DONG Kun: Doctrinal Analysis of the Confidentiality Right of Defense Lawyers


Abstract: An analysis of the defense lawyer's right to confidentiality using the Hohfeldian rights analysis framework shows that the nature of the right to confidentiality is immunity, not privilege. The relationship between the right to confidentiality and the obligation to keep confidentiality is not a simple parallel symbiosis, but a derivative relationship. The client claims the right to request confidentiality from the lawyer and the lawyer assumes the obligation of confidentiality. The legal relationship of “client-lawyer” is formed first, and then the legal relationship of “lawyer-state agency "is derived. When state agencies conduct investigations and collect evidence, they have no power to change lawyers' confidentiality obligations towards their clients. Lawyers have immunity from reporting and testifying, that is, the right to confidentiality, The person with the right to truly decide whether case information is confidential is the client, not the defense lawyer, The theoretical origin of the right to confidentiality is that clients in criminal proceedings have constitutional rights such as not being forced to testify against themselves, obtaining help from lawyers, and being protected of their general personality rights. After making a doctrinal treatment of the nature and theoretical origins of the right to confidentiality, we should return to the context of the provisions of the Criminal Procedure Law and carry out a doctrinal explanation and system construction of the applicable prerequisites, constituent elements and exceptions of the right to confidentiality and provide suggestions to such issues as the conflict between lawyers' confidentiality and the fact that criminal suspect should answer questions truthfully, lawyers leaks and its potential criminal law accountability, and the lack of illegal evidence exclusion rues.

Key Words: Defense Lawyers: Confidentiality Rights: Confidentiality Obligations; Hohfeldian Framework of Right Analysis

Author: Dong Kun, a research fellow at CASS Institute of Law;

Source: 2 (2024) Peking University Law Journal.