法律职业密权：律师之护盾。中国应该拥有吗？

2020-09-01 15:45:59 629

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Legal Professional Privilege: A Shield for Lawyers. Should China Have it?

法律职业密权：律师之护盾

中国应该拥有吗？

Introduction

前言

My shields are so hard that nothing can pierce through them.

Hanfeizi Nanyi

吾盾之坚，物莫能陷也

《韩非子·难一》

The principle of legal professional privilege has long been recognized by the common law, according to which the communications between a client and the legal adviser are protected from being disclosed. This principle could find its ancient origins in the Roman Republic, when the legislation made advocates and attorneys incompetent as witness in proceedings. It was firmly established in English law during the reign of Elizabeth I, and was accepted by Commonwealth law and US law.[1]

法律职业密权是普通法中的一项古老的原则，目的是为了保护律师与客户之间的通讯不被披露。该原则起源于罗马共和国，当时的法律免除辩护人与律师在法律程序中作证。伊丽莎白一世在位时期，英国法确立了该原则，随后英联邦国家与美国的法律也吸收了该原则。

Based on that principle, some relevant evidence could be precluded in litigation and other proceedings, and “one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered”.[2]

根据该原则，在诉讼与其他程序中有些相关的证据可以被排除，“向律师寻求咨询和帮助的人不应担心其秘密将会被披露”。

This old principle recognized in the common law jurisdiction, regrettably, does not have roots in the law of the People’s Republic of China (“PRC” or “China”). Both foreign and Chinese lawyers may be faced with the opposite situation in dealing with Chinese authorities.

这项在普通法中被普遍接受的古老原则, 很遗憾并不存在于中国法中，外国律师与中国律师在中国面临当局时都将处于完全不同的境地。

This article will examine this principle in the common law system by analyzing how the shield protects confidential information in several rules and cases, compare those with the legislations in China, and discuss the possibility for the reform of the law of the PRC. We ask the question, “if this concept is lacking in China, should China have it in its laws? Should Chinese lawyers have this shield to protect from spears of asking confidential information from third parties in litigation and government investigations?”

本文分析了普通法中与保密义务相关的规定与案例，与中国的立法进行对比，并探讨未来中国法律改革的可能性。我们提出如下的问题：如果该原则在中国不存在，那么中国是否应当确立它？中国律师是否应当在面对政府与法庭调查执掌的“矛”要求出示保密文件时，拥有这样一把“护盾”来保护秘密通讯不向第三方披露？

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Legal Professional Privilege in Common Law Jurisdictions

普通法下的法律职业密权

What is subject to the protection under the legal professional privilege is usually divided into two categories: legal advice privilege and litigation privilege. The former includes the communications that pass between a client and the client’s lawyer, which have come into existence for the purpose of giving or receiving legal advice. The latter covers confidential communications between any of a client and its lawyer, or a client and a third party, or that lawyer and a third party, which come into existence once litigation is reasonably contemplated or is in existence, and which is made for the sole or dominant purpose of the litigation.[3]

法律职业密权一般分为以下两类：法律咨询密权与诉讼密权。前者保护律师与客户之间为了寻求或提供法律咨询意见的过程中所产生的通讯。后者包括律师与客户之间、客户与第三人之间、律师与第三人之间，在诉讼过程中或者可能发生诉讼的情形下，单独或主要为了诉讼的目的而形成的保密通讯。

The English Enterprise Act 2002 provides for a confidentiality regime regarding competition-related inquiries undertaken by domestic authorities within the UK, which prevents disclosure of documents.[4] The scope of the concept in English law accords with what is mentioned above: legal advice privilege and litigation privilege. To be more specific, litigation privilege affords a wider protection than legal advice privilege, according to which communications with third parties as well as those between a lawyer and a client are protected. It applies in existing or prospective adversarial proceedings. In circumstances without adversarial proceedings, legal advice privilege applies to materials constituting confidential communications between a lawyer and a client, made for the purpose of giving/obtaining legal advice.[5]

英国《2002年企业法》规定了相关保密制度，根据该制度，英国当局进行的与反竞争相关的调查中，相关文件免于被披露。在英国法下，法律职业密权的范围与上述范围基本一致：法律咨询密权与诉讼密权。具体而言，诉讼密权比法律咨询密权的范围更广，前者不仅保护律师与客户之间的通讯，也包含了与第三人相关的通讯，其适用情形是已存在的或者有可能发生的对抗性法律程序。在没有对抗性法律程序的情形下，法律咨询密权适用于律师与客户之间为了寻求或提供法律咨询意见而产生的保密通讯。

In Hong Kong, the principle is regulated in the Basic Law of the Hong Kong Special Administrative Region (“Basic Law”) as one of the fundamental rights of the residents. Article 35 provides that, “Hong Kong residents shall have the right to confidential legal advice”.[6] Legal advice is about the law, compliance with law and consequences and risks associated with non-compliant actions under the law in various legal relations between citizens, entities and the society. Seeking and receiving legal advice is made part of the private law and human rights of ordinary citizens in Hong Kong. Government agencies will have to respect such private rights of the ordinary citizens when they administer affairs vis-à-vis the counter-parts of citizens. The types of legal professional privilege in Hong Kong resemble those in England, though the approaches adopted by courts differentiate with each other, which is discussed below by analyzing cases from these jurisdictions.

在香港法中，该密权被视为公民的一项基本权利。根据《香港特别行政区基本法》（以下简称“基本法”）第三十五条，“香港居民有权得到秘密法律咨询（confidential legal advice）”。法律咨询包括公民、实体与社会之间的诸多法律关系中的法律、法律的遵守、违反法律后可能面临的后果与风险。在香港法下，寻求并得到法律咨询是私法的一部分，也被视为普通公民的人权。政府机关在对普通公民执行公务时，应尊重这样的私法权利。香港法下的法律职业密权与英国法相似，但两地的法院在实务中采取了不同的做法，以下将对不同司法管辖区域的案例进行讨论。

In the US, the legal professional privilege is embodied in the Model Rules for Professional Conduct[7] issued by the American Bar Association, the Federal Rules of Evidence[8] and the Federal Rules of Civil Procedure[9]. The scope of legal professional privilege covers three areas: rule of confidentiality, attorney-client privilege, and work product doctrine. Compared with the rules of confidentiality where information relating to client representation is protected,[10] attorney-client privilege only applies to confidential communication between the lawyer and the client. The work product doctrine “protects from discovery by opposing counsel material that an attorney (or the client, at the direction of an attorney) has prepared in anticipation of litigation”.[11]

在美国，美国律师协会的《律师职业行为示范规则》，以及《联邦证据规则》《联邦民事诉讼规则》均对法律职业密权做了规定。该密权分为三部分：保密规则、律师-客户密权、工作成果密权。保密规则适用于与客户有关的代理事项，与之不同的是，律师-客户密权只适用于律师于客户之间的保密通讯。而工作成果密权保护律师（或者在律师授意下的客户）在准备诉讼的过程中的材料免于被对方律师所知悉。

In practice, a significant issue related to this privilege is whether employees of corporations shall be considered as the “client”. The English courts are inclined to adopt an approach where the scope of the protection and the definition of “client” are narrower. In Three Rivers District Council v Governor and Company of the Bank of England[12], the English Court of Appeal held that the protection afforded by legal professional privilege confined to communications between client and solicitors only, which precludes those internal communications between employees, even though the purpose is to obtain information for legal advice. Further to this narrowness, the English High Court also held in RBS Rights Issue[13] and Director of the Serious Fraud Office v Eurasian Natural Resources Corporation[14] that an employee could not be deemed as a “client” if he/she merely provides factual information to lawyers, in contrast with the authority to obtain legal advice from lawyers.

在实践中，与该密权保护有关的一个重要的法律问题就是，企业的员工是否属于“客户”的范畴。对此，英国法院持有较为保守的态度。在Three Rivers District Council v Governor and Company of the Bank of England案中，英国上诉法院判决，法律职业密权仅限于律师与客户之间的通讯，将员工的内部通讯排除在外，即使其目的是为了寻求法律咨询。英国高等法院坚持了该狭义解释，在RBS Rights Issue案与Director of the Serious Fraud Office v Eurasian Natural Resources Corporation案中也将员工排除在“客户”的范围外，如果该员工仅仅是向律师提供了与事实有关的信息，而不具有寻求法律咨询的权利。

The Hong Kong Court of First Instance followed the approach of the English Three Rivers case in Citic Pacific Limited v Secretary for Justice and Commissioner of Police, which was later reversed by the Hong Kong Court of Appeal. At the first instance, the Court held that only the group legal department and the Board of Directors were the “client” of the external legal advisers, thus the rest of employees are considered to be “third parties”. However, the Court of Appeal rejected this narrow definition of “client” and adopted the “dominant purpose” test. It illustrated the fundamental human right embodied in Article 35 of the Basic Law[15], holding that this limitation impinges upon corporations’ ability to seek meaningful legal advice, if relevant information obtained from employees in different departments are not legally protected by the legal professional privilege.[16] Thus a wider protection of legal professional privilege has been offered by Hong Kong law, according to which the communications/documents made by employees of a corporation are given the privileged status, if the dominant purpose is to obtain legal advice. Therefore, in-house counsel are ensured to look to employees throughout the business to collate information for the purpose of obtaining legal advice without losing privilege.[17]

香港原讼法庭在Citic Pacific Limited v Secretary for Justice and Commissioner of Police遵循了Three Rivers案中的狭义解释，但该判决随后被香港上诉法庭推翻。在一审中，法院判决只有法务部与董事会成员才能被视为外部律师的“客户”，因此其他员工应被视为“第三方”。然而，上诉法庭否定了对“客户”的狭义解释，采用了“主要目的测试”，并强调了该密权是《基本法》第35条下的基本人权，如果对此进行限制，不同部门员工向律师提供的信息不受到法律保护，将不利于公司寻求有帮助的外部法律咨询。因此，香港法确立了更为广泛的法律职业密权保护范围。如果主要目的是为了寻求法律咨询，那么员工与律师之间的通讯与文件同样可以受到保护。据此，企业内部法律顾问在与员工进行信息交流时，如目的是提供法律咨询，那么也会受到密权的保护。

The US courts also adopt a broader approach, when it comes to the issue whether lower-level employees could be regarded as the “client” and whether communications made between the employees and counsel could be protected by the privilege. In the Upjohn Co. v. United States case, an internal investigation was conducted by Upjohn’s counsel, when some questionable payments were suspected to be made by managers of its foreign subsidiaries. The Internal Revenue Service of the United States demanded a production of all the documents related to this investigation, which was refused by Upjohn. The Court of Appeal for the Sixth Circuit held that the attorney-client privilege did not apply to communications made by petitioner corporation’s mid-level and lower-level officers and agents. The Supreme Court overturned this decision and rejected the “control group” test, by holding that low- and mid-level employees who are capable of making a decision that would substantially affect the corporations’ legal position by holding necessary information shall be granted the privilege.[18] This judgement is significant because it not only encourages full and frank communications between attorney and clients, but it also promotes broader public interests in the observance of law and administration of justice.

美国法院在面临低级别员工是否可被视为“客户”以及员工与律师之间通讯保密性的法律问题时，同样采取了更为广义的解释。在Upjohn Co. v. United States案中，Upjohn的法律顾问就其海外子公司经理的可疑付款展开调查。美国国家税务局要求披露该调查过程中的所有文件，该要求被Upjohn拒绝。美国第六巡回上诉法院判决，律师-客户密权不应适用于公司内部中级、低级员工。美国最高法院推翻了该判决，否定了“控制组测试”，并判定，在公司内部掌握重要信息并有权作出对公司产生实质性影响的决定的中低级别员工应享有该密权。该判决具有重要意义，其不仅对律师与客户之间的坦诚交流起到了促进作用，也在遵守法律和司法方面广泛促进了公众利益。

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Does Legal Professional Privilege Exist in Chinese law?

法律职业密权是否存在于中国法中？

This concept of legal professional privilege developed in the common law system does not exist in the law of the PRC. Chinese market lacks this concept and shield for protection of confidential information as far as evidence is concerned.

普通法中确立的法律职业密权并不存在于中国法中，中国市场缺少这样的概念。从证据的角度来说，对保密信息的保护缺乏护盾。

There are requirements that lawyers are under the obligation to keep confidential the State secrets and commercial secrets that he gains during the legal practice, provided in Article 38 of the Lawyers’ Law of the PRC 2008 ("Lawyers' Law").[19] This obligation is not equivalent to the legal professional privilege according to which lawyers and clients are exempted from disclosing confidential information and work products. According to the above-mentioned clause, exceptions exist when the information is about an imminent or on-going crime which may pose threats to State security, public security and another person’s personal safety. Article 72 of the Civil Procedure Law of the PRC 2017[20], in which lawyers are not precluded from those who have the obligation to give testimony, and Article 48 of the Criminal Procedure Law of the PRC 2018[21], in which certain circumstances are mentioned, also recognize lawyers’ burden of disclosing certain information. Although it is relatively rare in practice that lawyers are called as witnesses in their clients’ cases to give testimony, individuals’ legal obligation to testify and to provide evidence render the confidentiality between lawyers and clients fragile.[22]

在2008年《中华人民共和国律师法》的38条中，律师有义务保守在执业过程中知悉的国家秘密与商业秘密。但该义务不等同于普通法下的法律职业密权。后者赋予律师与客户免于相互之间的通讯信息被披露的特权。而上述条款存在例外情形，即委托人或其他人准备或正在实施危害国家安全、公共安全与严重危害他人人身安全的犯罪事实和信息。2017年《中华人民共和国民事诉讼法》第72条并未将律师排除在有义务出庭作证的人之外；2018年《中华人民共和国刑事诉讼法》第48条中，律师也在特定情形下有义务披露相应信息。尽管在实践中，律师在其客户的案件中作为证人被传唤出庭作证的情形较为少见，但律师作证与披露信息的义务使得律师与客户之间的保密性甚为脆弱。

Similarly, unlike the above-mentioned English Enterprise Act 2002[23] which expressly provides for the confidentiality in competition-related inquiries, in Chinese anti-monopoly and anti-unfair competition investigations, lawyers are also included among individuals/entities who are under the obligation to cooperate with the law enforcement authorities and shall not impede the investigations, according to Article 42 of the Anti-Monopoly Law of the PRC 2008[24], and Article 14 of the Anti-Unfair Competition Law of the PRC 2019[25]. The authorities that initiate an investigation has the authority to require lawyers to disclose communications between them and their clients, as well as work products that are confidential.

相对应的行政调查方面，与英国《2002年企业法》下明确的保密特权不同的是，根据2008年《中华人民共和国反垄断法》第42条与2019年《中华人民共和国反不正当竞争法》第14条，中国的反垄断与反不正当竞争的调查中，律师也在有义务配合司法机关调查的个人/实体之列，并不得妨碍调查。而调查机关有权力要求律师披露其与客户之间保密的通讯与工作成果。

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How to Protect Communications from being Disclosed in China?

在中国如何保护保密通讯

It is argued that the real obligations should be prior to the legal obligations. From the perspectives of fundamental human rights, defendants especially in criminal procedures may lose the rights to obtain legal support from lawyers and the privilege against self-incrimination. Also, legal authorities with broad powers may render the advocacy system meaningless where lawyers are not afforded with comparable rights, and it would be more imbalanced when the powers are abused without supervision. Furthermore, non-disclosure is considered to be both a work ethic and a demand to protect lawyers’ themselves.[26]

有观点认为，人们的实际义务优于法律义务。从基本人权的视角来看，尤其是刑事诉讼中的被告人，可能失去辩护律师的法律支持，没有不得自证其罪的权利保障。同样，假如律师没有相应的密权保护的权利，有权的政府机关将会令对抗性制度失去意义，并且在没有监督的情形下滥用其权力，则会令抗辩双方更不平衡。此外，保密原则既是律师的职业道德，也是对律师的一种法律呵护。

Under the current PRC legal system, both companies and law firms from home and abroad could take actions to protect their confidential communications/documents from being disclosed in practice. For example, it is advised that the confidentiality clause is included in both labor contracts between companies and employees, and engagement agreements between lawyers and their clients. No party could disclose confidential information without the express consent of another party. Preservation, management and destruction of archives and documents are also important in keeping the information confidential.[27]

在目前的中国法下，国内外的公司与律师事务所可以采取一定的措施使通讯与文件免于被披露。例如，在公司与员工的劳动合同、律师与客户的委托协议中，增加相应的保密条款。在一方明确同意前，另一方不得披露保密信息。文件与资料的保护、管理与销毁也将对信息保密起到重要作用。

Possible Reform

可行的改革

In terms of the future reform of the legal system of the PRC, it is argued that firstly, lawyers should be made aware how they have the obligation to protect clients’ confidential information, and the law should grant them the shield to oppose request for clients’ confidential information they obtained in their services to clients. Secondly, the stipulation of the exception “facts and information about a crime…” referred to above under Article 38 of the Lawyers’ Law is too vague to be implemented in practice. Lawyers’ obligation to protect confidential information of the clients’ interests, per rights and obligations concept, is the clients’ rights to protect such confidential information, and convert further in language to lawyers’ right to be exempt from disclosure of clients’ communications, legal advice letter or work products. Lawyers’ right or privilege of professional secrecy should be legally recognized and regulated in practice.[28] Any documents marked “confidential communication” or “professional secrecy” in the giving and receiving legal advice shall be exempt from disclosure in litigation or arbitration or government investigative actions (except with special order from the court). It is suggested that specific examples of confidential documents could be listed so that lawyers could be protected from illegal conducts and judicial authorities’ powers could be clearly stated.[29]

关于中国法律未来的改革，首先，律师的保密义务应更加明确，而当律师被要求披露其执业过程中获取的客户信息文件时，法律应赋予其职业密权项下“护盾”的权利。其次，上文提到的律师法第38条中的“犯罪事实与信息”的规定在实践中较为模糊。在权利与义务相对应的概念下，律师为客户利益而保密信息的义务，也是客户的权利，并进一步转化为律师免于披露保密通讯、法律咨询文件与职业工作成果的豁免权。律师对于职业秘密享有的权利或特权，应在法律中被规定，并在实践中得到承认。在提供或接受法律咨询意见的过程中，任何标注有“保密信息”或“职业秘密”的文件，都应在诉讼、仲裁或政府机构的调查中免受披露（除非有法院的特别命令）。另外，法条中可具体列明相关文件豁免披露的情形，保护律师不触犯法律，并具体列明司法机关的相关权力。

Also, the scope of principals subject to the confidentiality obligation is too narrow, according to which only lawyers are included. In the future reform, more principals, including trainee lawyers, paralegals, administrative staff shall also be obliged to keep communications/documents confidential,[30] especially where there is no confidentiality clause included in the labor contract/engagement agreement. The reform of the Chinese law and the adoption of the legal professional privilege concept would be a very useful capacity building program to empower the Chinese lawyers to help protection confidential communications between the legal profession and their clients (which includes both Chinese companies and international companies). It would afford a distinct, invaluable right to have communications protected from compelled disclosure to any third party.[31] The concerns of some foreign government about Chinese companies disclosing confidential information to the Chinese government were raised largely in the context of the phenomenon lacking of such shield of Chinese legal profession to protect their client’s confidential information in litigation and government investigations. To penalize actions that encroach upon private property and the personal and property safety of Chinese entrepreneurs, as required from the Supreme People’s Court[32], could start from granting the Chinese lawyers the shield of protecting their client’s confidential information reflected in the legal advice and litigation related documents from improper disclosure. This tool could serve an effective bottom line for purpose of protection private property and safety of private entrepreneurs in various government agencies’ administrative actions vis-à-vis the citizens or private entrepreneurs.

此外，保密义务中的主体范围过于狭窄，只包括了律师。在未来的改革中，包括实习律师、律师助理、行政人员在内的主体均应遵守保密义务，尤其是在劳动合同或委托协议未包括保密条款时。法律的改革与对法律职业密权的采纳，将使中国律师在为国内外企业提供法律咨询时，更加有能力对秘密通讯进行保密。这种免受第三人知悉的权利是独特且宝贵的。在该权利缺失的情形下，某些外国政府对中国企业在政府调查与诉讼中，会向中国政府披露信息的过滤与日俱增。最高人民法院也指出，对于侵害产权与企业家人身和财产安全的行为要予以惩罚，该等对私权的保护应从赋予中国律师职业密权开始。这样的权利，在政府机关对于公民与私营企业执行的行政执法事务中，是有效保护私人产权与企业家人身和财产安全的底线。

Shielded from the risks and fears of conducting illegal acts by not disclosing the information with clients, lawyers are encouraged to provide more professional and accurate legal advice. Also, clients are freer from fears when they are seeking independent legal advice from lawyers.

如果律师不再为拒绝披露客户信息而承受法律风险，律师将更有底气为客户提供专业、精确的法律咨询。此外，客户在寻求独立的法律咨询时，也将不必担心其秘密之后会被泄露给第三方。

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Conclusion

结语

Without the basic shield of the “legal professional privilege” or “professional secrecy” that communications between lawyers and clients shall be kept confidential, clients’ fundamental rights to confidential information may be infringed in legal practice when lawyers are compelled to cooperate with investigations and provide testimony before courts. Worried about the communications being revealed, clients may not provide detailed information or speak fully and frankly when they are obtaining legal advice from lawyers. In the meantime, lawyers are also faced with the risks of committing illegal conducts where they refuse to disclose certain files which are made for the purpose of providing legal advice.

如果没有“法律职业密权”与“职业秘密”对律师与客户间通讯的保护，实践中，当律师被要求配合调查或出庭作证时，客户对于保密信息的基本权利将会被侵犯。若客户对于信息的保密性存疑，将不会在寻求法律咨询时对律师进行如实告知。同时，律师也将因为拒绝披露执业过程中获取的相关保密文件而承担违法风险。

Over forty years have passed since the Opening and Reform Policy. How many forty years in one’s life? After more than forty years of opening and reform, the private economy has transformed from “0” to “56789”.[33] It is time to grant the forty-plus thousand Chinese lawyers the legal shields to protect their numerous domestic and international clients’ confidential information reflected in the legal advice and other confidential communication and documents from improper disclosure. It is time to capacity-build the bottom line dimension for effectively protecting private and confidential information from unreasonable encroachment in the Chinese market.

改革开放四十多年了。人生有几个四十年呢？经过四十多年改开，民营经济实现从“0”到“56789”的转变。是时候给中国40多万执业律师法律护盾，保护他们无数的国内和国际客户的法律咨询文书和其他保密通讯和文件免于不当披露。是时候在中国市场增强能力，建立底线思维，有效保护私人产权和保密信息免遭无理侵害。

To answer the question raised at the beginning, we want to say that the answer is positive. China needs the reform to make practicing lawyers more empowered and better equipped to assist their clients in protecting confidential information reflected in their professional documents to the clients. The reform of the law of the PRC is demanded, and the achievement of this reform would promote sound legal advice/advocacy, which guarantees fundamental rights and serves public ends. This social importance should be achieved by maintaining a properly functioning justice system and preserving the rule of law.[34]

对于文章开始提出的问题，我们的答案是肯定的。中国需要进行改革，让中国的律师更有能力、有“护盾”在执业过程中对专业文件中载有的保密信息进行保密。未来中国法律的改革势在必行，而这样的改革必将促进法律咨询、法律辩护，保障基本人权，并服务公众利益。要实现这一社会重要性，必须维持适当运作的司法制度和维护法治。

References

[1] Peiris, GL 1982, ‘Legal Professional Privilege in Commonwealth Law’, The International and Comparative Law Quarterly, vol. 31, no. 4, pp. 609-39, p. 609.

[2] United States v. Grand Jury Investigation, 401 F. Supp. 361, 369 (W.D. Pa. 1975).

[3] Smith A, Pigott, AR, Edwards, T 2019, 'The Basics: Does Legal Professional Privilege Apply to All Communications with or through a Solicitor?', Lexology, viewed 31 July 2020,.

[4] The Enterprise Act 2002, part 9 Information.

[5] DLA Piper 2019, Full Handbook: Legal Privilege Global Guide, viewed 7 August 2020,, p. 38.

[6] Basic Law of the Hong Kong Administrative Region, art. 35.

[7] The Model Rules for Professional Conduct, Rule 1.6 Confidentiality of Information.

[8] The Federal Rules of Evidence, Rule 501 Privilege in General.

[9] The Federal Rules of Civil Procedure.

[10] Supra note 7.

[11] Supra note 5, p. 155.

[12] Three Rivers District Council v Governor and Company of the Bank of England (No. 5) [2003] QB 1556.

[13] RBS Rights Issue Litigation [2016] EWHC 3161 (Ch).

[14] Director of the Serious Fraud Office v Eurasian Natural Resources Corporation [2017] WLR(D) 317.

[15] Supra note 6.

[16] Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20.

[17] Knight, S 2015, 'Legal Advice Privilege in Hong Kong – What In-House Counsel Needs to Know', Lexology, viewed 10 August 2020,.

[18] Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677 (1981).

[19] Lawyers’ Law of the PRC 2008, art. 38:

A lawyer shall keep confidential the secrets of the State and commercial secrets that he comes to know during his legal practice and shall not divulge the private affairs of the parties concerned.

A lawyer shall keep confidential the things and information that he comes to know during his legal practice which his client or another person does not want other people to know, with the exception of the facts and information about a crime which his client or another person prepares to commit or is committing to endanger State or public security or seriously endanger another person’s personal safety or safety of property.

[20] The Civil Procedure Law of the PRC 2017, art. 72:

All units and individuals that have knowledge of the circumstances of a case shall be obliged to give testimony in court. The persons in charge of the relevant units shall support the witnesses in testifying.

An individual that is incapable of expressing oneself accurately shall not be allowed to give testimony.

[21] The Criminal Procedure Law of the PRC 2018, art. 48:

A defense lawyer shall have the right to keep confidential the conditions and information regarding a client known in the practice of law. However, if knowing in the practice of law that a client or any other person is preparing for or is committing a crime compromising national security or public security or seriously damaging the personal safety of others, a defense lawyer shall inform a judicial authority in a timely manner.

[22] Fu, YX 2016, Privilege-Like Protection in China – Chinese and Foreign Companies’ Technique to Protect the Confidential Communications and Word Product, LexisNexis, viewed 10 August 2020,<https://hk.lexiscn.com/law/articles-190395.html?

newstype=3&expert_analysis_flag=1&act=detail&access=content_detail&keyword=5Lit5Zu955qE57G7IOW%2Bi%2BW4iOWuouaIt%2BS%2FneWvhueJueadgyA%3D&t_kw=5Lit5Zu955qE57G7IOW%588c-d967-01b9-763c832e3dc4&crid=5a7dd1b4-54d0-4730-a423-80020acd097d>.

[23] Supra note 4.

[24] The Anti-Monopoly Law of the PRC 2008, art. 42:

The business operators, interested parties and other relevant entities or individuals who are under investigation shall assist the Anti-monopoly Law Enforcement Agency in performing its functions and shall not refuse or obstruct the investigation conducted by the Anti-monopoly Law Enforcement Agency.

[25] The Anti-Unfair Competition Law of the PRC 2019, art. 14:

When the supervisory inspection departments investigate suspected acts of unfair competition, the businesses, interested persons, and other relevant entities and individuals under investigation shall faithfully provide relevant materials or information.

[26] Liu, L 2014, ‘The Contest between the Obligation of confidentiality and the Real Obligation - Discussion on the Perfection of the System of Defense Lawyers’ Privilege of Confidentiality in China’, Journal of Northwest University (Philosophy and Social Sciences Edition), vol. 44, no. 1, pp. 94-7.

[27] Supra note 22.

[28] Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 SCR 456.

[29] Supra note 26.

[30] Ibid.

[31] Smith, Gambrell & Russell, LLP 2003, What the Attorney-Client Privilege Really Means, viewed 10 August 2020,.

[32] Zhou, Q 2020, ‘Take Judicial Protection of Property Rights and The Rights and Interests of Entrepreneurs to a New Level’, Cpcnews, viewed 11 August 2020,.

[33] Zepinghonghuan 2019, ‘China’s Private Economy Report 2019: Private Enterprises Made Achievements from 0 to 56,789’, Jinrongjie, viewed 12 August 2020,.

[34] Supra note 28.

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