Thông tư 02/2002/TT-BTP của Bộ Tư pháp về việc hướng dẫn một số quy định của Nghị định số 94/2001/NĐ-CP ngày 12/12/2001 của Chính phủ quy định chi tiết thi hành pháp lệnh luật sư

CIRCULAR

GUIDING A NUMBER OF PROVISIONS OF THE GOVERNMENT’S DECREE No. 94/2001/ND-CP OF DECEMBER 12, 2001 DETAILING THE IMPLEMENTATION OF THE ORDINANCE ON LAWYERS

Pursuant to the Government’s Decree No. 38/CP of June 4, 1993 on the functions, tasks, powers and organization of the Ministry of Justice;

Pursuant to the Government’s Decree No. 94/2001/ND-CP of December 12, 2001 detailing the implementation of the Ordinance on Lawyers (hereinafter called the Decree for short);

The Ministry of Justice hereby guides the implementation of a number of the provisions of the Decree as follows:

1. Regarding the lawyer’s profession training

1.1. The program on lawyer’s profession training shall include the following contents:

a) The legislation on lawyer’s practice;

b) The argument skills in legal proceedings;

c) The skills in legal consultancy;

d) The code of conduct and lawyer’s professional ethics.

The standard program on the lawyer’s profession training shall be promulgated by the Ministry of Justice.

1.2. The lawyer’s profession training shall be conducted in the form of formal training according to planning, plans and standard program on training in the lawyer’s profession of the Ministry of Justice.

The Ministry of Justice’s school for training judiciary officials with different titles is tasked to conduct training in the lawyer’s profession in Vietnam. The lawyers’ socio-professional organizations may participate in training in lawyer’s profession when they satisfy all conditions approved by the Ministry of Justice.

1.3. The Department for Management of Lawyers and Legal Consultants shall assume the prime responsibility and coordinate with the school for training of judiciary officials of different titles in elaborating the planning as well as long-term and annual plans on training in the lawyer’s profession and submit them to the Justice Minister for decision.

1.4. The graduates from lawyer’s profession training courses shall be granted the graduation certificates by the training establishments, which are made according to form set by the Ministry of Justice.

1.5. Certificates of graduation from courses of training in lawyer’s profession overseas are recognized in Vietnam if the overseas training courses on lawyer’s profession have the contents prescribed at Point 1.1 of this Circular and last for at least six months.

When the applicants to join Bar Associations have certificates of graduation from overseas courses of training in lawyer’s profession, the managerial boards of such Bar Associations shall send written requests to the Ministry of Justice for the recognition of those certificates. Enclosed with such a written request must be the copies of the certificates of graduation from overseas courses of training in lawyer’s profession and papers evidencing the training contents and duration. Within 10 days after receiving the written requests from the Bar Associations, the Department for Management of Lawyers and Legal Consultants of the Ministry of Justice shall have to reply in writing about the recognition of certificates of graduation from overseas training courses on lawyer’s profession.

2. Regarding the regulation on test after the completion of probation on lawyer’s profession

2.1. The contents of a test after the completion of probation on lawyer’s profession shall include:

a) The skills on legal consultancy;

b) The argument skills in legal proceedings;

c) The code of conducts and lawyer’s professional ethics.

2.2. The forms of post-probation test shall include:

a) A written test;

b) A practice test.

2.3. The post-probation tests shall be organized periodically once a quarter.

On the 15thof the last month of each quarter at the latest, the Bar Associations shall make the lists of lawyers who shall finish their professional probation in the subsequent quarter and send them to the Ministry of Justice.

Basing itself on the number of probationary lawyers proposed by the Bar Associations, the Ministry of Justice shall decide the post-probation tests according to regions and notify the list of probationary lawyers entitled to sit for the tests, the time and venue of test to the Bar Associations in regions.

Those probationary lawyers of Bar Associations outside the test regions, who have completed their probation and are recommended by such Bar Associations, may sit for the tests if they so wish.

2.4. The Test Councils shall be set up by decisions of the Justice Minister. A test council is composed of:

a) A representative of the Ministry of Justice, acting as president of the Test Council;

b) Lawyers having professional qualifications and prestige, appointed by the Ministry of Justice at the recommendation of the Bar Association in the region;

c) A representative of the Justice Service of the locality where the test is organized, who is a legal expert knowledgeable about the lawyer’s profession;

d) A representative of the Bar Associations of one of the localities in the region, who is a legal expert knowledgeable about the lawyer’s profession.

e) A representative of the school of training judiciary officials of different titles.

The Test Council is assisted by a secretariat decided by the president.

2.5. The Test Councils shall have the following tasks and powers:

a) To guide the test procedures and regulations;

b) To guide the test contents and reference documents;

c) To organize, proceed with and mark the tests;

d) To announce test marks and notify the test results to the Bar Associations which have probationary lawyers sit for the tests.

2.6. The Test Council presidents shall administer the tests, select and seal the test subjects, nominate Council members to conduct the tests and give marks.

2.7. The marks of written tests and practice tests are calculated according to the 10-mark scale. The probationary lawyers meeting the test requirements must get five or more marks for each test.

Within 15 days after announcing the test results, the probationary lawyers may complain about test results. The Test Council presidents shall settle complaints about test results within 10 days as from the date of receiving the written complaints and reply in writing to the complainants. If disagreeing with the Test Council presidents’ decisions on the complaint settlement, the complainants may further complain to the Minister of Justice. The complaint-settling decisions of the Minister of Justice shall be the final ones.

3. Regarding the use of lawyer’s profession-practicing certificates, lawyer’s cards

3.1. The lawyer’s profession- practicing certificates are the State’s certificates of the certificate grantees’ right to practice the lawyer’s profession. Only full-fledged members of Bar Associations can use the lawyer’s profession- practicing certificates to practice the lawyer’s profession. The serial numbers of the lawyer’s profession- practicing certificates shall be inscribed in the lawyer’s cards.

3.2. The holders of lawyer’s profession- practicing certificates must not use the certificates to practice the lawyer’s profession in the following cases:

a) They are being examined for penal liability or have been sentenced but not yet had their sentences wiped out;

b) They are being under administrative surveillance;

c) They have lost or been restricted in civil act capacity;

d) They are no longer members of Bar Associations as they have been elected or recruited to be State officials or employees, have applied for exit from Bar Associations or have their names deleted from the lists of lawyers of the Bar Associations.

3.3. The lawyer’s cards are the certificates of the card grantees’ capacity as Bar Association members. The lawyer’s cards are granted to full-fledged members of the Bar Associations for use when practicing their profession. The probationary lawyers shall be granted the probationary lawyer’s cards.

The lawyer’s cards and the probationary lawyer’s cards are issued uniformly by the Ministry of Justice.

The procedures for granting and use of the lawyer’s cards and the probationary lawyer’s cards shall be prescribed in the Charters of the Bar Associations.

3.4. When providing legal services at clients’ requests, lawyers must have the introductory papers of the lawyer’s profession- practicing organizations. If requested by individuals or organizations, lawyers must produce the lawyer’s cards.

4. Regarding the lawyer’s profession- practicing organizations

4.1. In effecting the operation registration for lawyer’s offices, law partnership companies, branches of lawyer’s offices and branches of law partnership companies, the provincial/municipal Services of Justice shall have the responsibility:

a) To receive and verify dossiers of registration for operation of lawyer’s offices, partnership law companies, branches of lawyer’s offices and branches of law partnership companies. When receiving the operation registration dossiers, the provincial/municipal Services of Justice shall hand over the receipt thereon to the dossier submitters.

b) To record in the operation registers and grant the operation registration certificates to the lawyer’s offices, the law partnership companies, the branches of lawyer’s offices and the branches of law partnership companies.

The operation registration certificates shall be numbered as follows:

The first two numerals stand for the province code, the two following numerals stand for forms of lawyer’s profession-practicing organization; and the four following numerals are the registration numbers of the lawyer’s profession- practicing organizations, including their branches;

c) To receive notices of lawyer’s offices and law partnerships on changes in the contents of the operation registration certificates, the establishment of branches, the operation suspension, the termination of operation of the offices, branches of offices or partnerships. When receiving the notices, the provincial/municipal Services of Justice shall inscribe the contents of the notices in the operation registers and the operation registration certificates of the lawyer’s offices, the law partnership companies, the branches of lawyer’s offices and the branches of law partnerships.

d) To supply information on contents of registration of operation of the lawyer’s offices, the law partnerships, the branches of lawyer’s offices and the branches of law partnerships within the localities for requesting individuals and organizations according to the provisions of law.

e) To preserve and archive the dossiers and papers on operation registration, operation registers.

f) To inspect the operations of the lawyer’s offices, the law partnerships, the branches of lawyer’s offices and the branches of law partnerships according to the contents inscribed in the operation registration certificates. To carry out the inspection, the provincial/municipal Services of Justice shall notify the offices, partnerships and branches thereof 7 days in advance, except for unexpected inspections under decisions of the directors of the Justice Services.

g) To propose to the provincial-level People’s Committees, the Ministry of Justice and competent State bodies measures to remove difficulties and problems in the operations of lawyer’s offices, law partnerships as well as other measures to support the operations of lawyer’s offices and law partnerships.

4.2. The naming of the lawyer’s profession-practicing organizations must comply with Clause 3 of Article 18 and Clause 3 of Article 19 of the Ordinance on Lawyers. The lawyer’s profession-practicing organizations may have their transaction names. They may have logos but must not use the national flag, the Party flag, the national emblem, pictures of national leaders, pictures of Vietnamese currency or the balance of justice as their logos. The names, transaction names and logos of lawyer’s profession-practicing organizations must not identical to the names, transaction names and logos of other lawyer’s profession-practicing organizations which have previously registered their operations nationwide.

4.3. The forms of legal service contract must comply with the provisions of Article 25 of the Ordinance on Lawyers and Article 14 of the Decree. The conclusion of contracts through telegraph, telex, facsimile, e-mails and other forms of electronic communications shall also be considered form of written contract.

4.4. The ceiling remuneration levels applicable to criminal cases shall comply with Article 25 of the Decree. Where lawyers defend the defendants, the accused or protect the victims or other plaintiffs, who are foreigners, in criminal cases, the lawyer’s offices may apply the remuneration levels higher than the prescribed ceiling levels if so agreed by the clients.

4.5. The lawyers’ working time for calculation of remuneration as provided for in Article 25 of the Decree is the time the lawyers have actually spent on performance of the legal services already committed to their clients, including the time for consultancy, the time for study of dossiers, preparation of materials and documents, gathering of evidences, meeting with defendants, the accused, attending court sessions and other reasonable actual time accepted by the clients.

4.6. The lawyer’s profession- practicing organizations, which meet all conditions prescribed in Clause 1, Article 20 of the Decree, are entitled to base their profession-practicing establishments overseas. The time for establishment prescribed at Point a, Clause 1, Article 20 of the Decree shall be counted from the date of issuing the operation registration certificates; for lawyer’s profession-practicing organizations subject to conversion under the provisions in Clause 2, Article 43 of the Ordinance on Lawyers and Article 42 of the Decree, this duration is counted from the founding date before the conversion.

5. Regarding lawyers’ socio-professional organizations

5.1. Pursuant to Clause 2, Article 28 of the Decree, the Charters of the Bar Associations shall prescribe in detail matters related to the lawyers’ organizations and activities.

5.2. The Bar Associations may cooperate with foreign lawyers’ organizations in forms of organizing seminars, informal talks in order to exchange professional experiences; exchanging legal information and other information related to lawyer’s profession; cooperating in providing professional fostering for lawyers, and other forms of cooperation for mutual support in management and practice of lawyer’s profession.

The international cooperation activities regarding lawyers must be carried out in compliance with the provisions of the Government’s Decree No. 103/1998/ND-CP of December 26, 1998 on management of international judiciary and law cooperation.

6. Reporting regime

6.1. The lawyer’s offices and the law partnerships shall report to the provincial/municipal Justice Services and the Bar Associations of the localities where they are headquartered on the situation of their organizations and operations. The biannual reports (from October 1 of the preceding year to March 31 of the current year) shall be sent before May 1stand the subsequent biannual reports (from April 1 to September 30) shall be sent before November 1.

6.2. The Executive Boards of the Bar Associations shall report to the Ministry of Justice and the provincial/municipal Services of Justice on their organizations and operations as well as their lists of lawyers. The biannual reports (from October 1stof the preceding year to March 31 of the current year) shall be sent before May 5 and the subsequent biannual reports (from April 1stto September 30) shall be sent before November 10.

6.3. The provincial/municipal Services of Justice shall report to the Ministry of Justice on the situation of lawyers’ organization and practice of lawyer’s profession in their respective localities. The biannual reports (from October 1stof the preceding year to March 31stof the current year) shall be sent before May 15 and the subsequent biannual reports (from April 1stto September 30) shall be sent before November 15.

6.4. Apart from the reports prescribed at Points 4.1, 4.2, 4.3 of this Circular, the provincial/municipal Services of Justice, the Bar Associations and the lawyer’s profession- practicing organizations shall make reports at the requests of the People’s Committees of the provinces or centrally-run cities or the Ministry of Justice.

7. Transitional provisions

7.1. Those who have been recognized as lawyers under the provisions of the 1987 Ordinance on Lawyers’ Organizations before October 1st, 2001 shall be granted the lawyer’s profession- practicing certificates to practice the lawyer’s profession under the provisions of the 2001 Ordinance on Lawyers. The Executive Boards of the Bar Associations shall request in writing the Ministry of Justice to grant lawyer’s profession- practicing certificates to these subjects. Enclosed with their written requests shall be the lists of lawyers, made according to form TP-LS-5A; the copies of the lawyer’s cards with certification as true copies of the originals by the Managerial Boards of the Bar Associations; two 4x6 color photos. For lawyers who are being complained or denounced against, being considered for discipline or being disciplined in form of being suspended from professional practice, the Bar Associations shall not propose them for the granting of lawyer’s profession- practicing certificates until the complaints and denunciations are completely settled or they have completely served their disciplines.

Within 30 days after receiving the recommendation dossiers of the Executive Boards of the Bar Associations, the Ministry of Justice shall grant lawyer’s profession- practicing certificates to the recommended persons; in case of refusal, it must notify the reasons therefor in writing to the Executive Boards of the Bar Associations.

7.2. For persons who had been admitted to the Bar Associations under the provisions of the 1987 Ordinance on Lawyers’ Organizations and have been probationary lawyers by the time the 2001 Ordinance on Lawyers comes into force, the probation duration shall comply with the 2001 Ordinance on Lawyers.

The post-probation tests for lawyers who shall complete their probation before October 1st, 2002 shall be conducted by the Department for Management of Lawyers and Legal Consultants in coordination with the Bar Associations and the provincial/municipal Services of Justice.

7.3. After being granted the lawyer’s profession- practicing certificates, the lawyers who reside in one locality but are members of the Bar Association in another locality shall be transferred to the Bar Associations of the locality where they reside, if they so wish, irrespective of whether or not the Bar Associations are transformed according to the provisions of the Ordinance on Lawyers. The Bar Association of the locality where the lawyers leave shall have to introduce the lawyers to the Bar Association of the locality where the lawyers move in; enclosed with the introductory papers shall be the original dossiers of such lawyers. Within 10 days after receiving the introductory papers together with the lawyers’ dossiers, the Executive Boards of the Bar Association of the locality where the lawyers move in shall have to admit them and inscribe their names in the list of lawyers of the Association.

The probationary lawyers who reside in one locality but are on probation at a Bar Association of another locality may also be transferred to the Bar Association of the locality where they reside, if they so wish. The procedures for transfer of probationary lawyers to other Bar Associations shall be the same as those applicable to recognized lawyers. The Executive Board of the Bar Association of the locality where the probationary lawyers move in shall have to introduce them to the lawyer’s profession- practicing organizations for continued probation. The probation duration at the former Bar Association shall be counted into the probation duration at the new Bar Association.

7.4. Persons who are recognized as lawyers under the provisions of the 1987 Ordinance on Lawyers’ Organizations and are being public servants shall also be granted lawyer’s profession- practicing certificates to continue practicing the lawyer’s profession till the end of September 30, 2004. After that time, if the above-mentioned subjects continue working as public servants, they must get out of the Bar Associations and terminate their practice of lawyer’s profession. Before terminating their professional practice, these people must complete the cases they have undertaken; in cases where they cannot definitively settle such cases, they must notify their clients thereof and hand over such cases to the lawyer’s profession-practicing organizations for the latter to reach agreement with the clients on continued performing that job.

7.5. The Executive Boards of the Bar Associations shall have to elaborate the schemes on conversion of the Bar Associations under the provisions in Clause 3, Article 42 of the Ordinance on Lawyers and Article 40 of the Decree. The provincial/municipal Services of Justice shall comment on the conversion schemes and submit them to the provincial-level People’s Committees for approval. After the schemes are approved, the Executive Boards of the Bar Associations shall organize the plenary meetings of the lawyers to adopt the Charters, elect the Executive Boards, the managers, the Commendation and Discipline Councils of the Associations. After adopting the Charter and electing their Executive Boards, managers, Commendation and Discipline Councils, the Bar Associations shall start operating according to the provisions of the 2001 Ordinance on Lawyers.

For Bar Associations meeting with difficulties regarding working offices and facilities, pursuant to Clauses 1 and 3 of Article 3 of the Decree, the Executive Boards of the Bar Associations shall coordinate with the provincial/municipal Services of Justice and local functional bodies in proposing the initial support to the provincial-level People’s Committees.

8. Promulgated together with this Circular are forms of the following papers:

8.1. Regarding the lawyer’s profession-practicing certificates:

a) The application for the granting of lawyer’s profession-practicing certificates;

b) The lawyers’ curricula vitae;

c) The short-list of lawyers.

8.2. Regarding the registration of operation of lawyer’s offices, law partnership companies, branches of lawyer’s offices, branches of law partnership companies:

a) The application for registration of operation of the lawyer’s office set up by one lawyer;

b) The application for registration of operation of the lawyer’s office set up by a number of lawyers;

c) The application for registration of operation of law partnerships;

d) The application for registration for setting up of branches;

e) The certificates of registration of operation of the lawyer’s office set up by one lawyer;

f) The certificates of registration of operation of the lawyer’s office set up by a number of lawyers;

g) The certificates of registration of operation of law partnerships;

h) The certificates of registration of operation of branches of lawyer’s profession- practicing organizations;

i) The register of operation of lawyer’s offices, law partnerships;

j) The register of establishment of branches.

8.3. Regarding the notification:

a) The notification on changes in the contents of operation registration certificates of lawyer’s offices, law partnerships;

b) The notification on changes in the contents of operation registration certificates of branches of lawyer’s offices, branches of law partnerships;

c) The notification on temporary cessation of lawyer’s offices, law partnerships;

d) The notification on termination of operation of lawyer’s offices, law partnerships;

e) The notification on termination of operation of branches of lawyer’s offices, branches of law partnerships.

8.4. Regarding reports:

a) Reports of lawyer’s offices, law partnerships on the situation of their organization and operation;

b) Reports of the Bar Associations on the situation of their organization and operation;

c) Reports of the provincial/municipal Services of Justice on the situation of organization and operation of lawyer’s offices, law partnerships in their respective localities.

8.5. Regarding the transition

The list of lawyers.

9. Implementation effect

This Circular takes effect after its signing.

In the course of implementation, if troubles arise, the provincial/municipal Services of Justice, the Executive Boards of Bar Associations and lawyers shall report them to the Ministry of Justice for timely settlement.