The definition of legitimate professional privilege does not exist under the law of the People’s Republic of China (PRC). PRC Laws and Regulations do not include clauses that protect lawyers from being required to reveal details they obtain from a client to a third party.
There is no legal protection of work-product and there is no protection of correspondence between lawyers and clients on the basis of legal professional privilege in China.
Legal professional right in civil litigation
Although the PRC Lawyer does include clauses requiring lawyers to keep confidential some information they receive during the course of their practice, this obligation is not similar to the principle of legal professional privilege or legal security of the work product.
Law of the Attorneys establishes that:
A lawyer must retain confidential information that he or she receives from a client or others (who have not agreed to reveal it) in the process of defending a client; the exception, however, is information on the planning or commission of criminal acts (Article 38 of the Law of the Attorneys
The lawyer shall keep confidential state secrets and commercial secrets which he or she obtains in the process of representing the client and shall not reveal the personal secrets of the client (Article 38 of the
- Law of the Attorneys) and
- Audio monitoring will not be carried out by the government when a prosecutor interviews a criminal suspect or complainant (Article 33 of the Law of the Attorneys)
However, the government authorities of the PRC may be obliged to reveal the information referred to in points 1 and 2 above, although this is not clearly specified, and
An order from the court (Article 67 and Article 72 of Civil Procedure Law which came into effect on 1 July 2017). Again, there is no argument for legitimate professional privilege as this definition does not exist in China.
Judicial professional privilege in the field of criminal investigation. In criminal cases, the Criminal Procedure Law of the PRC also includes the general concept of a prosecutor providing evidence, close to that of Article 72 of the Civil Procedure Law. However, extra safeguards can be found in the amended Criminal Procedure Act (which came into effect on 26 October 2018). Article 48 states that ‘a counsel shall have the right to retain confidential details about the client gathered in the course of legal practice. For information concerning any imminent or ongoing criminal activity that would jeopardize national and public security or cause significant personal safety harm, a lawyer must advise the judicial authorities of the PRC. However, we recognize that this clause does not offer general safeguards for ‘lawyer-client correspondence’ in practice and is distinct from the principle of ‘judicial professional privilege’ in common law jurisdictions. It also includes a range of exceptions requiring the disclosure of information to ‘PRC judicial authorities’ as mentioned above.
Legal professional privilege in the form of antitrust/competition proceedings Legal professional privilege does not apply in the context of the investigation in China by antitrust and competition authorities. Article 42 of the Anti-Monopoly Law states that business owners under investigation, interested parties or other related agencies or persons shall comply with the anti-monopoly law enforcement authorities and shall not refuse to intervene with their investigations. A similar clause can also be found in Article 14 of the Law on Anti-Unfair Competition. These steps could be construed to place the same conditions on lawyers to comply with antitrust authorities in their anti-competitive investigations.
In the context of the merger examination, the Chinese competition authorities may, in some cases, request information subject to legal professional privilege in foreign jurisdictions; the failure to reveal such materials may have an effect on the merger evaluation.
This clause is so broad in nature that lawyers are under the same duty to comply with law enforcement agencies in the course of their investigations.