CONFIDENTIALITY OF CLIENTS’ INFORMATION IN VIETNAM DURING LEGAL PRACTICE OF LAWYERS

1. Legal basis

• Law on lawyers 2006, amended in 2012
• Code of ethics and conduct of Vietnamese lawyers

2. Overview on confidentiality of clients’ information in Vietnam during legal practice of lawyers

2.1 Legal consultation

Legal consultation is where a lawyer  gives guidances, opinions, and helps clients draft documents related to the exercise of their rights and obligations under Article 28 of the Law on Lawyers; in other words, legal consultation is the act of “Expressing opinions on issues raised by customers on the basis of legal documents without having the right to decide", helping customers protect their legitimate rights and interests.

     Therefore, legal consultation is about interpreting the law, guiding legal conduct, and providing legal services to help domestic and international citizens and organizations exercise and protect  their legitimate rights and interests. 

     From a lawyer's perspective, legal consultation is: Providing a legal solution for a specific situation; Instruct customers to behave in accordance with the law.

2.2 Definition of Confidentiality

     Confidentiality of clients’ information can be defined as below: Keeping client information confidential in a lawyer's profession  is a lawyer's legal obligation and professional code of ethics, whereby the lawyer keeps confidential the information he or she knows about clients or relating to clients during resolving the case and does not disclose it to anyone other than the lawyer and the clients.

3. CONFIDENTIALITY OF CLIENTS’ INFORMATION IN VIETNAM DURING LEGAL PRACTICE OF LAWYERS

3.1 Information that must be keep confidential

Clause 1, Article 25 of the Law on Lawyers 2006 stipulates: "A lawyer must not disclose information about cases, matters, or clients that he or she knows during exercising profession,  unless the client agrees in written documents or law has other regulations”.

     Lawyers and clients need to reach an agreement to determine what information needs to be kept confidential. Due to that, scope of confidentiality shall be carried out in accordance with that agreement and does not bind the lawyer's confidentiality obligations regarding the information (apart from agreement). In case there is no such agreement, or the client does not agree to such an agreement, the lawyer is obliged to keep all information about the client confidential, regardless of the source the lawyer obtained the information from. Only then can the rights of clients be protected and enhance the lawyer's sense of responsibility for client information.

     In keeping client information confidential, lawyers need to pay attention to understanding the legal regulations on keeping confidential information related to their clients. For instance, clients are individuals, lawyers need to comply with regulations on privacy;clients are businessmen or economic organizations, lawyers need to comply with regulations on business secrets,...

3.2 Duration to keep customer information confidential

     Lawyers are responsible for keeping client information confidential while handling the case until the case has ended, with no time limit.

     Rule 7 of the Code of Ethics and Professional Conduct for Vietnamese Lawyers clearly stipulates: "Lawyers have the obligation to keep client information confidential when performing legal services and after the service has ended, unless otherwise agreed by the customer or as prescribed by law.”

     Thus, all the information the lawyer knows and collects during the process of resolving the case, if the client does not agree or according to the law, the lawyer is not allowed to disclose. Even if the client is alive or dead (for individuals), active or has ended (for organizations), the lawyer must still keep information about that client confidential.

3.3 Other exceptions

     In addition to the cases prescribed by law, the Law on Lawyers and the Code of Ethics and Professional Conduct for Vietnamese Lawyers still stipulate exceptions in keeping client information confidential.

     Clause 1, Article 25 of the Law on Lawyers 2006 stipulates: "A lawyer may not disclose information about cases, matters, or clients that he or she knows while practicing, unless the client agrees in written documents or by law." and in the Code of Ethics and Professional Conduct of Vietnamese Lawyers there is also a provision: "Lawyers are obliged to keep client information confidential when performing legal services and after when that service has ended, unless otherwise agreed by the customer or as prescribed by law."

     Accordingly, lawyers can disclose client information with the client's consent and that consent must be expressed in writing. Disclosure of information as prescribed by law is a case where the law stipulates an obligation to declare or provide information to serve the investigation and verification activities of competent authorities. In these cases, lawyers are required to disclose information to fulfill their civic obligations according to the law.

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For more information, please contact:

Hoang Pham (James) / Managing Partner at: hoang.pham@vselawyers.com

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Attention: This legal update is not an advice and should not be treated as such.