| THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
| No: 94/2001/ND-CP | Hanoi, December 12, 2001 |
DETAILING THE IMPLEMENTATION OF THE ORDINANCE ON LAWYERS
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on Organization of the Government;
Pursuant to the July 25, 2001 Ordinance on Lawyers;
At the proposal of the Minister of Justice,
DECREES:
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Article 2.- The right to practice the lawyer’s profession
Persons who satisfy all conditions prescribed by the Ordinance on Lawyers are entitled to practice the lawyer’s profession in forms and scope of professional practice prescribed in the Ordinance on Lawyers, this Decree and other relevant law provisions.
Article 3.- Responsibilities of State bodies towards lawyers and the lawyer’s profession practice
1. The State encourages the development of the lawyer’s profession and applies measures to support the lawyers and the lawyer’s profession- practicing organizations in their professional activities.
2. The State bodies and the competent persons of the State bodies must respect the lawyers rights in their professional practice and must not commit acts of hindering the lawyers from exercising their rights and performing their obligations which have been prescribed by law.
3. Agencies exercising the State management over lawyers organizations and the lawyer’s profession practice have the responsibility to guide, create conditions for, check and inspect the lawyers’ organizations and the lawyer’s profession practice with a view to ensuring their law compliance in their professional activities.
4. Persons who commit acts of violating the law provisions on lawyers’ organizations and the lawyer’s profession practice shall be severely handled according to law.
CONDITIONS FOR PRACTICE OF LAWYER�S PROFESSION
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1. Persons who wish to practice the lawyer’s profession must join the bar associations of their respective residence places. The residence place of a person is determined according to Article 48 of the Civil Code.
2. Persons who wish to join the bar associations must fully meet the conditions prescribed in Article 8 of the Ordinance on Lawyers.
Persons having the university degree in law prescribed at Point b, Clause 1, Article 8 of the Ordinance on Lawyers are persons who have the bachelor of law diploma or the university graduation diploma in law granted by Vietnamese tertiary education establishments, or the university graduation diploma in law granted by foreign tertiary education establishments and recognized in Vietnam under the regulations of the Ministry of Education and Training and the international treaties which the Socialist Republic of Vietnam has signed or acceded to.
Persons who have graduated from lawyer’s job-training courses prescribed at Point c, Clause 1, Article 8 of the Ordinance on Lawyers are those who possess the certificates of graduation from lawyer’s job-training courses, granted by lawyers job-training establishments in Vietnam or foreign countries. The training duration at the lawyer’s job-training establishments is six months. The Ministry of Justice prescribes the contents, forms and planning for the lawyer’s job-training in Vietnam and recognizes the certificates of graduation from the lawyer’s job-training courses, granted by lawyer’s job-training establishments in foreign countries.
Article 5.- Regime on lawyer’s profession probation
1. The Executive Boards of the Bar Associations recommend probationary lawyers to lawyer’s profession-practicing organizations so that they have conditions to be fully trained with skills of practicing the lawyer’s profession and with the lawyers professional ethics. The lawyer’s profession-practicing organizations are obliged to receive the probationary lawyers and nominate lawyers to guide them.
Where a probationary lawyer has reached an agreement with a lawyer profession- practicing organization on his/her probation, the Executive Board of the Bar Association shall recommend such probationary lawyer to that lawyer’s profession-practicing organization.
The lawyer’s profession-practicing organizations must create conditions for probationary lawyers to practice skills of the lawyer’s profession. The probationary lawyers must abide by the internal regulations of the lawyer’s profession-practicing organizations and perform tasks assigned by such organizations.
Basing themselves on the Ordinance on Lawyers and this Decree, the Bar Associations shall specify the recommendation, reception and probation of probationary lawyers at lawyer profession-practicing organizations.
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The probationary lawyers may provide legal consultancy and other legal services for clients according to their guiding lawyers assignment when so agreed upon by clients, but must not sign legal consultancy documents and have to take responsibility before the guiding lawyers and the lawyer’s profession-practicing organizations where they are on probation for the quality of the work they have performed.
Article 6.- Procedures for examination of probation completion
1. The Ministry of Justice shall organize the examination of the completion of the lawyer’s profession probation for the probationary lawyers.
The examination of the completion of the lawyer’s profession probation shall be organized according to regions under the regulations of the Ministry of Justice.
The Examination Council is composed of lawyers with professional skills and prestige, representatives of the Ministry of Justice and concerned agencies as well as organizations, who are legal experts knowledgeable about the lawyer’s profession.
The Ministry of Justice shall promulgate the Regulation on examination of the completion of the lawyer’s profession probation.
2. Those probationary lawyers who satisfy the probation-end examination requirements shall be recommended by the Executive Boards of the Bar Associations for the granting of lawyer�s profession-practicing certificates. Those who fail to satisfy the examination requirements may extend their probation duration twice at most and each extension shall be from 6 to 12 months. If after the second extension the probationary lawyers still fail to meet the examination requirements, their names shall be crossed out from the lists of probationary lawyers of the Bar Associations.
Article 7.- Use of lawyer’s profession-practicing certificates
Only persons who hold the lawyer’s profession-practicing certificates and are Bar Association members can use the lawyer’s profession-practicing certificates to practice the lawyer’s profession.
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LAWYER�S PROFESSION-PRACTICING ORGANIZATIONS
Article 8.- Forms of lawyer’s profession-practicing organization
1. Forms of lawyer’s profession-practicing organization are the lawyer’s office and the law partnership company as prescribed in Articles 17, 18 and 19 of the Ordinance on Lawyers.
2. Lawyers shall practice their profession in the capacity as members of the lawyer’s offices or of the law partnership companies or as persons who work under contracts for the lawyer’s offices or law partnership companies.
3. A lawyer may set up or participate in setting up only one lawyer’s profession- practicing organization.
Article 9.- Charters of law partnership companies, contracts on setting up lawyer’s offices
1. The charter of a law partnership company contains the following major contents:
a) The name, address of the head-office;
b) The field of professional practice;
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d) Rights and obligations of the member lawyers;
e) Contribution by each member lawyer;
f) Conditions and procedures for joining or withdrawing from the list of member lawyers;
g) Organizational, managerial, executive structures;
h) Procedures for adoption of decisions, resolutions; principles for settling internal disputes;
i) Principles for distribution of profits and the member lawyers’ obligations towards the company;
j) Cases of operation suspension or termination and procedures for asset liquidation;
k) Procedures for amending, supplementing the charter of the law partnership company.
The charter of a law partnership company must be signed by all member lawyers.
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Article 10.- Establishment and operation registration of lawyer’s offices, law partnership companies
1. Lawyers may set up lawyer’s profession-practicing organizations in localities where exist the Bar Associations of which they are members. In cases where lawyers of different Bar Associations wish to jointly set up a lawyer’s profession-practicing organization, they may opt to establish and register the operation of such lawyer’s profession-practicing organization in one of the localities where exist the Bar Associations of which they are members.
2. The lawyer’s offices and the law partnership companies shall register their operations at the provincial/municipal Justice Services of the localities where they are headquartered. The procedures for registration of operation of the lawyer’s offices or the law partnership companies shall comply with the provisions in Article 20 of the Ordinance on Lawyers.
3. An application for registration of the operation of a lawyer office or a law partnership company contains the following major contents:
a) The name of the lawyer’s office or the law partnership company;
b) The head-office address;
c) The full names, residence addresses of the founding lawyers;
d) The full name and residence address of the representative at law;
e) The field of professional practice.
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5. If 15 days after submitting complete dossiers strictly according to regulations the applicants still fail to receive the operation registration papers, they may lodge their complaints with the provincial/municipal Justice Services where their operation registration dossiers are received. The procedures for settling complaints shall comply with the provisions in Clause 1, Article 41 of the Ordinance on Lawyers.
6. The operation registration paper of a lawyer’s office or a law partnership company shall be made in two copies. One shall be granted to the lawyer’s office or the law partnership company and the other shall be kept at the provincial/municipal Justice Service.
7. Within 7 days after granting the operation registration paper to the lawyer’s office or the law partnership company, the provincial/municipal Justice Service shall send copies of the operation registration paper to the local Tax Department and the Ministry of Justice.
8. The lawyer’s offices and the law partnership companies must pay the operation registration fee at the rates for registration of enterprises business. The management and use of fees for registration of operation of the lawyer’s offices and the law partnership companies shall comply with the regime on management and use of fees for registration of enterprises business.
9. After being granted the operation registration papers, the lawyer’s offices and the law partnership companies may make their own seals according to the law provisions on seals.
10. The lawyer’s offices and the law partnership companies must send notices on their operation registration to the Bar Associations of the localities where they register their operations.
11. The lawyer’s offices and the law partnership companies shall send their biannual and annual reports on the situation of their organization and operations to the provincial/municipal Justice Services under the guidance of the Ministry of Justice.
An operation registration paper of a lawyer’s office or a law partnership company contains the following major contents:
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2. The field of professional practice.
3. The full name of the representative at law.
4. The full names and residence addresses of the member lawyers.
The Ministry of Justice shall set the forms of the operation registration papers of the lawyer’s offices and the law partnership companies
1. When changing the names, head-office addresses, fields of professional practice, lists of members, the representatives at law, the lawyer’s offices and the law partnership companies must notify such in writing to the provincial/municipal Justice Services of the localities where they register their operation at least ten days before making such changes. The notification contains the following major details:
a) The name of the lawyer’s office, the law partnership company;
b) The head-office address;
c) The serial number of the operation registration paper, the date of issuance;
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e) The changed contents;
f) Signature of the representative at law.
In case of addition of members, the notification must be attached with the copies of the lawyer�s profession-practicing certificates of the new members.
2. Within 7 days as from the date of receiving the notification, the provincial/municipal Justice Services shall inscribe the changed contents in the operation registration papers; where the changed contents do not conform to law provisions, the provincial/municipal Justice Services shall refuse to change the contents of the operation registration papers and notify such in writing to the lawyer’s offices or the law partnership companies.
3. Within 3 days as from the date of inscribing the changed contents in the operation registration papers, the provincial/municipal Justice Services shall notify the local Tax Departments of, and report to the Ministry of Justice on, the changed contents.
4. Within 7 days as from the date of having the contents of their operation registration papers changed, the lawyer’s offices or the law partnership companies must notify the Bar Associations of the localities where they are headquartered thereof.
1. The lawyer’s offices and the law partnership companies may set up branches within or without the provinces or centrally-run cities where they are headquartered.
The heads of the branches of the lawyer’s offices and the heads of the branches of the law partnership companies must be lawyers and regularly work at the branches.
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3. When registering the operations of their branches, the lawyer’s offices and the law partnership companies must pay the registration fees at the rates for registration of the setting up of enterprises branches. The management and use for registration of the setting up of branches of lawyer’s offices or the law partnership companies shall comply with the regime on management and use of fees for registration of the setting up of enterprises branches.
4. After being granted the operation registration papers, the branches of lawyer’s offices or law partnership companies may make and use their own seals according to the law provisions on seals.
Article 14.- Contracts for legal services
The entry into legal service contracts shall comply with the provisions in Article 25 of the Ordinance on Lawyers. For simple cases or matters which can be implemented at once, the lawyer’s offices or the law partnership companies may reach the verbal agreement with the clients but must abide by the provisions of the voucher-making and accounting regime.
Article 15.- Hiring foreign lawyers to work for lawyer’s offices, law partnership companies
1. Lawyer’s offices and law partnership companies may hire foreign lawyers who have been licensed for professional practice in Vietnam to work for them. The procedures for granting licenses for professional practice in Vietnam to foreign lawyers shall comply with the law provisions on foreign lawyers’ professional practice in Vietnam. The rights and obligations of foreign lawyers working as wage-earners for lawyer’s offices or law partnership companies shall be agreed upon in the labor contracts in accordance with the Ordinance on Lawyers, this Decree, the labor legislation and the legislation on foreign lawyers’ professional practice in Vietnam.
2. Within 7 days as from the date of signing the contracts on hiring foreign lawyers, the lawyer’s offices and the law partnership companies must send written notices thereon to the provincial/municipal Justice Services of the localities where they are headquartered together with the contracts on hiring foreign lawyers.
Within 7 days after terminating the foreign lawyer-hiring contracts, the lawyer’s offices and the law partnership companies must notify such in writing to the provincial/municipal Justice Services of the localities where they are headquartered.
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a) Failing to operate for one year as from the date of being granted the operation registration papers or stopping their operation for one year without carrying out the procedures for temporary cessation of operation according to the provisions in Article 17 of this Decree;
b) Failing to send periodical reports for two consecutive years.
2. Branches of lawyer’s offices, branches of law partnership companies shall have their operation registration papers revoked in the following cases:
a) The lawyer’s offices or the law partnership companies, which have set up such branches, have their operation registration papers withdrawn;
b) Failing to operate for one year as from the date of being granted the operation registration papers;
c) Failing to make periodical reports for two consecutive years.
Article 17.- Temporary cessation of operation of lawyer’s offices, law partnership companies
1. The lawyer’s offices and law partnership companies may temporarily cease their operations.
Within 15 days before the projected date of temporary cessation of their operations, the lawyer’s offices and the law partnership companies must notify such in writing to the provincial/municipal Justice Services of the localities where they have registered their operations. The lawyer’s offices and the law partnership companies may temporarily cease their operations as from they date they receive the written approval of the provincial/municipal Justice Services. Within 7 days as from the date of getting the written approval of the temporary cessation of their operations, the lawyer’s offices and the law partnership companies must notify such to the Bar Associations and Tax Departments of the localities where they have registered their operation. The duration of temporary cessation of operation shall not exceed two years.
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a) The name of the lawyer’s office or the law partnership company;
b) The serial number, the date of issuance of the operation registration paper;
c) The head-office address;
d) The temporary cessation duration, the starting date and the ending date of the duration of temporary cessation;
e) The reasons for temporary cessation of operation;
f) The report on debt settlement, the settlement of legal service contracts signed with clients and labor contracts signed with lawyers and personnel of the lawyer’s office or the law partnership company.
2. Before temporarily ceasing their operations, the lawyer’s offices and the law partnership companies must fully pay their outstanding debts, pay all the due debts and reach agreement with the lawyers and personnel of the lawyer’s offices or the law partnership companies on matters related to the labor contracts signed with them.
For the legal service contracts which have been signed by the lawyer’s offices or the law partnership companies with their clients but not yet completed, they must reach agreement with the clients on the performance of such legal service contracts; if getting the consents of the clients, they shall hand over such legal service contracts to other lawyer’s offices or law partnership companies.
3. Where the lawyer’s offices or law partnership companies temporarily cease their operations, their branches must naturally temporarily cease operation.
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Article 18.- Termination of operation of lawyer’s offices, law partnership companies
1. The lawyer’s offices and law partnership companies terminate their operations in cases prescribed at Clause 1, Article 26 of the Ordinance on Lawyers.
2. In case of operation termination, within 30 days before the projected date of operation termination, the lawyer’s offices and the law partnership companies must notify it in writing to the provincial/municipal Justice Services and the Bar Associations of the localities where they have registered their operations; must publish the operation termination on central or local dailies or law newspapers for three consecutive issues.
Prior to the time of operation termination, the lawyer’s offices and the law partnership companies must fully pay their outstanding debts; completely settle all other debt amounts; complete the procedures for termination of the labor contracts already signed with their lawyers and personnel; complete all legal service contracts already signed with clients. Where they are unable to fulfill the legal service contracts signed with clients, they must reach agreement with the clients on the performance of such legal service contracts; if so consented by the clients, they may transfer the legal service contracts to other lawyer’s offices or law partnership companies.
3. In cases where they withdraw the operation registration papers of lawyer’s offices or law partnership companies according to the provisions in Clause 1, Article 16 of this Decree, the provincial/municipal Justice Services shall, within 7 days as from the date of withdrawing the operation registration papers, have to notify such to the Bar Associations and Tax Departments of the localities where the lawyer�s offices or the law partnership companies have registered their operations. Within 30 days as from the date of withdrawal of their operation registration papers, the lawyer�s offices or the law partnership companies must publish the termination of their operations on central or local dailies or law newspapers for three consecutive issues.
Within 60 days as from the date of withdrawal of their operation registration papers, the lawyer’s offices and the law partnership companies must fully pay their outstanding debts, completely settle other debt amounts, complete the procedures for termination of the labor contracts already signed with their lawyers and personnel, and fulfill all the legal service contracts already signed with their clients. Where they are unable to fulfill the legal service contracts signed with the clients, they must reach agreement with the clients on the performance of the such legal service contracts; if so consented by the clients, they may transfer the legal service contracts to other lawyer’s offices or law partnership companies.
Branches of lawyer’s offices and branches of law partnership companies shall terminate their operations in the following cases:
1. The lawyer’s offices and the law partnership companies, which have set up their branches, have terminated their operations under the provisions of Article 18 of this Decree.
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3. Their operation registration papers have been revoked under the provisions in Clause 2, Article 16 and Article 17 of this Decree.
The lawyer’s offices and the law partnership companies shall have to settle all matters related to the termination of operations of the branches they have set up.
Article 20.- Opening profession- practicing establishments overseas
1. The lawyer’s offices and the law partnership companies, which fully meet the following conditions, may set up profession-practicing establishments overseas:
a) They have been set up for three years or more;
b) They have operated efficiently in the two latest years before the projected date of setting up the profession-practicing establishments overseas;
c) They have not been administratively sanctioned in the three latest years before the projected date of setting up the profession-practicing establishments overseas.
2. Those lawyer’s offices and law partnership companies wishing to set up their profession-practicing establishments overseas must send their written requests to the Ministry of Justice, which shall be enclosed with the following papers:
a) Copy of the operation registration paper of the lawyer’s office or the law partnership company;
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Within 30 days as from the date of receiving the written requests, the Ministry of Justice shall issue the written approval of the establishment of the overseas profession-practicing establishments of the lawyer’s offices or the law partnership companies; in case of refusal, it must notify the requesters in writing of the reasons therefor. The persons getting the refusal may lodge their complaints according to the provisions in Clause 1, Article 41 of the Ordinance on Lawyers.
Within 15 days after getting permission from the competent bodies for the establishment of their overseas profession-practicing establishments, the lawyer’s offices or the law partnership companies must notify it in writing to the Ministry of Justice, the provincial/municipal Justice Services, Tax Departments and Bar Associations of the localities where they are headquartered.
The foreign-based profession-practicing establishments of lawyer’s offices or law partnership companies must abide by the laws of the countries where they are based, operate within the scopes inscribed in the operation registration papers of the lawyer’s offices or the law partnership companies in Vietnam and permitted by the competent bodies of the foreign countries.
3. Upon the termination of operation of their foreign-based profession-practicing establishments, within 7 days after the operation termination, the lawyer’s offices or the law partnership companies must notify such in writing to the Ministry of Justice, the provincial/municipal Justice Services, Tax Departments and Bar Associations of the localities where they are headquartered.
Article 21.- Sending lawyers for performance of legal services overseas
Lawyer’s offices and law partnership companies may send their lawyers abroad to provide legal services at clients’ requests. Lawyers’ travel abroad must comply with the law provisions on exit and entry.
The lawyers who provide legal services overseas must abide by the provisions of the Ordinance on Lawyers, this Decree and other relevant law provisions. The remuneration amounts paid by clients to lawyers who provide legal services overseas shall comply with the legal service contracts agreed upon between the clients and the lawyer’s offices or law partnership companies. The remuneration paid to lawyers providing legal services overseas must be reflected in accounting books, vouchers of the lawyer’s offices or the law partnership companies strictly according to the current finance-accounting regimes of Vietnam.
Article 22.- Consolidation of lawyer’s offices, merger of law partnership companies
1. Two or several lawyer’s offices may agree to consolidate themselves into a new lawyer’s office.
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a) The lawyer’s offices prepare a contract for consolidation and a contract for setting up a new lawyer’s office.
The merger contract must prescribe the consolidating procedures and conditions; the employment plan; the time limit, procedures and conditions for asset conversion; the time limit for effecting the consolidation. The consolidation contract must be sent to all creditors and notified to the laborers within 15 days as from the date it is adopted.
The contract for setting up a new lawyer’s office must be signed by all members of the new lawyer’s office and contain the details of the contract on setting up the lawyer’s office as prescribed in Article 9 of this Decree.
b) The procedures for operation registration, publicization on newspapers of the establishment of the new lawyer’s office shall comply with the provisions in Articles 20 and 21 of the Ordinance on Lawyers and Article 10 of this Decree. In addition to the papers prescribed at Clause 1, Article 20 of the Ordinance on Lawyers, the operation registration dossiers of the new lawyer’s office must include the merger contract.
After the new lawyer’s office is granted the operation registration paper, the old lawyer’s offices shall terminate their existence, the new lawyer’s office shall enjoy all legitimate rights and interests and be responsible for the unpaid debt amounts, underway legal service contracts, the labor contracts already signed with lawyers and employees as well as other property obligations of the old lawyer’s offices.
2. Two or several law partnership companies may agree on their consolidation into a new law partnership company. The procedures for consolidation of law partnership companies shall comply with the provisions in Clause 1 of this Article.
Article 23.- Merger of lawyer’s offices, law partnership companies
Two or several lawyer’s offices or law partnership companies may merge into another lawyer’s office or another law partnership company.
The procedures for merger of lawyer’s offices or law partnership companies are prescribed as follows:
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2. The merging lawyer’s offices or law partnership companies shall not have to register their operation but only carry out the procedures for changes of the contents of their operation registration papers according to the provisions in Clause 3, Article 20 of the Ordinance on Lawyers and Article 12 of this Decree. The change registration dossiers must include the merger contract.
The merging lawyer’s offices and law partnership companies are entitled to the legitimate rights and interests and responsible for the unpaid debt amounts, the unfulfilled legal service contracts, the labor contracts signed with the lawyers and personnel as well as other property obligations of the merged lawyer’s offices or law partnership companies.
Article 24.- Lawyers working under contracts for lawyer’s offices, law partnership companies
1. Lawyers working under contracts for lawyer’s offices or law partnership companies carry out their professional activities according to the assignment of the lawyer’s offices or the law partnership companies. The lawyer’s offices and the law partnership companies must be responsible for the professional activities of the contractual lawyers. The specific rights and obligations of the contractual lawyers as well as the lawyer’s offices and the law partnership companies are agreed upon in the labor contracts in accordance with the Ordinance on Lawyers, this Decree and the labor legislation.
2. Within 15 days as from the date of signing the labor contracts with the lawyers, the lawyer’s offices and the law partnership companies must notify such to the provincial/municipal Justice Services of the localities where they have registered their operation and to the Bar Associations of which the lawyers are members.
Article 25.- Stipulations on remuneration for criminal cases
The remuneration levels for criminal cases shall be agreed upon between the clients and the lawyer’s offices in the legal service contracts based on the grounds specified in Clause 1, Article 28 of the Ordinance on Lawyers and calculated in hours or in package according to cases, but the highest level in hours must not exceed VND 50,000/working hour for a lawyer.
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1. For cases with lawyers requested by the agencies conducting the legal proceedings, the remuneration level paid for lawyers shall be VND 70,000/working day.
2. Lawyers participating in the legal proceedings at the request of the agencies conducting the legal proceedings shall be paid the working travel allowance like officials and public employees on working missions.
3. The agencies conducting the legal proceedings, which have requested lawyers to participate in the legal proceedings, shall have to pay strictly according to the State’s regulations the remuneration and expenses mentioned in Clauses 1 and 2 of this Article. The payment fund shall be included in the annual budget estimates of the agencies conducting the legal proceedings.
4. Apart from the remuneration and expenses paid by the agencies conducting the legal proceedings, the lawyers must not ask for any other sums from the defendants, the accused or their relatives.
5. The Ministry of Finance shall coordinate with the Ministry of Justice in guiding the agencies conducting the legal proceedings to implement the provisions in Clauses 1, 2 and 3 of this Article.
Article 27.- Adjustment of remuneration levels
Upon the market price fluctuation of 10% or higher, the Ministry of Justice shall work together with the Ministry of Finance in submitting to the Prime Minister for decision the adjustment of the remuneration levels prescribed in Articles 25 and 26 of this Decree.
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1. Basing themselves on the provisions of the Ordinance on Lawyers, this Decree and other law provisions on socio-professional organizations, the Bar Associations shall issue their own charters to regulate their internal relations.
2. The charter of a Bar Association shall include the following major contents:
a) The Bar Association’s guiding principles and aims;
b) The procedures for joining the Bar Association; the procedures to apply for exit from the Bar Association;
c) The regulation on lawyer’s profession probation;
d) The rights and obligation of members of the Bar Association;
e) The organization and operation principles as well as the tasks and powers of the plenary meeting of the Bar Association;
f) The organization, operation principles as well as tasks and powers of the Executive Board of the Bar Association;
g) The organization, operation principles as well as tasks and powers of the Commendation and Discipline Council;
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i) The membership fee;
j) The Association’s finance;
k) Settlement of complaints and denunciations within the Association;
l) Relations with lawyer’s profession- practicing organizations;
m) Relations with other agencies and organizations.
3. Within 7 days as from the date the Bar Association’s Charter is adopted, the Executive Board of the Bar Association shall forward the Charter to the Ministry of Justice. Within 30 days after receiving the Bar Association’s Charter, the Ministry of Justice shall approve it. The Bar Association’s Charter shall take effect as from the date it is approved by the Ministry of Justice. Within 10 days as from the date the Bar Association’s Charter takes effect, the Executive Board of the Bar Association shall send a copy of the Charter to the provincial/municipal Justice Service.
Article 29.- The Bar Association’s membership
1. The Bar Association’s members shall be lawyers. The probationary lawyers are not yet the full-fledged members of the Bar Association but have the rights and obligations like members of the Bar Association, except the rights to elect people and to be elected to the Executive Board, to the Commendation and Discipline Council and the right to vote on affairs of the Bar Association.
2. The Bar Association’s members have the following rights:
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b) To discuss and vote on affairs of the Bar Association, to propose to the plenary meeting and/or the Executive Board of the Bar Association matters related to the organization and operation of the Association;
c) To be professionally fostered by the Bar Association;
d) Other rights prescribed by the Charter of the Bar Association.
3. The Bar Association’s members have the following obligations:
a) To report to the Executive Board of the Bar Association on the setting up of profession- practicing organizations or their places of contractual work and professional activities;
b) To participate in all courses on legal updates and professional fostering, organized by the Bar Association or the Ministry of Justice;
c) To pay membership fee;
d) Other obligations prescribed by the Bar Association’s Charter.
4. Members of the Bar Association shall be granted by its Executive Board the lawyer’s cards made according to set form issued by the Ministry of Justice.
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1. The Lawyers’ Plenary Meeting is the supreme body of a Bar Association, which is convened regularly at least once a year or can be convened extraordinarily at the request of the Executive Board or at least of half of the number of the lawyers of the Association.
The Lawyers’ Plenary Meeting shall be considered valid if it is participated by at least two-thirds of the members of the Bar Association.
In cases where a Bar Association has 100 or more members, it may organize the congress of lawyers delegates as provided for by the Bar Association’s Charter. The delegates congress has the tasks and powers of the Lawyers Plenary Meeting.
2. The Lawyers Plenary Meeting has the following tasks and powers:
a) To elect and dismiss the Executive Board, the manager as well as the Commendation and Discipline Council of the Bar Association;
b) To adopt the Charter and the Rule on lawyers professional ethics;
c) To adopt the membership fee levels, other contributions of the lawyers as well as the financial revenue and expenditure regime;
d) Other tasks and powers prescribed by the Bar Association’s Charter.
A resolution of the Lawyers Plenary Meeting is passed when it is voted for by more than half of the number of the Association’s members.
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1. The Bar Association’s Executive Board is the executive body of the lawyers plenary meeting, which is elected by the lawyers plenary meeting for a three-year term.
The list of members of the Bar Association’s Executive Board shall be forwarded to the Ministry of Justice and the provincial/municipal Justice Service.
The Bar Association’s Executive Board is composed of the manager, the deputy-manager(s) and possibly a number of members. The numbers of deputy-managers and members of the Bar Association shall be decided by the Lawyers Plenary Meeting based on the Bar Association’s Charter.
A decision of the Executive Board of a Bar Association shall be passed when it is voted for by more than half of the members of the Executive Board.
2. The Bar Association’s Executive Board has the following tasks and powers:
a) To decide the approval or refusal of the application for membership of the Bar Association; to approve the application for exit from the Bar Association;
b) To supervise and evaluate the results of probation of the probationary lawyers and propose the Ministry of Justice to grant them the lawyer’s profession-practicing certificates;
c) To supervise the observance of the Rule on the lawyers professional ethics;
d) To propose the Ministry of Justice to withdraw the lawyer’s profession-practicing certificates in cases where the lawyers are handled with the disciplinary form of crossing their names from the lawyers lists;
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f) To reconcile disputes related to the lawyer’s profession practice between lawyers, probationary lawyers and lawyer’s offices and/or law partnership companies; among lawyer’s offices or law partnership companies; between clients and lawyer’s offices or law partnership companies;
g) To organize work reviews, experience exchanges and/or professional fostering and apply other measures, aiming to raise the professional levels of lawyers;
h) To organize gathering of opinions and sum up comments and proposals of lawyers on the elaboration of State policies and laws;
i) To organize the lawyers participation in law popularization and education;
j) To conduct international cooperation on lawyers;
k) To report to the Ministry of Justice, the provincial/municipal justice Service on the Bar Association’s organization and operation as well as the list of the Association’s members biannually and annually;
l) Other tasks and powers prescribed by the Bar Association’s Charter.
3. The Bar Association’s Executive Board has the responsibility to send to the Ministry of Justice, the concerned provincial/municipal Justice Service the regulations, decisions and resolutions of the Association.
Article 32.- Commendation and Discipline Council
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2. The Commendation and Discipline Council decides on forms of the Bar Association’s commendation for lawyers and probationary lawyers and reports to the Lawyers Plenary Meeting for decision on the proposals on forms of the State commendation for lawyers, the Bar Association, lawyer’s offices and/or law partnership companies.
3. The Commendation and Discipline Council shall consider and decide on the application of a number of the following disciplinary forms to lawyers, probationary lawyers:
a) Reprimand;
b) Warning;
c) Crossing names from the Bar Association’s lists of lawyers, probationary lawyers.
4. The Commendation and Discipline Council shall work on the principle of collectivity and make decisions by majority.
STATE MANAGEMENT OVER LAWYERS’ ORGANIZATIONS AND LAWYER�S PROFESSION PRACTICE
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1. To elaborate and submit to the Government for decision the strategies and policies on development of the lawyer’s profession.
2. To draft and submit to the competent State bodies for promulgation or to promulgate by itself legal documents on lawyers organizations and the lawyer’s profession practice; to guide the implementation of those legal documents.
3. To organize training in the lawyer’s profession; provide professional fostering for lawyers.
4. To grant the lawyer’s profession-practicing certificates; to withdraw lawyer’s profession-practicing certificates.
5. To approve the Bar Associations Charters.
6. To promulgate the Model Rule on lawyers’ professional ethics.
7. To publish year books, bulletins on lawyers organizations and lawyer’s profession practice and apply other measures to support the development of the lawyer’s profession.
8. To organize work reviews and make periodical reports to the Government on the situation of the lawyers organizations and lawyer’s profession practice.
9. To examine, inspect and settle complaints and denunciations about lawyers organizations and lawyer’s profession practice according to competence.
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11. To suspend the implementation and request the amendment of the Bar Associations regulations, decisions and resolutions contrary to the Ordinance on Lawyers, this Decree and other law provisions.
1. The People’s Committees of the provinces and centrally-run cities shall exercise the State management over the lawyers organizations and lawyer’s profession practice in their respective localities, having the following tasks and powers:
a) To permit the establishment of Bar Associations; to decide on the dissolution of Bar Associations;
b) To examine, inspect and settle complaints and denunciations on organization and operation of the Bar Associations, lawyer’s offices and law partnership companies according to competence;
c) To periodically report to the Ministry of Justice on the situation of lawyers organizations and lawyer’s profession practice;
d) Other tasks and powers prescribed by law.
2. The provincial/municipal Justice Services shall have to assist the People’s Committees of the provinces or centrally run cities in implementing the State management contents prescribed in Clause 1 of this Article and have the following tasks and powers:
a) To grant operation registration papers to lawyer’s offices and branches thereof, law partnership companies and branches thereof; to withdraw the operation registration papers of lawyer’s offices, law partnership companies, branches of lawyer’s offices and branches of law partnership companies in cases prescribed at Article 16 of this Decree;
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c) To request lawyer’s offices and law partnership companies to report on their operation situation when necessary.
Individuals and organizations that are not qualified under the provisions of the Ordinance on Lawyers and this Decree but practice the lawyer’s profession in any form shall be forced to stop their violation acts, subject to a fine of up to VND 50,000,000. All profits earned from the illegal practice of the lawyer’s profession shall be confiscated for the State’s public fund.
Article 36.- Handling of violations committed by lawyers
Those lawyers who commit the following violation acts shall, depending on the nature, seriousness of their violations, be disciplined according to the Bar Associations Charters, administratively sanctioned in form of warning or fine under the law provisions on handling of administrative violations:
1. Practicing the profession not in forms of profession-practicing organization prescribed in the Ordinance on Lawyers and this Decree.
2. Letting other persons use their lawyer’s profession- practicing certificates.
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In cases where serious consequences are brought about by the violations or recidivism is committed, apart from the punitive form of warning or fine, the form of withdrawing the lawyer’s profession- practicing certificate may also apply.
Lawyer’s offices, law partnership companies, branches of lawyer’s offices or branches of law partnership companies, that commit the following violation acts, shall, depending on the nature and seriousness of their violations, be administratively sanctioned in form of warning or fine according to the law provisions on handling of administrative violations:
1. Operating beyond the professional practice domains inscribed in their operation registration papers.
2. Letting other persons who are not lawyers practice the profession in the name of their lawyer’s offices or law partnership companies.
3. Changing the contents of their operation registration papers without notifying such to the provincial/municipal Justice Services.
4. Temporarily ceasing or terminating their operation without complying with the provisions of this Decree on temporary cessation or termination of operation.
5. Violating the provisions of the Ordinance on Lawyers or this Decree on remuneration.
6. Failing to abide by the reporting regime.
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8. Violating other provisions of the Ordinance on Lawyers and this Decree.
Where serious consequences are brought about by the violations or recidivism is committed, apart from the punitive form of warning or fine, the withdrawal of operation registration certificates may also apply.
Article 38.- Handling of acts of infringing upon the lawyers rights.
Those who hold influential positions and powers but commit acts of infringing upon or obstructing lawyers or lawyers organizations from exercising their rights and performing their obligations shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability; if damage is caused, the compensation therefor must be made according to the provisions of law.
Article 39.- Competence and procedures for handling of administrative violations
The competence and procedures for handling of administrative violations regarding acts prescribed in Articles 35, 36 and 37 of this Decree shall comply with the law provisions on handling of administrative violations.
Article 40.- The provisions on transition for Bar Associations
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During the period from October 1, 2001 to the time the Bar Associations have completed the conversion under the provisions of the 2001 Ordinance on Lawyers, the Bar Associations shall still organize the professional practice for their lawyers and probationary lawyers.
After the Bar Associations conversion under the provisions of the 2001 Ordinance on Lawyers, the branches of such Bar Associations shall naturally terminate their operations.
Article 41.- The provisions on transition for lawyers and probationary lawyers.
1. Persons recognized as lawyers under the provisions of the 1987 Ordinance on Lawyers Organizations before October 1, 2001 shall be granted the lawyer’s profession practicing certificates to practice the lawyer’s profession according to the 2001 Ordinance on Lawyers.
2. Subjects defined in Clause 1 of this Article, who are State officials and employees, shall be granted the lawyer’s profession-practicing certificates for the practice of the lawyer’s profession till the end of September 30, 2004.
3. Persons who are probationary lawyers by the time the Ordinance on Lawyers takes effect may continue their lawyer’s profession probation according to the provisions of the Ordinance on Lawyers; the period of their finished probation shall be counted into their probation duration as provided for by the Ordinance on Lawyers.
Persons who have had a period of lawyer’s profession probation at foreign lawyers organizations branches in Vietnam prior to the time the Ordinance on Lawyers takes effect, the duration of their finished probation at the Vietnam-based branches of foreign lawyers organizations shall be counted into their probation duration as provided for by the Ordinance on Lawyers.
4. Persons who are being lawyers or probationary lawyers of the Bar Associations under the provisions of the 1987 Ordinance on Lawyers Organizations shall naturally become the lawyers or probationary lawyers of such Bar Associations after the Associations have been converted under the provisions of the 2001 Ordinance on Lawyers.
For persons who reside in a locality but work as lawyers or probationary lawyers of a Bar Association of another locality, if wishing to be transferred to the Bar Association of the locality where they reside, they may be transferred to such Bar Association. The Executive Board of the Bar Association of the locality where they reside shall have to receive them.
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Lawyers operating in the fields of legal proceedings, legal consultancy, legal services in the form of limited liability company or other forms must all shift to practice their profession in form of the lawyer’s office or law partnership company as prescribed in the Ordinance on Lawyers and this Decree.
Article 43.- Implementation effect
This Decree takes effect 15 days after its signing.
The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People’s Committees of the provinces and centrally-run cities shall, within the scope of their respective functions, tasks and powers, have to implement this Decree.
The Minister of Justice shall have to guide the implementation of this Decree.
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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Decree of Government No. 94/2001/ND-CP, detailing the implementation of the Ordinance on lawyers
- Số hiệu: 94/2001/ND-CP
- Loại văn bản: Nghị định
- Ngày ban hành: 12/12/2001
- Nơi ban hành: Chính phủ
- Người ký: Phan Văn Khải
- Ngày công báo: Đang cập nhật
- Số công báo: Đang cập nhật
- Ngày hiệu lực: 27/12/2001
- Tình trạng hiệu lực: Ngưng hiệu lực