Identifying violations and problems in the activities of receiving and providing legal services by lawyers and law firms in Vietnam

1. Some Overview of the Operation of Legal Practice Organizations in Vietnam in Recent Times.

In recent times, in addition to their field of operation, lawyers and legal practice organizations have made positive contributions to many draft legal documents, contributing to the construction and completion of Vietnam's legal system, participating in the judicial reform and initially affirming the voice of the legal profession in the construction of the socialist political and social system in Vietnam.

Regarding the activity of receiving and providing legal services, in the Report at the ceremony commemorating the 74th Anniversary of Vietnam Lawyers' Traditional Day (10/10/1945-10/10/2019) and 10 years of establishment of the Vietnam Bar Federation (2009-2019), Lawyer Phan Trung Hoai summarized the impressive figures: Within 10 years (from 2009 to 31/12/2018), the team of lawyers participated in more than 133,000 criminal cases; over 114,000 civil cases; more than 51,000 cases in the field of economics, business and commerce[1]... Not only increasing in quantity, the legal services of lawyers have increasingly improved in quality and have changed and shifted in structure. If in the past, organizations and individuals only needed to use legal services of lawyers when disputes had actually occurred, forcing them to be resolved through litigation at the court, the provision of legal services by legal practice organizations is extremely diverse and is being widely used. People and businesses come to lawyers to be provided with consulting services and support in implementing administrative procedures (civil status, land, business, investment, intellectual property...) and wish to protect their legitimate rights and interests right from the process of negotiating and drafting contracts; building internal rules and regulations; resolving disputes by negotiation and mediation; participating in criminal cases from the pre-litigation stage... The legal services provided by lawyers and legal practice organizations have helped administrative procedures to operate quickly and accurately, reducing the time, effort and costs of both state agencies and individuals and businesses; minimizing and limiting damages and conflicts that may occur during the operation of organizations and business transactions; clarifying the objective truth, preventing and detecting violations in the litigation process, protecting the legitimate rights and interests of customers.

To create favorable conditions for the practice of lawyers, the legal system related to the rights and obligations of lawyers in the process of providing legal services is also increasingly complete. Lawyers have been better guaranteed their rights when participating in the litigation process, especially, lawyers can be recognized as protectors right from the investigation stage. The opinions of lawyers and legal practice organizations at the court hearing have been more concerned, recorded and valued by the Trial Panel and prosecutors. In addition to the rights prescribed by law, lawyers and legal practice organizations must ensure compliance with the provisions of the Constitution, the 2015 Civil Code, the 2015 Criminal Code... to specialized regulations stipulated in the 2006 Lawyers Law; the amended Lawyers Law in 2012 and guiding documents. Besides, due to the specifics of the profession, the activities of lawyers are also subject to the regulation of the Code of Ethics and Professional Conduct for Vietnamese Lawyers. These regulations and rules both orient the professional activities of lawyers and prevent and handle violations.

However, like any profession or organization, in addition to achievements and advantages, the activity of receiving and providing legal services of lawyers and legal practice organizations still has shortcomings that affect the legal profession in general. Identifying violations and problems in the activity of receiving and providing legal services of legal practice organizations in Vietnam will contribute to building and developing more strongly the professional activities of legal practice organizations in Vietnam.

2. Identifying Some Violations and Problems of Legal Practice Organizations in Vietnam in Receiving and Handling Clients' Cases

2.1. Identifying Some Violations of Legal Practice Organizations in Vietnam in Receiving and Handling Clients' Cases

In the relationship between legal practice organizations and clients, violations of legal practice organizations, if any, mainly exist in the process of receiving and handling clients' cases. These violations may stem from omissions due to lack of updated legal regulations, Code of Professional Ethics or lack of practical experience, but there are also some cases where legal practice organizations intentionally violate for their own benefit. Some common violations can be specifically identified as:

Firstly, receiving clients' cases but not handling them

Rule 11 of the Code of Ethics and Professional Conduct for Vietnamese Lawyers stipulates the behavior and conduct of Lawyers in the process of receiving cases and Rule 12 stipulates the behavior and conduct of lawyers when handling clients' cases. However, in the course of practice, some Legal Practice Organizations have received cases, signed Legal Service Contracts and have been paid/advanced consulting fees/lawyer fees but have not performed the committed work.

Stemming from the psychology of trusting lawyers - those who understand the law, respect the law and help others find justice and fairness, clients often agree to pay lawyers a fixed fee in advance, regardless of the outcome of the work. However, after receiving this fee, due to many different reasons, possibly due to limitations in ability, capacity or due to irresponsibility, the Lawyer has not implemented the work in practice to resolve the client's case. Clients - those who have and are having their rights and interests violated, continue to become "victims" by the very object they have placed their expectations on to help them reclaim their legitimate rights. Therefore, before the competent People's Court, there are lawyers who do not participate in the court hearing in the position of protecting the legitimate rights and interests of the parties or the representatives of the parties, but instead stand in the position of defendants, being sued by their own clients. Having to return all or part of the prepaid fees to clients is inevitable and has happened in practice, if the Legal Practice Organization cannot prove that it has performed the work under the Contract with the client[2].

Secondly, receiving, demanding additional money and benefits from clients in addition to the fees and expenses agreed with the client in the legal service contract

Point dd, Clause 1, Article 9 of the amended Law on Lawyers in 2012 stipulates that in the practice of lawyers, it is strictly forbidden for lawyers to: "Receive, demand any additional money or benefits from clients other than the fees and expenses agreed with the client in the legal service contract". However, in practice, in some cases, Lawyers, Law Firms, and Law Offices still request, demand that clients pay additional money and benefits beyond the scope of the Legal Service Contract agreed upon.

The legal service contract is the most important basis for the legal practice organization and the client to exercise their rights and obligations. The lawyer's violation may stem from the ability and experience in assessing the complexity of the case and the lawyer's skills in negotiating and drafting the contract. Having never handled a similar case, the Lawyer made incorrect assessments of the time and manner of performing legal services, leading to proposing a fee that is not commensurate with the value of the service and the necessary effort, or the lawyer agrees to sign a package contract, while not anticipating the incurred costs, such as state fees, travel costs, appraisal costs... At this time, if the Legal Practice Organization requests the client to pay additional service fees, although it is a price suitable for the market, it is still a violation of the legal service contract and a violation of professional rules.

However, in addition to the unwanted case as above, there are still Lawyers who intentionally harass, demand additional money and benefits from clients, even costs that do not exist in reality. Regarding these cases, there have been Lawyers who have been disciplined by the Reward and Disciplinary Council of the Bar Association[3], even, if there are sufficient grounds to prove fraudulent tricks, the Lawyer may be prosecuted for the crime of Fraudulent appropriation of property[4].

Thirdly, committing to, promising work results

Throughout the course of practice, contacting clients and negotiating to sign a service contract, lawyers are constantly faced with questions from clients: Will the case be won? What is the rate/probability? How many years of imprisonment will this violation be sentenced to?... In these situations, many lawyers are confused before the client's probing questions about the outcome of the case and make affirmations and promises beyond the lawyer's control. There are also cases where, with the desire to gain the client's trust to sign a contract and collect fees, some lawyers do not hesitate to commit to "suspended sentence", "innocence", "lowest frame" or commit to the amount of benefits/compensation... that the client will receive. This violation in some cases is also reflected in the terms of the legal service contract with the client, or it may be just verbal promises or ambiguity, causing the client to misunderstand the scope of the lawyer's work. This is identified as a serious violation and is often disciplined at the level of temporary suspension of membership of the Bar Association[5].

Therefore, when encountering this situation, the lawyer must remember Rule 9.8 in the Code of Ethics and Professional Conduct of lawyers, which stipulates that what lawyers are not allowed to do in their relationship with clients is "9.8. Promising, committing to guarantee the outcome of the case on matters beyond the lawyer's ability and conditions to perform". Even if a Lawyer has excellent professional skills and a long history of experience, he/she cannot say for sure the sentence or outcome of the case. Only the effective judgment of the competent People's Court can stipulate these issues.

Fourthly, some other violations

Through the practice of handling violations of the Bar Associations, some legal practice organizations also violate in not signing a legal service contract in writing with clients[6], deceiving clients[7], providing legal services to clients with opposing interests... According to the 2017 Activity Summary Report of the Ho Chi Minh City Bar Association, in 2017, there were 1,405 Legal Practice Organizations, but only 05 cases were proposed for disciplinary action[8]. In Hanoi, in 2017, the Hanoi Bar Association resolved 46 complaints and denunciations related to Lawyers, of which 4 cases were disciplined[9].

Although it is only a small part, these violations have caused effects on the operation of the legal profession in general and affected the reputation and honor of lawyers in particular, making clients lose trust in Lawyers and affecting the nobility in the practice of Lawyers. Therefore, identifying these violations of some lawyers in the course of practice will help lawyers and legal practice organizations realize their professional mission and responsibility, building a team of Vietnamese Lawyers who not only have good expertise, but more importantly, behave professionally, civilly and respect professional ethics.

2.2. Identifying Some Problems in the Activities of Receiving and Providing Legal Services by Legal Practice Organizations in Vietnam

If violations are issues that Legal Practice Organizations need to identify and overcome, then problems in the activities of receiving and providing legal services are issues arising from the contradictions or unclear, unreasonable provisions of current laws and regulations and the code of professional ethics and conduct. These problems will partly cause difficulties and confusion for legal practice organizations when complying and applying them. Some specific problems that can be identified are:

Firstly, transferring clients' cases to other Lawyers for resolution

Clause 3, Article 24 of the Law on Lawyers stipulates: "Lawyers shall not transfer the case they have received to another lawyer to handle, except with the client's consent or in case of force majeure". However, lawyers practicing at legal practice organizations are not allowed to independently enter into legal service contracts with clients as individuals but must always go through the organization they are practicing in. The Head of the Law Office/Director of the Law Firm is the representative to sign the Legal Service Contract with the client but is not concurrently the person receiving the case. The head of the legal practice organization has the right to assign tasks to one or more other lawyers in the organization to handle the case. This assignment can be expressed by a Lawyer Assignment Decision or confirmed in the Client's Invitation/Request for a Lawyer.

Thus, the problem arises when a lawyer, through personal relationships, has persuaded the client to sign a Service Contract with the Law Office/Law Firm, possibly verbally promising to directly handle the case; however, later, the Head of the Law Office/Director of the Company issued a decision to assign another Lawyer to handle the case. Working in an organization, the lawyer must comply with the organization's regulations and the decisions of superiors. In this case, will the Lawyer be considered to have violated the Law on Lawyers when transferring the case he has received (verbally) to another lawyer to handle?

Therefore, we believe that, until now, understanding what is "the case they have received" is still a difficult and controversial issue. Without a clear explanation of this issue, it will cause conflicts and contradictions in complying with the law, code of ethics and professional conduct with the internal regulations of the Lawyer Association participating in practice.

Secondly, some other problems

In addition to some of the above-mentioned problems, the Code of Ethics and Professional Conduct for Vietnamese Lawyers still has many general regulations. Specifically, Rule 10.1 stipulates that "When requested by a client to accept a case, the lawyer should promptly inform the client whether or not to accept the case", but this regulation is difficult to determine what is "promptly." Without quantitative regulations, clients can interpret subjectively and file complaints about lawyers' allegedly violating behaviors, affecting the reputation and normal operation of the Legal Practice Organization.

3. Some Recommendations to Limit Violations and Problems in the Activities of Receiving and Providing Legal Services by Legal Practice Organizations in Vietnam

Firstly, improve the Code of Ethics and Professional Conduct for Lawyers

As analyzed in the previous section, there are still some problems in the regulations of the Code of Ethics and Professional Conduct for Vietnamese Lawyers, which cause difficulties for the activities of receiving and providing legal services of legal practice organizations in Vietnam. Therefore, it is necessary to consider amending it in the direction of being specific, clear, avoiding causing many interpretations and for unified application, convenient in handling disciplinary actions.

Secondly, improve the professional capacity of lawyers and the management capacity of legal practice organizations

When professional capacity is improved, lawyers will limit errors in assessment during the process of receiving and providing legal services to clients. Lawyers with good persuasion and negotiation skills will not put themselves in a weak position when signing contracts with clients. Lawyers with good contract drafting skills will build a tight Legal Service Contract form to protect the legitimate rights and interests of their organization, limiting conflicts and violations with clients.

In addition, managers and operators of legal practice organizations need to improve their capacity to manage personnel and manage working time. After signing the Legal Service Contract, the actual implementation activities will be assigned to other lawyers in charge and legal staff, trainee lawyers to assist. If not closely in the work of controlling time and reporting, the Head of the Law Office/Director of the Law Firm will be responsible for the lawyer, subordinate staff not actively and proactively performing the work for clients. Therefore, legal practice organizations should develop and standardize regulations and rules in receiving and handling client files, especially rules in maintaining contact, notifying progress and reporting results of work implementation with clients.

Thirdly, review and amend legal regulations on handling violations of the Law on Lawyers and the Code of Ethics and Professional Conduct for Lawyers

Currently, acts of violating the Law on Lawyers will be subject to administrative sanctions as prescribed in Decree 82/2020/ND-CP dated July 15, 2020 of the Government on sanctioning administrative violations in the field of judicial support; administrative justice; marriage and family; enforcement of judgments; bankruptcy of enterprises and cooperatives and violations of the Code of Ethics and Professional Conduct for Lawyers will be handled according to the Regulation on settlement of complaints, denunciations, disciplinary actions issued together with Decision No. 203/QD-HDLSTQ dated December 19, 2019 of the National Bar Federation. However, the sanctions and forms of penalties in these documents are not yet sufficient to deter violations. Therefore, it is necessary to consider amending and supplementing the above documents in the direction of strictly handling violations, especially considering the relationship between violations and consequences; not to let a few individuals and organizations affect the general professional activities of lawyers of the entire legal community in particular.

Fourthly, strengthen legal dissemination and professional skills training for lawyers

Currently, the provisions of the Law on Lawyers and the Code of Professional Ethics and Conduct are included in the content of compulsory subjects, the first in the teaching system of lawyer training at the Judicial Academy to ensure that future lawyers are fully equipped with knowledge, skills and ethical qualities. However, in reality, laws and rules are always amended and supplemented to ensure rationality and suitability with socio-economic development; on the other hand, there is a part of lawyers who switch from judicial titles, related professions and are exempt from lawyer training such as judges, prosecutors, investigators, professors, associate professors, doctors of law. Therefore, socio-professional organizations of Lawyers need to have a mechanism to periodically organize programs to disseminate laws and train professional skills for member lawyers to help lawyers and legal practice organizations avoid committing violations in professional activities. Strengthening the dissemination of laws and professional skills training for member lawyers regularly will help lawyers update new legal regulations and be more solid in professional knowledge, while enhancing the position of the profession and the Lawyer community in Vietnam.

Fifthly, strengthen the inspection and supervision of the practice of lawyers and legal practice organizations

So far, acts of violating the law and rules of lawyer practice in the process of receiving and providing legal services have been detected and handled mostly through complaints and denunciations of clients. However, handling at this stage is too late to be able to remedy the consequences that clients have suffered.

Therefore, competent authorities, the Vietnam Bar Federation, and Provincial Bar Associations need to proactively and strengthen the inspection and supervision of the practice of lawyers and Legal Practice Organizations, to promptly detect and handle violations of the law, not to let the phenomenon of violations last for many years, for many clients and cause serious damage.

However, it is necessary to clearly define that the inspection and examination work is carried out for the purpose of helping and rectifying the practice of lawyers in the direction of efficiency, professionalism, and compliance with the law, it is necessary to absolutely prohibit acts of harassment, intentionally causing difficulties, disrupting the practice of legal practice organizations during the inspection and supervision process.

Conclusion:

Any profession in society has positive contributions to the development of society, but there will still be points that need to be improved. It is thought that, in the practice of the profession, each lawyer and legal practice organization should strive to maintain the "nobility" of the lawyer profession with all their "Heart" and "Talent." The process of receiving and providing legal services are the two most important stages for legal practice organizations to prove and build their image and brand, so they need to be especially valued and strictly adhered to. We believe that, in the future, the role and position of Vietnamese lawyers will be increasingly affirmed and elevated in society and internationally.

Author: Legal Department - Brandco Law Firm

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