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The Good Chinese Lawyer explores the ethical and professional challenges that will confront a law student, and will help them to prepare for life as a lawyer. The book offers principled and pragmatic advice about how to overcome such challenges. It urges readers to examine motives for seeking a career in law, to foster a deep understanding of what it means to be 'good' lawyer, and how to draw on virtue and judgment when difficult choices arise, rather than simply relying on rushed compliance with rules or codes. The Good Chinese Lawyer analyses four important areas of legal ethics – truth and deception, professional secrets, conflicts of interest, and professional competence – and explains the choices that are available when determining a course of moral action. It links theory to practice, and includes many diagrams and scenarios to illustrate ethical concepts and good decision-making.
We owe our first duty to the law and to the stability of society and our second to the courts. Only then can we consider our clients and others. But some lawyers put their clients first (out of concern for their fees), and the rule of law suffers. Key issues include hiding documents, defending apparently ‘guilty’ people and evading tax. Lawyers can ignore their own character development and try to draw distinctions between active and passivedeceit, especially in relation to taxation. We analyse several unethical scenarios, for example, lawyers who encourage some clients to evade tax by characterising it as avoidance and ‘arguably legal’. General morality – that is, consequentialism, Kantian ethics, virtue ethics and Confucian teaching – and the three sets of conduct rules that apply in the PRC, Hong Kong SAR and Taiwan, suggest that good tax lawyers’ efforts to assist their clients to pay less tax within the law will be evident from the transparency of their advice and their accountability in their keeping of proper records. These virtues operate in the context of a wider loyalty to clients: to keep them out of the hands of state authorities investigating taxation infringements.
‘Negligence’ is frightening to think about, but accepting the possibility of making mistakes as lawyers does not mean we ought to give up on a desire to perform to the best of our ability, and at the peak of our moral consciousness. This chapter applies morality to our technical competence. In the hothouse atmosphere of competitive law firms, the underlying conflict between commercialism and professionalism leads to moral as well as financial risk. Only true professionalism – which emphasizes the dual virtues of integrity and competence – will sustainably support your future. Too much concentration on the business of law and profit can and does lead to the temptation to ‘borrow’ clients’ money and to carelessness. There are extensive conduct and accounting rules that focus on accounting honestly for clients’ money, especially for lawyers who practise across international borders, and we should back that up by arranging professional indemnity (malpractice) insurance against any negligence. In addition, risk management, continuing legal education and specialist accreditation courses are all available through the internet to support you, even if not available through a bar association
Technical challenges for lawyers impact on our ethics. Some predict that singularity technologies will progressively merge human and machine intelligences. These may become evident in knowledge processing and therefore affect litigation, with potential for such merged intelligences to minimize moral accountability. Perhaps machine intelligences will progressively calculate which actions are ‘better’ in rigid consequentialist terms, ignoring competing moral frameworks described in this book, and government authority will be challenged. Speculation, of course, but there is unlikely to be a lessening in the need for moral leadership from law school deans, bar association presidents and leading practitioners, as Greater China strives for overall sustainability. Arguably, with our lawyers’ sensitivity to virtue and Confucian teaching we might conclude that narrow role morality is no longer enough. Our final social utility (and the reason for any social and economic privileges we retain as lawyers) may lie in our willingness to help whole communities access practical justice: that is, genuine equality of access to health, food, housing and education.
Client confidentiality expresses the duty of loyalty to our clients, but our secrets are shrinking. Social media, hacking and surveillance are increasingly modern realities. Globally, concern about leaky ‘cloud’ storage, terrorism, corruption, organised crime and money laundering, as well as economic and trading challenges to state and public security, are reportable and create an environment in which lawyers cannot guarantee clients’ privacy. Nevertheless, professional secrecy remains important for lawyers to observe, because clients will not trust us if they think their affairs will be disclosed. We tabulate the confidentiality conduct rules across Greater China and analyze several scenarios according to the four frameworks of general morality. Deciding to keep a secret for good reasons can be a moral act that increases the stability of society. In the mainstream of cases where there are no state secrecy issues, lawyers need to re-legitimize support for client confidentiality because keeping secrets is still important to our communities, so that filial and personal relationships are respected and the common privacy we all need is retained.
Legal ethics challenges us to do the right thing when no one is looking. Beware the lawyer who tells you that something is ‘arguably legal’. Clinical legal education in your law school helps with the answer, because it places you in contact with real clients and teaches how to be a moral lawyer. But do we choose the right thing according to law only, or law and something else? Here, we use a detailed table to examine how Chinese relational ethics are strengthened by comparisons with Western duty-based and virtue ethics frameworks, in contexts including: understanding duty versus (v) knowing your values; education through law or through character development?; asking what should I do v who should I be, v to whom do I owe respect and obedience?; action v character v harmony; rightness v excellence v social cohesion; absolute duties v judgment in choosing virtues v the Confucian balance between all; general principles v particular circumstances v loyalty in pursuit of harmony; reason v emotion v respect in relationships; rule logic v caring perspectives v appropriate role relationships; and the contrasts between universal values, cultural relativity and the political community.
We should act for only one client at a time, to avoid a conflict of interest (or a conflict of loyalty). So what happens when your law firm as a whole has two commercial clients trying to negotiate a merger and one lawyer in one team ‒ yourself ‒ suddenly learns something damaging about the other client that could derail the merger? Traditional role morality, virtue ethics and Confucian teaching require us to avoid situations where interests conflict. Loyalty is not contentious for most of us, except when we are setting our fees. However, the professional conduct rules that apply to current (concurrent) client conflicts and current–former (successive) client conflicts are some of the most complex in Greater China. Utilising scenarios around Big Pharma patents’ disputes, competing airlines and competing steelmakers, our diagrams set out the conduct rules of Greater China and suggest solutions according to general morality. Avoid joint representation in commercially competitive areas – regardless of an information barrier – and where a conflict emerges due to a firm merger, cease acting for both parties.
How do we strengthen our underlying character, so that we can practise law without fear? Aristotle insightfully insisted that character (virtue) does not suddenly appear; it does not just arrive one morning (in an email). We develop our character by applying ourselves to that task, usually over years. We can become ‘habituated’ to goodness by reflecting on the good and bad experiences we all have. Let us not forget that as lawyers we are guaranteed to be put under formidable pressure by clients, other lawyers and even police, to do the wrong thing. The key virtues for lawyers are wisdom and knowledge, courage and justice – they are a stable foundation for modern legal ethics. To those who say virtue ethics is too subjective, or paternal or fails to give adequate action guidance when it is needed (compared to Western duty-based frameworks), we say that virtue ethics looks first at the actor and then the act. If the actor is good, so also will be the act. Nevertheless, reflection on the connections between your virtues and various lawyer ‘types’ (the zealous advocate; the responsible lawyer; the moral activist; and the ‘relationship of care’), will strengthen your character further.
There are several types of law degrees in Greater China but no simple way to compare them or work out whether a single law school will provide you with a good (moral) legal education. We explain what makes a law school morally good and what questions to ask your preferred law school. We discuss how to manage your mental health as a law student and lawyer, and how this is connected to Confucius’ teaching about the ‘superior man understanding what is right’. We discuss Davd Luban’s insight that lawyers’ careful moral thinking is critical to the future of law and legal practice. Because professional conduct rules can only rarely be applied without reference to context and circumstances, there will always be a need for lawyers to use an underlying moral framework or methodology, when they encounter new or challenging decisions. Four global approaches to ethical decision-making are introduced – consequentialism (similar to utilitarianism), Kantian ethics, virtue ethics and Confucian teaching. At the heart of each of these approaches is a commitment to integrity and, in those circumstances when it is required, to open candour and frankness, irrespective of self-interest or embarrassment.
The common types of poor lawyering include bribery, receiving private fees, forgery, theft of clients’ money and obtaining property by deception, all with themes of greed and laziness. But there are also failures of lawyers’ regulation not just of lawyers’ character, with little discipline of the largest law firms involved in corporate scandals. Choosing a ‘good’ law firm is therefore important for all law students’ futures, and it is important to ask firms about many issues, including their attitude to pro bono work and whether they have a written policy on handling ethical issues. More fundamentally, if the public interest in ‘good’ lawyering is to be supported across Greater China, then better legal ethics education is central to change and social stability. This chapter examines key procedural rules about investigating lawyer misconduct in each of the PRC, Hong Kong and Taiwan, and provides the different definitions of what is misconduct, lists of penalties, details of complaints processes, reviews and appeals. Finally, we set out a table of key ethical rules affecting legal professional conduct in each of the Pthree jurisdictions, including those related to fees and costs.