Circular No. 02/2002/TT-BTP guiding certain provisions of Decree No. 94/2001/NĐ-CP dated December 12, 2001 of the Government detailing the implementation of the Lawyer Law Ordinance.

CIRCULAR

Guidelines for certain provisions of Decree No. 94/2001/NĐ-CP dated December 12, 2001 of the Government detailing the implementation of the Lawyer Law Ordinance

of the Government detailing the implementation of the Lawyer Law Ordinance

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

Pursuant to Decree No. 94/2001/NĐ-CP dated December 12, 2001 of the Government detailing the implementation of the Lawyer Law Ordinance (hereinafter referred to as the Decree);

The Ministry of Justice provides guidance on implementing certain provisions of the Decree as follows:

1. On vocational training for lawyers

1.1 The vocational training program for lawyers includes the following contents:

a) Laws on practicing as a lawyer;

b) Advocacy skills;

c) Legal advisory skills;

d) Conduct rules and professional ethics of lawyers.

The standard vocational training program for lawyers shall be issued by the Ministry of Justice.

1.2 Vocational training for lawyers shall be conducted through centralized training according to planning, plans, and the standard vocational training program for lawyers issued by the Ministry of Justice.

The School of Judicial Positions of the Ministry of Justice has the responsibility to implement vocational training for lawyers in Vietnam. Professional organizations of lawyers may participate in vocational training for lawyers if they meet the conditions approved by the Ministry of Justice.

1.3 The Department of Lawyer Management and Legal Consultation shall take the lead in coordinating with the School of Judicial Positions to develop and submit to the Minister for decision the long-term and annual planning and programs for vocational training for lawyers.

1.4 Upon completion of the vocational training course for lawyers, the vocational training institution shall issue a Graduation Certificate for Vocational Training for Lawyers to the graduate according to the model prescribed by the Ministry of Justice.

1.5 A graduation certificate from vocational training for lawyers abroad will be recognized in Vietnam if the overseas vocational training course for lawyers includes the contents stipulated in Point 1.1 of this Circular and lasts at least six months.

When a person applying to join the Bar Association has a graduation certificate from vocational training for lawyers abroad, the Board of Directors of the Bar Association shall submit a request to the Ministry of Justice for recognition of that certificate. The request must be accompanied by a copy of the graduation certificate from vocational training for lawyers abroad and documents proving the content and duration of the training. Within ten days from the date of receipt of the request from the Bar Association, the Department of Lawyer Management and Legal Consultation of the Ministry of Justice shall issue a response regarding the recognition of the graduation certificate from vocational training for lawyers abroad.

2. On the regulations for the final assessment of probationary practice for lawyers

2.1 The content of the final assessment of probationary practice for lawyers includes:

a) Legal advisory skills;

b) Advocacy skills;

c) Conduct rules and professional ethics of lawyers.

2.2 The forms of the final assessment of probationary practice for lawyers include:

a) Written examination;

b) Practical examination.

2.3 The organization of the final assessment of probationary practice for lawyers shall be conducted quarterly once.

By the fifteenth day of the last month of each quarter, the Board of Directors of the Bar Association shall prepare a list of probationary lawyers who have completed their probationary period for the next quarter and send it to the Ministry of Justice.

Based on the number of probationary lawyers proposed by the Bar Associations, the Ministry of Justice shall decide to organize the final assessment of probationary practice by region and notify the list of probationary lawyers eligible to participate in the assessment, the time, and place of the assessment to the Bar Associations in the region.

Probationary lawyers from Bar Associations outside the assessment region, who have completed their probationary period, may also participate in the assessment if they express a desire and are recommended by their Bar Association.

2.4 The Assessment Council shall be established by the Minister's decision. The composition of the Assessment Council includes:

a) A representative of the Ministry of Justice as Chairman of the Assessment Council;

b) Lawyers with professional qualifications and reputation designated by the Ministry of Justice based on recommendations from Bar Associations in the region;

c) A representative of the Provincial Department of Justice where the assessment is organized, who is a legal expert familiar with the profession of lawyer;

d) A representative of the Bar Association from one of the regions in the area, who is a legal expert familiar with the profession of lawyer;

e) A representative of the School of Judicial Positions.

The Secretariat assisting the Assessment Council shall be determined by the Chairman of the Assessment Council.

2.5 The Assessment Council shall have the following duties and powers:

a) To guide the rules and procedures for the assessment;

b) To guide the content of the assessment and reference materials;

c) To organize and conduct the assessment and score the assessment;

d) To announce the scores and inform the results of the assessment to the Bar Associations with probationary lawyers participating in the assessment.

2.6 The Chairman of the Assessment Council shall oversee the assessment, select and seal the examination papers, assign members of the Council to conduct the assessment and score.

2.7 Scores for written and practical examinations are calculated on a scale of 10 points. A probationary lawyer must achieve a score of five points or higher in each examination to pass the final assessment of probationary practice.

Within fifteen days from the date of announcing the assessment results, a probationary lawyer may appeal against the assessment results. The Chairman of the Assessment Council shall resolve appeals against the assessment results within ten days from the date of receiving the appeal and respond in writing to the appellant. If dissatisfied with the decision resolving the appeal made by the Chairman of the Assessment Council, the appellant may appeal further to the Minister of Justice. The Minister's decision on resolving the appeal is final.

3. On the use of the Lawyer Practice Certificate and Lawyer Card

3.1 The Lawyer Practice Certificate is a state-issued certificate confirming the right to practice as a lawyer for the holder of the Certificate. Only a full member of the Bar Association may use the Lawyer Practice Certificate to practice as a lawyer. The number of the Lawyer Practice Certificate is recorded on the Lawyer Card.

3.2 A holder of a Lawyer Practice Certificate shall not use the Certificate to practice as a lawyer in the following cases:

a) Being under criminal investigation or having been convicted but not yet rehabilitated;

b) Under administrative supervision;

c) Losing or being restricted in civil capacity;

d) No longer being a member of the Bar Association due to being elected or recruited as a civil servant, resigning from the Bar Association, or being removed from the list of lawyers of the Bar Association.

3.3 The lawyer card is a certificate of membership status in the Bar Association for the person who receives the card. The lawyer card is issued to regular members of the Bar Association for use when practicing. Trainee lawyers are issued trainee lawyer cards.

Lawyer cards and trainee lawyer cards are uniformly issued by the Ministry of Justice.

Procedures for issuing and using lawyer cards and trainee lawyer cards are stipulated in the Charter of the Bar Association.

3.4 When providing legal services at the request of clients, lawyers must have an introduction letter from the law practice organization. In cases where individuals or organizations request, lawyers must present their lawyer cards.

4. On the organization of law practice

4.1 In the process of registering activities for law firms, partnership law firms, branch offices of law firms, and branch offices of partnership law firms, the Department of Justice shall be responsible for:

a) Receiving and examining the registration dossier of law firms, partnership law firms, branch offices of law firms, and branch offices of partnership law firms. Upon receiving the registration dossier, the Department of Justice shall issue a receipt to the applicant.

b) Recording in the Register of Activities and issuing the Registration Certificate for law firms, partnership law firms, branch offices of law firms, and branch offices of partnership law firms.

The Registration Certificate shall be numbered as follows:

The first two digits are the province code (Annex 1 issued together with this Circular); the next two digits are the code of the type of law practice organization (Annex 2 issued together with this Circular); the following four digits are the registration number of the law practice organization, including branches;

c) Receiving notifications from law firms and partnership law firms regarding changes to the contents of the Registration Certificate, establishment of branches, suspension of operations, and termination of operations of the firm, branch. Upon receiving the notification, the Department of Justice shall record the content of the notification in the Register of Activities and the Registration Certificate of the law firm, partnership law firm, branch office of the law firm, and branch office of the partnership law firm.

d) Providing information on the registered activities of law firms, partnership law firms, branch offices of law firms, and branch offices of partnership law firms within the local area to individuals and organizations upon request in accordance with the law.

đ) Preserving and storing registration files and documents.

e) Inspecting the activities of law firms, partnership law firms, branch offices of law firms, and branch offices of partnership law firms according to the contents recorded in the Registration Certificate. To conduct inspections, the Department of Justice shall notify the firm, partnership, and branch seven days in advance, except in cases of surprise inspections decided by the Director of the Department of Justice.

g) Advising the Provincial People's Committee, the Ministry of Justice, and other competent authorities on measures to resolve difficulties and support law firms and partnership law firms in their operations.

4.2 Naming of law practice organizations must comply with Clause 3 of Article 18 and Clause 3 of Article 19 of the Lawyer Ordinance. Law practice organizations may have trade names. Law practice organizations may have symbols, but they may not use the National Flag, Party Flag, State Emblem, images of leaders, images of Vietnamese currency, or scales of justice as symbols. The name, trade name, and symbol of a law practice organization may not be identical to those of another law practice organization that has been registered for operation previously throughout the country.

4.3 The form of legal service contracts must comply with the provisions of Article 25 of the Lawyer Ordinance and Article 14 of the Decree. Contracts concluded through telegrams, telex, fax, email, and other forms of electronic communication are also considered written contracts.

4.4 The ceiling fee for criminal cases is applied in accordance with the provisions of Article 25 of the Decree. In cases where lawyers defend suspects, defendants, or protect victims or other parties involved in criminal cases who are foreigners, law firms may apply fees exceeding the ceiling if agreed by the client.

4.5 The time spent by lawyers to calculate fees as stipulated in Article 25 of the Decree is the actual time lawyers spend providing legal services committed to clients, including: consultation time, file review time, preparation time for documents and materials, evidence collection time, meeting time with suspects and defendants, court attendance time, and other reasonable actual time accepted by the client.

4.6 Law practice organizations meeting the conditions specified in Clause 1 of Article 20 of the Decree may establish bases abroad. The establishment period specified in Point a of Clause 1 of Article 20 of the Decree is calculated from the date of issuance of the Registration Certificate; for law practice organizations required to convert in accordance with Clause 2 of Article 43 of the Lawyer Ordinance and Article 42 of the Decree, this period is calculated from the date of establishment before conversion.

5. On the organization of lawyer professional associations

5.1 Based on Clause 2 of Article 28 of the Decree, the Charter of the Bar Association provides detailed regulations related to the organization and activities of lawyers.

5.2 The Bar Association may cooperate with foreign lawyer organizations through various forms such as organizing seminars and roundtables to exchange professional experience; exchanging information on laws and other relevant information to the profession; cooperating in professional training for lawyers; and other forms of cooperation to support each other in managing and practicing law.

International cooperation activities involving lawyers must comply with the provisions of Government Decree No. 103/1998/NĐ-CP dated December 26, 1998, on the management of international cooperation in judicial and legal matters.

6. Reporting System

6.1 The Law Office, Joint Stock Law Firm shall report to the Department of Justice and the Bar Association of the locality where their headquarters are located on the organizational and operational situation of the Law Office, Joint Stock Law Firm. The six-month report (from October 1 of the previous year to March 31 of the following year) shall be submitted before May 1, and the subsequent six-month report (from April 1 to September 30) shall be submitted before November 1.

6.2 The Board of Directors of the Bar Association shall report to the Ministry of Justice and the Department of Justice on the organization and operation of the Bar Association and the list of lawyers in the association. The six-month report (from October 1 of the previous year to March 31 of the following year) shall be submitted before May 10, and the subsequent six-month report (from April 1 to September 30) shall be submitted before November 10.

6.3 The Department of Justice shall report to the Ministry of Justice on the organizational situation of lawyers and the practice of law in the locality. The six-month report (from October 1 of the previous year to March 31 of the following year) shall be submitted before May 15, and the subsequent six-month report (from April 1 to September 30) shall be submitted before November 15.

6.4 In addition to reporting according to the provisions of Points 4.1, 4.2, and 4.3 of this Circular, the Department of Justice, the Bar Association, and the legal practice organizations shall report according to the requirements of the People's Committee of the province or centrally governed city or the Ministry of Justice.

7. Transitional Provisions

7.1 A person recognized as a lawyer under the Legal Officer Organization Ordinance in 1987 before October 1, 2001, shall be issued a Lawyer Practice Certificate to practice law according to the Legal Officer Ordinance in 2001. The Board of Directors of the Bar Association shall submit a request to the Ministry of Justice for issuance of a Lawyer Practice Certificate for those individuals. Attached to the request shall be a list of lawyers in the format TP-LS-5A; a copy of the Legal Officer Card certified by the Board of Directors of the Bar Association; two 4x6 cm color photographs. For lawyers who are currently being complained about, reported, or disciplined with temporary suspension from practicing, the Bar Association shall not request issuance of a Lawyer Practice Certificate until such complaints, reports, or disciplinary actions are resolved.

Within thirty days from the date of receipt of the application dossier from the Board of Directors of the Bar Association, the Ministry of Justice shall issue a Lawyer Practice Certificate to those individuals requested; in case of refusal, the reasons must be notified in writing to the Board of Directors of the Bar Association.

7.2 For those persons admitted to the Bar Association under the Legal Officer Organization Ordinance in 1987 who were trainee lawyers at the time the Legal Officer Ordinance in 2001 took effect, the training period shall be applied according to the Legal Officer Ordinance in 2001; the time already spent in training shall be counted towards the training period under the Legal Officer Ordinance in 2001.

The examination of completion of training for trainee lawyers whose training period expired before October 1, 2002, shall be conducted by the Department of Legal Officers and Legal Consultation in coordination with the Bar Associations and Departments of Justice.

7.3 After obtaining a Lawyer Practice Certificate, a lawyer residing in one locality but a member of a Bar Association in another locality may, if they wish, transfer to the Bar Association of the locality where they reside, regardless of whether the Bar Associations have converted according to the Legal Officer Ordinance. The Bar Association from which the lawyer transfers shall be responsible for introducing the lawyer to the receiving Bar Association, along with an introduction letter containing the original file of the lawyer. Within ten days from the date of receipt of the introduction letter accompanied by the lawyer’s file, the Board of Directors of the receiving Bar Association shall be responsible for accepting and registering the lawyer in the list of lawyers of the Bar Association.

A trainee lawyer residing in one locality but undergoing training in a Bar Association in another locality may also transfer to the Bar Association of the locality where they reside if they so wish. The procedure for transferring Bar Associations for trainee lawyers shall be applied similarly to that for regular lawyers. The Board of Directors of the receiving Bar Association shall be responsible for introducing the trainee lawyer to the legal practice organization to continue training. The time already spent in training at the previous Bar Association shall be counted continuously towards the training period at the new Bar Association.

7.4 A person recognized as a lawyer under the Legal Officer Organization Ordinance in 1987 who is currently a civil servant or public official shall also be issued a Lawyer Practice Certificate to continue practicing law until September 30, 2004. After this period, if those individuals continue to work as civil servants or public officials, they must leave the Bar Association and cease practicing law. Before ceasing practice, these individuals must resolve all cases they have undertaken; in cases where resolution is not possible, they must inform the client and hand over the case to the legal practice organization for the organization to negotiate with the client regarding the continuation of the case.

The Board of Directors of the Bar Association shall be responsible for drafting the Proposal for Conversion of the Bar Association according to Article 42, Clause 3 of the Legal Officer Ordinance and Article 40 of the Decree. The Department of Justice shall provide comments on the Proposal for Conversion and submit it to the Provincial People's Committee for approval. After the Proposal is approved, the Board of Directors of the Bar Association shall convene a General Meeting of Lawyers to approve the Charter, elect the Board of Directors, Director, Reward and Disciplinary Council of the Bar Association. After approving the Charter and electing the Board of Directors, Director, Reward and Disciplinary Council, the Bar Association shall begin operating according to the Legal Officer Ordinance in 2001.

For Bar Associations facing difficulties with office space and working facilities, based on Clause 1 and Clause 3 of Article 3 of the Decree, the Board of Directors of the Bar Association shall coordinate with the Department of Justice and local functional agencies to propose initial support from the Provincial People's Committee.

8. The following forms are attached to this Circular:

8.1 Regarding the Lawyer Practice Certificate:

a) Application for Issuance of Lawyer Practice Certificate (format TP-LS-1A);

b) Lawyer Curriculum Vitae (format TP-LS-1B);

c) List of Lawyers (format TP-LS-1C).

8.2 Regarding the Registration of Operations of Law Offices, Joint Stock Law Firms, Branches of Law Offices, Branches of Joint Stock Law Firms:

a) Application for Registration of Operations of a Law Office established by a lawyer (format TP-LS-2A);

b) Application for registration of activities of a Law Firm established by several lawyers (form TP-LS-2B);

c) Application for registration of activities of a Partnership Law Firm (form TP-LS-2C);

d) Application for registration of establishment of a Branch (form TP-LS-2D);

đ) Registration certificate for activities of a Law Firm established by a lawyer (form TP-LS-2Đ);

e) Registration certificate for activities of a Law Firm established by several lawyers (form TP-LS-2E);

g) Registration certificate for activities of a Partnership Law Firm (form TP-LS-2G);

h) Registration certificate for activities of a Branch of a Law Firm organization (form TP-LS-2H);

i) Register of activities of a Law Firm, a Partnership Law Firm (form TP-LS-2I);

k) Register of establishment of a Branch (form TP-LS-2K).

8.3 Regarding notification:

a) Notification of changes to the contents of the Registration Certificate for activities of a Law Firm, a Partnership Law Firm (form TP-LS-3A);

b) Notification of changes to the contents of the Registration Certificate for activities of a Branch of a Law Firm, a Branch of a Partnership Law Firm (form TP-LS-3B);

c) Notification of suspension of activities of a Law Firm, a Partnership Law Firm (form TP-LS-3C);

d) Notification of cessation of activities of a Law Firm, a Partnership Law Firm (form TP-LS-3D);

đ) Notification of cessation of activities of a Branch of a Law Firm, a Branch of a Partnership Law Firm (form TP-LS-3Đ).

8.4 Regarding reports:

a) Report on the organizational and operational situation of a Law Firm, a Partnership Law Firm (form TP-LS-4A);

b) Report on the organizational and operational situation of a Bar Association (form TP-LS-4B);

c) Report by the Department of Justice on the organizational and operational situation of a Law Firm, a Partnership Law Firm in the locality (form TP-LS-4C).

8.5 Regarding transfer

List of lawyers (form TP-LS-5A).

9. Effective Date

This Circular takes effect from the date of signature.

During implementation, if there are any difficulties, the Departments of Justice, the Boards of Directors of Bar Associations, and lawyers should report to the Ministry of Justice for timely resolution.