Why can't Chinese lawyers make any promise in litigation cases?
Many clients come to us because they have a dispute in China. After we have invented a litigation strategy, the corresponding opportunities, risks and quotation, the client brings the question: ”Can you guarantee a definite result in this case?". We usually reply to the client and state in our contract that we cannot guarantee a definite outcome. So many clients are confused: why are you a professional yet you can't guarantee any result on my case?
In this article, we shall provide a throughout reply to this inquiry.
Why can't a Chinese lawyer promise any outcome in a litigation case?
According to Chinese regulations and the All China Lawyers Association, lawyers cannot guarantee the outcome of a case to their clients.
Article 33 provides that "A lawyer undertaking business shall inform the client of the legal risks that may arise from the handling of the entrusted matter, and shall not make improper promises to the client about the outcome of the handling in an express or implied manner."
Chapter 4, Section 2, provides for the prohibition of false promises, and Article 44 provides that "The lawyer shall analyze the facts and evidence provided by the client in accordance with the legal provisions and present an analytical opinion to the client." Article 79(1)(e) stipulates that a lawyer cannot "make false promises regarding the results of legal services or litigation."
* The Codes of Profession Conduct for Laweyers (for Trial Implementation) Article 10, paragraph 5 stipulates that when lawyers and law firms promote their business, they shall not promise the result of handling cases.
According to the above-mentioned regulations and the Bar Association, Chinese lawyers cannot promise clients a guaranteed case outcome. If a lawyer promises the result of a case violating the regulations, the lawyer will be disciplined in accordance with the Rules for Disciplinary Acts of Members of the Bar Association and the relevant industry normative documents, or the lawyer will be held legally responsible in accordance with the Law on Lawyers and the relevant rules and regulations.
So, why is there such a provision at first place.
First of all, the main reason is the complexity of the litigation procedure, the results of litigation can be varied by multiple factors: evidence situation, legislations and regulations, the case officer's understanding and cognition, national policies, authorities intervention, beyond-legal factors, etc. will play a role in affecting the result.
Secondly, what a lawyer generally receive is the client's unilateral statement of facts and evidences, and even if the client does not intend to conceal the fact, some deviations in the statement may affect the lawyer's evaluation.
Even if an attorney is able to make a judgment on the law and ultimately help a client win a favorable verdict, that outcome depends on many other factors in order for the verdict to be enforced and getting your money back. For example, if you win a lawsuit against a company, or a person, but that person suddenly dies or that company is suddenly all burned down without insurance coverage, situations like these are outside of the lawyer's control.
Due to the factors beyond lawyer’s control, a responsible lawyer cannot give a promise for the result of your ongoing case even if he put on his best effort and invented a throughout litigation strategy.
Why would you hire a lawyer if the lawyer cannot guarantee it?
First of all, it is nearly impossible to get your money back without professional assistance in many cases. This is because a foreign company or individual must appoint a Chinese lawyer for their representation in litigation in an accordance to Chinese legislation.
* Civil Procedure Law of the People's Republic of China (2017 Amendment)
Article 263 Foreigners, stateless persons, foreign enterprises and organizations who are suing or responding to lawsuits in the people's courts and need to appoint a lawyer to represent them must appoint a lawyer from the People's Republic of China.
Secondly, there is probability in anything. For example, a villa doesn’t necessarily lead you into an overall satisfying life, but it does increase your possibility of happiness. Likewise, in legal matters, the work of lawyers is the same. In many disputes, receiving the professional assistance of a lawyer to handle the matter can help you to decide whether a particular matter is worth doing and help you to evaluate the benefits and costs of each legal action; in addition, there are many specialized areas where you can only be represented by the most specialized lawyer, who is also most familiar with the industry.
In the area of Chinese legal matters for foreigners and foreign companies, we are the attorneys who specialize and are most familiar with this area. Our expertise and experience can help you to avoid many pitfalls and traps and greatly increase the likelihood of achieving a satisfactory outcome.
Larry Zhou, Partner
Landing Law Offices China
Mobile& WhatsApp: +86 13342931852
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