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Sunday, September 20, 2020

Scope of practice of foreign law firms remains unclear under new Decree

Updated: 16:46’ - 19/12/2013

Lawyer Vu Le Bang & Cao Tran Nghia
Ho Chi Minh City Bar

On October 14, 2013, the Government issued Decree No. 123/2013/ND-CP to guide certain provisions and measures for enforcement of the Law on Lawyers (Decree 123). Decree 123, which became effective on November 28, supersedes (i) Government Decree No. 28/2007/ND-CP dated February 26, 2007, detailing and guiding the implementation of a number of articles of the Law on Lawyers, (ii) Government Decree No. 131/2008/ND-CP dated December 31, 2008, guiding the implementation of a number of articles of the Law on Lawyers concerning lawyers’ socio-professional organizations, and (iii) a number of articles of Government Decree No. 05/2012/ND-CP dated February 2, 2012, amending some articles of the Decrees on security transaction registration, legal assistance, lawyers and legal consultancy.

Decree 123 is greatly expected by lawyers, legal experts, investors and other concerned people to shed light on the new amendments provided in Law No. 20/2012/QH13 on Lawyers dated November 20, 2012 (the Amended Law on Lawyers), with respect to the scope of practice of foreign lawyer practicing organizations in Vietnam.

Although the scope of practice for individual foreign lawyers is not further clarified in Decree 123, the scope of practice for foreign lawyer practicing organizations in Vietnam and Vietnamese lawyers working in such organizations is indeed guided in Article 31 of Decree 123 as follows:

1. The scope of practice for foreign lawyer practicing organizations in Vietnam must comply with Article 70 of the Law on Lawyers, in which foreign lawyer practicing organizations in Vietnam may not:

a/ certify photocopies and translations of documents issued by Vietnamese state agencies and Vietnamese organizations;

b/ perform procedures in adoption, marriage, civil status and Vietnamese citizenship;

c/ perform services of notary public, bailiff and other services which are only permissible for Vietnamese lawyer practicing organizations, Vietnamese notary practicing organizations and Vietnamese bailiff practicing organizations.

2. Vietnamese lawyers working in foreign lawyer practicing organizations in Vietnam may not perform the services as set forth in Clause 1 of this Article.

The scope of practice under Decree 123 appears to basically follow the scope set forth in Article 70 of the Amended Law on Lawyers, which in turn follows the commitments of Vietnam on market access for legal services upon her accession to WTO[1] (Vietnam’s WTO Commitments), which read as follows:

Branches of and foreign lawyer practicing organizations in Vietnam may provide legal consulting services and other services, but shall not have their foreign lawyers and Vietnamese lawyers to participate in legal proceedings in the capacity of representatives, defenders or protectors of rights and benefits of the main parties before the courts of Vietnam nor provide legal documentation and certification services related to the laws of Vietnam, [branches of and foreign lawyer practicing organizations] may have their Vietnamese lawyers to provide legal consultancy on the laws of Vietnam.

Consequently, Decree 123 does not really provide such a “brand-new” substantive guidance which is not available under either the Amended Law on Lawyers or Vietnam’s WTO Commitments and which is in an urgent need to be guided in a greater detail. Specifically, the on-going discussions and arguments as to the scope of practice of foreign lawyer practicing organizations mainly dwell on the contexts that (i) foreign lawyer practicing organizations are not permitted to provide legal documentation services related to the laws of Vietnam and (ii) what should be regarded as such a legal documentation for this purpose. Unfortunately, these fail to be clarified further under Decree 123. Therefore, Decree 123 appears not to provide satisfactory clarifications on the scope of practice of foreign lawyer practicing organizations as expected. Below is our discussion on certain issues related to such unclear scope of practice available to foreign lawyer practicing organizations for further consideration and improvement in the upcoming legal documents concerning the Law on Lawyers.       

Explanation of legal documentation and certification services

Article 31 of Decree 123 further clarifies the definition and scope of the ambiguous “legal documentation and certification services” under the Amended Law on Lawyers. However, this clarification is insufficient as the broad wording “and other services which are only permissible for Vietnamese lawyer practicing organizations, Vietnamese notary practicing organizations and Vietnamese bailiff practicing organizations” is still imported in Decree 123. Given that the Amended Law on Lawyers should be rooted from Vietnam’s WTO Commitments, it is advisable to compare the definition and scope of such services under the official classifications used in Vietnam’s WTO Commitments, i.e. the following CPC item:

CPC 86130 - Legal documentation and certification services: Preparation, drawing up and certification services of legal documents. The services generally comprise the provision of a number of related legal services including the provision of advice and the execution of various tasks necessary for the drawing up or certification of documents.  Included are the drawing up of wills, marriage contracts, commercial contracts, business charters, etc.[2]

This CPC 86130 definition in fact includes a lot more services than the details listed in Decree 123, which comprise more or less certification services. If the CPC 86130 definition is to be taken literally, foreign lawyer practicing organizations may not even engage in consulting and drafting commercial contracts, business charters, and several other implied business documentation. Such broad explanation may have caused a significant obstacle to the currently operating and to-be-established foreign lawyer practicing organizations in Vietnam. It is however unclear whether or not the “other services which are only permissible for Vietnamese lawyer practicing organizations” under Decree 123 include the “preparation” and “drawing up” of legal documents in the same understanding as CPC 86130. So far, besides the Amended Law on Lawyers, Decree 123 and Circular 17/2011/TT-BTP dated October 14, 2011, guiding the Law on Lawyers and the Decree detailing and guiding a number of articles of the Law on Lawyers, and the Decree guiding the Law on Lawyers regarding lawyers’ socio-professional organizations, issued by the Ministry of Justice (MOJ) (Circular 17), no regulations have been issued to clarify such “other services which are only permissible for Vietnamese lawyer practicing organizations”. Therefore, it may be theoretically acceptable to interpret that certification services which are not available for foreign lawyer practicing organizations in Vietnam should currently include certification services of legal documents only. Additionally, in practice, it is less likely that the state agencies of Vietnam would take such broad interpretation as Deputy Minister of Justice Le Hong Son already confirmed that Vietnamese lawyers working at international law firms in Vietnam will continue to engage in the full range of consultancy services stipulated by the law, including drafting commercial contracts and business charters.[3]

Prohibited participation in legal proceedings

Although this issue is already partially stipulated in the pre-amended Law on Lawyers, it becomes more restricted under the Amended Law on Lawyers, namely even Vietnamese lawyers working in foreign lawyer practicing organizations are now prohibited from participating in legal proceedings in all type of courts, instead of criminal courts only in the pre-amended Law on Lawyers. Despite all the debates among lawyers, lawmakers and other related parties, this prohibition was finally included in the Amended Law on Lawyers in conformity with Vietnam’s WTO Commitments.

The problem is, however, that it is unclear whether foreign lawyer practicing organizations are permitted to have their lawyers participate in other proceedings as representatives other than “legal proceedings before the courts of Vietnam”.

Based on Clauses 1 and 2, Article 22 of the Amended Law on Lawyers, the scope of practice available to lawyers in general in relation to criminal proceedings and civil/administrative proceedings is not necessarily restricted to the courts of Vietnam only. Taken literally, “the legal proceedings before the courts of Vietnam” shall exclude the legal proceedings pre- and post- courts, which may or may not be included in the respective Codes for criminal, civil and administrative cases. The proceedings of a case, whether before the courts or not, may include a lot of procedures which may give rise to the need for a lawyer. However, in practice, it is unlikely that competent authorities will be cooperative to issue the necessary permits or permissions for lawyers working in foreign lawyer practicing organizations to act as representatives of their clients in such procedures. This issue should be clarified by the related authorities, preferably under a joint guidance from the MOJ and the People’s Supreme Court, in order to clear the ambiguity and facilitate the lawful rights of foreign lawyer practicing organizations in Vietnam.

Also under Clause 4, Article 22, the Law on Lawyers provides another service which may be available to lawyers, namely “out-of-court representative services”. However, this service is completely ignored in both the Amended Law on Lawyers and Decree 123. Article 70 of the Amended Law on Lawyers only mentions “legal consulting services and other legal services” and Article 31 of Decree 123 simply follows suit. Although “other legal services” may be interpreted to encompass both Clause 4 and Clause 5 of Article 22 of the Amended Law on Lawyers, there may be a risk that certain authorities of Vietnam may interpret that it only refers to Clause 5 of Article 22 of the Amended Law on Lawyers (i.e. “other legal services as stipulated in this Law (i.e., the Law on Lawyers)”). Given the poor and non-cooperative interpretation and application of laws by certain state authorities of Vietnam, it may become an obstacle in practice for foreign lawyer practicing organizations to engage in out-of-court representative services.

A further note is that Point (c) of Clause 3, Article 31 of Decree 123 provides for a prohibition which may be broadly interpreted, i.e. “perform other services which are only permissible for Vietnamese lawyer practicing organizations”. Strictly interpreted in the Amended Law on Lawyers, we have found no service which is specifically reserved to Vietnamese lawyer practicing organizations under the Amended Law on Lawyers, Decree 123 and Circular 17/2011/TT-BTP (as mentioned above). However, as this is an open regulation, it may be broadly interpreted by certain state authorities of Vietnam to prevent foreign lawyer practicing organizations from providing legal services which are not otherwise prohibited, including the “out-of-court representative services”.

To sum it up, although Decree 123 helps clarify certain matters in relation to the scope of practice available for foreign lawyer practicing organizations in Vietnam, it is still limited and not satisfactory in comparison to the remaining ambiguous matters left by the Amended Law on Lawyers. For the benefits of foreign legal practitioners’ experience in Vietnam as committed under international treaties, and also for the benefits of the legal picture of Vietnam with the contribution from foreign legal practitioners, it may be advisable for competent state authorities, especially the MOJ, to provide more official clarification and guidance in light of the current ambiguous and unresolved issues. In the meantime, it may be prudent that foreign lawyer practicing organizations in Vietnam should consider seeking written confirmations and clarifications of the MOJ in the form of an official letter on such ambiguous and unresolved issues to mitigate the risk that they may be held to breach the statutory scope of practice in the end of day.-



[1] Addendum No. WT/ACC/VNM/48/Add.2 - Schedule of Specific Commitments in Services

[2] Even in updated version 1.1 of the CPC, this definition is roughly the same as follows: “82130 - Legal documentation and certification services: - advice, representation, drafting and certification of documents and other related legal services concerning patents, copyrights and other intellectual property rights; - advice, representation, drafting and certification of documents and other related legal services concerning other legal documents, such as wills, marriage contracts, commercial contracts, business charters, etc.”

[3] See http://www.amchamvietnam.com/6059/ministry-of-justice-statement-at-vietnam-business-forum-re-amended-law-on-lawyers-dec-3-2012/ , last visit on November 30, 2013

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