Decoding the Term Attorney-Client Privilege in China

Understanding Attorney-Client Privilege

The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to. The privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testifies under oath.

When does Attorney-Client Privilege begin?

The attorney-client privilege generally begins when you ask a lawyer for legal advice. Note that this can be in an initial consultation, not simply when you sign a letter of engagement. The main goal of the attorney-client privilege is to take the clients into confidence so that they can tell their lawyers everything they need to know to help them with their case.

Clear Out Misconceptions Regarding Attorney-Client Privilege

Under PRC Law, there is no equivalent regime of attorney–client privilege similar to those found in a common law jurisdiction like the US. It is vital to understand that not every communication between the attorney and the client protected by the attorney client privilege. For example, if a shared information can be obtained from a non-privileged source, it is not protected by the attorney client privilege. The privilege is held by the clients and in most cases can only be waived by clients, not their attorneys. The attorney-client privilege is inconsistent with the truth-seeking function. It conceals information even when that information may be essential to determining facts.

Framing a contract while doing business in China is a tricky task. Foreign businesses need to understand the true value of attorney-client privilege in China and then proceed to sign out a permanent deal with a China business lawyer. US-style attorney-client privilege does not exist in China. Nonetheless, the combined effect of a confidentiality obligation imposed by the PRC Lawyers Law and the nonexistence of a US-style discovery means that attorney-client communication and attorney work product enjoy “privilege-like” protection to a certain degree in China.

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