from ACLA.

So, what happens if a lawyer has to be disciplined? It is the Bureau of Justice in the city where the lawyer is admitted that has the duty to discipline. The complaint can also be reported and investigated by the local Lawyers Association of the city where the lawyer is admitted. Of course, any disciplinary action by one regulatory authority will impact and affect the other, but neither regulatory authority shall replace or supersede each other.

Now, let me put this into context for you by looking at the mobility issues between Mainland China and Hong Kong, I will then talk about how mobility affects the other foreign jurisdictions.

Mobility Issue between Mainland China and Hong Kong

The relationship with Hong Kong is very special, because as a former colony of Great Britain Hong Kong is steeped in tradition and follows the common law system. Hong Kong is one of the important legal services markets in the world. Since the handover of Hong Kong back to China in 1997 and the signing of the Closer Economic Partnership Arrangement (“CEPA”) in 2003, Mainland China has consecutively introduced more than 20 measures for expanding and closely cooperating with the Hong Kong legal profession.

Three examples of key developments with Hong Kong are:

Firstly, making it easier for them to set up an office in Mainland China.

Hong Kong law firms are actively setting up their representative offices in Mainland China, where restrictions have gradually been relaxed to encourage this. There are 64 representative offices of Hong Kong law firms in Mainland China.

Secondly, establishing associations with law firms in Mainland China.

Hong Kong law firms are encouraged to set up contractual or partnership associations with the law firms of Mainland China. So far, 10 Hong Kong firms have taken advantage of this opportunity and we hope many more will do so in the future.

Since 2013, Mainland China law firms have retained Hong Kong lawyers, as legal counsel, regarding the laws of Hong Kong. Since 2014, pilots have been approved for Chinese lawyers from Mainland China to be sent to Hong Kong's representative offices in Guangdong Province, to act as legal counsel, regarding the laws of China.

And thirdly, The Ministry of Justice is trying to simplify procedures to allow permanent Hong Kong residents to qualify as practicing lawyers in Mainland China. There are dozens Hong Kong citizens who passed National Judicial Examination, and at least one was admitted to practice in Mainland China.

But, it is not just Hong Kong that Mainland China is working very closely with to build such a synergy. Similar regulations and policies have been put in place between Mainland China and Macau - which is a former colony of Portugal.

China has also taken favorable measures towards the legal profession in Taiwan and in 2010, law firms in Taiwan have been allowed to establish representative offices in Fuzhou and Xiamen, which are two cities geographically nearest to Taiwan. Taiwan residents who passed State Judicial Examination are also allowed to be admitted as practicing lawyers in Mainland China.

So, you can see that Mainland China is working very hard to cooperate with Hong Kong, Macau and Taiwan to ensure easier access for each other.

So, how are other foreign jurisdictions affected by mobility issues in Mainland China?

Mobility Issue between Mainland China and foreign lawyers

In December 2001, with a view of promoting the prosperity of the legal services market in China, the State Council of China publicised an order under which foreign law firms could establish their representative offices in China.

The Ministry of Justice immediately followed and stated the rules and regulations that all representative offices of foreign law firms needed to abide by.

As I mentioned at the beginning, we have 255 representative offices of foreign law firms in China. So, what are these foreign law firms actually allowed to do and who are they regulated by?

To put it in a simple way, foreign lawyers in representative offices are not allowed to practice Chinese law. They are allowed to provide consultations and legal services in respect of the laws of their own country's jurisdiction, to represent foreign parties to entrust Chinese lawyers, as well as to provide information on the influences to Chinese legal environment.

So, this brings me back to my first question of - when there is reported malpractice or misconduct by lawyers, which jurisdiction should be accountable for dealing with the lawyers, and what rules are applicable?

I think there is no easy or simple answer and that’s why we are here, today, to have such discussions and hear people's views.

The rules and regulations are clear cut about the boundaries of what foreign law firms can do and cannot do in China. Although there are limited exceptions, basically, the bottom line is, Chinese law firms deal with legal affairs governed by Chinese law, while the representative offices of a foreign law firm may deal with legal matters based on the laws of its own country's jurisdiction only, as they are not allowed to practice Chinese law.

The Ministry of Justice in China do have the authority to impose sanctions on representative offices of foreign law firms in Mainland China, but such sanctions are limited to the behaviors of breach of administrative rules regarding the representative offices. Examples are: if they employed Chinese practicing lawyers, if they provided legal opinion regarding a specific issue governed by Chinese law, or failed to file annual inspection documents.

The Ministry of Justice has limited authority to probe the relationship between the representative office and their client. For example, it is quite difficult for Chinese authorities to impose disciplinary sanctions on a foreign lawyer if the reported malpractice is related to a legal issue governed by the laws of their own country, it is also beyond Ministry of Justice’s reaching on whether the lawyer’s conduct is competent.

Legal authorities in China are already looking to build and encourage cooperation between the Chinese legal profession and their foreign counterparts. Just one month ago, the Ministry of Justice issued a notice about a pilot where Chinese law firms can employ foreign lawyers as their legal counsel for foreign jurisdiction laws. This will certainly change the landscape of the mobility issue in China and we will keep a close eye on how this develops.

China's global legal footprint

On that note, China will continue to progress and advance its global legal footprint by building relationships and establishing its offices in foreign jurisdictions. So far, there are 26 Chinese law firms with established offices outside of China.

And with the development of the Belt and  Road Initiative, it is foreseeable that more and more offices worldwide will see a real international Chinese presence.

That’s why we need to attach more importance to the mobility issue from the perspective of China.

How can the international legal profession communities to do to tackle this issue? Here are some suggestions:

• Firstly, International standards:

The main challenge might be the difference and diversity between the eastern and western cultures and legal traditions. This means it may be difficult to form internationally accepted universal standards of legal ethics which amounts to a one size fits all.

However, one way might be for key eastern and western legal jurisdictions to collaborate and draft model codes or guidelines which reflect the basic values and standards of legal ethics that can apply to all jurisdictions. I am sure every jurisdiction, regardless of its culture and legal traditions, can agree on certain common basic values. Once agreed, the universal standards can gradually be rolled out to be accepted or reconciliated by other jurisdictions.

• Secondly, International intelligence:

Creating a mechanism between different bars to report or complain about the professional malpractice or misconduct of any lawyer. Using advanced technology to enable us to be able to cross-share information easily through the internet, big data, and other sophisticated techs.

• And Thirdly, International collaboration:

Creating a collaborative and consistent approach between bars in the process of investigation and discipline of lawyers through cooperative efforts.

Finally, to end on an important note, we, as Bar Leaders, and member of the UIA must work together to protect and uphold the core values of the legal profession, at an international level.

I hope I have given you some thoughts to ponder on about the need for consistent, transparent, and universal standards and mechanism around mobility issues and how this should be at the forefront of all our minds.

Thank you very much for listening.

END

公众号指导单位：江苏省律师协会