Abstract

In the United States, the attorney-client privilege doctrine is considered to be a fundamental aspect of the attorney-client relationship. In contrast to a lawyer’s ethical duty of confidentiality, the attorney-client privilege is an evidentiary rule, which prevents disclosing privileged information to any fact finder. Accordingly, although the attorney-client privilege has a more narrow scope than a lawyer’s duty of confidentiality, it provides broader protection for the relevant communications. With the growth and development of China’s legal profession, Chinese laws and regulations have imposed a greater duty of confidentiality upon Chinese lawyers, most recently through the revisions to the Law of the People’s Republic of China on Lawyers in 2008. However, China still lacks any doctrine comparable to the American attorney-client privilege, and many lawyers in China are very unfamiliar with the “attorney-client privilege” concept. By examining the scope of Chinese lawyers’ obligation of confidentiality, this paper examines how the absence of an attorney-client privilege doctrine in China affects Chinese lawyers, in-house lawyers, and foreign lawyers who work in China. This paper argues that the absence of an attorney-client privilege doctrine negatively impacts the attorney-client relationship in China by discouraging open and honest communication between lawyers and their clients. Moreover, the absence of the attorney-client privilege in China can create unique ethical dilemmas for foreign attorneys who work in China.