By Richard Healy, Partner.
You may have read recently that the People's Republic of China ("PRC") Ministry of Justice has recently issued a directive requiring lawyers in mainland China to take an oath of loyalty to the Communist Party. Accordingly, all newly admitted lawyers, or lawyers renewing their practicing licences are required to swear an oath of loyalty which includes the following wording:
"I promise to faithfully fulfill the sacred mission of socialism with Chinese characteristics….. be loyal to the motherland its people and to uphold the leadership of the Communist Party of China."
The justification for requiring this oath is that it is supposed to increase the integrity of Chinese lawyers. Whilst that aim seems doubtful, this requirement has drawn criticism from many quarters within China suggesting that it will hinder the development of the Chinese legal system and damage the rule of law in the PRC.
This situation should, however, be contrasted to situation in Hong Kong, which has the status of a Special Administrative Region within the PRC and applies principles of "one country two systems". The Hong Kong rules of professional conduct do not require the taking of any such oath and indeed the fundamental principles of professional practice emphasize the duty to the client as set out in Rule 2 of the Solicitors' Practice Rules:-
"A solicitor shall not, in the course of practicing as a solicitor, do or permit to be done on his behalf anything which compromises or impairs or is likely to compromise or impair-
(a) his independence or integrity;
(b) the freedom of any person to instruct a solicitor of his choice;
(c) his duty to act in the best interest of his client;
(d) his own reputation or the reputation of the profession;
(e) a proper standard of work; or
(f) his duty to the court."
It should also be noted that common law principles that still apply in Hong Kong, including the principle of confidentiality between lawyer and client and legal professional privilege. The directive by the Chinese Ministry of Justice requiring lawyers to swear an oath of loyalty to the Chinese Communist Party perhaps does no more than reiterate what many overseas have long suspected, that mainland Chinese lawyers first and foremost obligation is to the State and the Chinese Communist Party. For this reason many overseas clients prefer to take advice as to their overall strategy and structuring of China operations from Hong Kong lawyers where they know they will receive independent advice based solely upon the client's best interests.
OLN can assist you with PRC matters
OLN is happy to assist you with China related matters. With our team of experienced lawyers and our years of experience in helping our clients strategize and structure deals in China, OLN is able to serve your needs comprehensively.
OLN offers a wide range of services including the establishment and maintenance of business presences in China and all that is associated with such a business.