LAWYERS’ ETHICS

A comparative review of
PROFESSIONAL CODE OF CONDUCT
Tuan A PHUNG Esq. Managing
Partner | VCI Legal
Vice Chairman |VAFI Vietnam Association of Financial Investors
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 TABLE OF CONTENTS
I. OVERVIEW:
1. VBF’s Professional Code of Ethics and Conduct (“VBF COE”)
2. ABA’s Model Rules of Professional Conduct (“ABA COC”)
3. IBA’s Code of Ethics and The Principles on Conduct for the legal profession (“IBA Code”)
II. IBA - ABA– VBF Code of Conduct Comparison
1. Lawyer – Client Privilege CONFIDENTIAL
2. Avoiding Conflict of Interest
3. Duty of Diligence and Competence
4. Commingling MIX FUNDING

5. Self – dealing
6. Fee – splitting
7. Withdrawal from presentation
8. Duties towards tribunal
9. Limitations on legal advertising
10. Report misconduct of other lawyers
11. Penalties

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 OVERVIE
W
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 VBF’S PROFESSIONAL CODE OF ETHICS
& CONDUCT (“VBF COE”)

• The VBF COE was issued together with Decision No. 201 /
QD-HDLSTQ dated December 13, 2019 by the National Lawyers’
Council.

• This New Code has replaced the Professional Code of Ethics and
Conduct dated July 20, 2011.

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 VBF’S PROFESSIONAL CODE OF ETHICS & CONDUCT
(“VBF COE”)

The VBF COE consists of 6 Chapters with total 32 rules

Chapter 1: General Rules (4 Rules);
Chapter 2: Clients Relationship (12 Rules);
Chapter 3: Colleague Relationship (9 Rules);
Chapter 4: Relationship with Proceeding Authorities/Officers (3 Rules);
Chapter 5: Relationship with Other State Agencies, Organizations and Individuals (2
Rules);
Chapter 6: Other Rules (2 Rules).

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 ABA’S MODEL RULES
OF
PROFESSIONAL CONDUCT (“ABA COC”)
• The ABA COC were adopted by the ABA House of Delegates in 1983, which serve as
models for the ethics rules of most jurisdictions.

• Previously, ABA issued the Model Code of Professional Responsibility in 1969.

• Preceding the Model Code were the 1908 Canons of Professional Ethics with the
contents were primarily based on the Alabama’s Canons of Ethics (1887).

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 ABA’S MODEL RULES
of PROFESSIONAL CONDUCT (“ABA COC”)

The ABA COC consists of 8 Chapters with total 55 rules:

Chapter 1: Client – Lawyer Relationship (18 Rules);
Chapter 2: Counselor (3 Rules);
Chapter 3: Advocate (9 Rules);
Chapter 4: Transactions with Persons Other Than Clients (4 Rules);
Chapter 5: Law Firms and Associations (7 Rules);
Chapter 6: Public Service (5 Rules);
Chapter 7: Information About Legal Services (4 Rules);
Chapter 8: Maintaining the Integrity of the Profession (5 Rules)

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 IBA’S INTERNATIONAL CODE OF ETHICS & PRINCIPLES
On CONDUCT FOR THE LEGAL PROFESSION (“IBA Code”)

• The International Code of Ethics was first adopted in 1956 (this is edition 1988)
by the International Bar Association, consisting of 21 rules.
• The International Principles on Conduct for the Legal Profession (2019) consists
of 10 rules:
1. Independence 6. Lawyers’ undertaking
2. Honesty, integrity and fairness 7. Clients’ freedom
3. Conflicts of interest 8. Property of clients and third parties
4. Confidentiality/ professional secrecy 9. Competence
5. Clients’ interest 10. Fees

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IBA – ABA– VBF
Code of Conduct
COMPARISON

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LAWYER – CLIENT PRIVILEGE

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 IBA Code ABA COC VBF COE
Rule 14 (Code of Ethics) Rule 1.6: Rule 7:

- Lawyers should never disclose, unless A lawyer shall not reveal information + Lawyers are obliged to keep clients'
lawfully ordered by the Court/Statute, relating to the representation of a client information confidential during/after legal
what has been communicated to them unless having client informed consent or services provision, unless otherwise
by the clients even after the client’s exceptions: agreed by clients or
counsel. (1) to prevent reasonably certain death or provided by the law.
substantial bodily harm;
- duty extends to partners, junior (2) crime- fraud prevention + A lawyer shall be responsible for asking
lawyers & their employees. (3) prevent, mitigate or rectify colleagues/staff to keep clients’
substantial injury to financial interests information confidential as well
Rule 4 ( Principles on Conduct) or property of another resulted from the
client's crime/fraud BUT Article 19.3 of the amended
A lawyer shall at all times maintain and (4) to secure legal advice about the Criminal Code requests Lawyer to
be afforded protection of confidentiality lawyer's compliance disclose (accuse) the clients for crimes
regarding the affairs of present or former (5) to establish a claim or defense on relating to national security & other
clients. behalf of the lawyer in a controversy crimes which are "extremely serious"?!
…. BIG CONTROVERSY

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AVOIDING
CONFLICT OF
INTEREST

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 IBA Code ABA COC VBF COE
Rule 13 (Code of Ethics) Rule 1.7: Rule 15
A lawyer must refuse to accept/ continue
Lawyers should never represent A concurrent conflict of interest exists if: representing:
conflicting interests in litigation.
1) the representation of one client will be 1) Clients have adverse interests;
In non-litigation matters, lawyers should directly adverse to another client; or 2) New clients have adverse current
do so only after having disclosed all clients;
conflicts/possible conflicts to all parties 2) there is a significant risk that the 3) new cases of current clients which
concerned and with their consent. representation of a client(s) will be may include adverse interest to
materially limited by the lawyer's another current clients;
responsibilities to another 4) New client has adverse interest to
Applies to all lawyers in a firm
client/former client or a third person or former clients in the same case or
by a personal interest of the lawyer. directly related case that the lawyer
Rule 3 (Principles on Conduct)
has previously done for a former
client;
lawyer shall not assume a position with 5) The client has adverse interest to the
conflict of interests with another lawyer or his/her father, mother,
lawyer in the same firm, or another spouse, children, siblings, etc.
client

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DUTY OF DILIGENCE
& COMPETENCE

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 IBA Code ABA COC VBF COE
Rule 10 (Code of Ethics) Rule 1.1 Rule 5

Lawyers shall at all times give clients a A lawyer shall provide competent Lawyer shall dedicate themselves to their
candid opinion on any case. They representation to a client. Competent work,
shall render assistance with scrupulous representation requires the legal make the best use of their ability,
care and diligence. This applies also if knowledge, skill, thoroughness and expertise, professional skills and lawful
they are assigned as counsel for an preparation reasonably necessary for measures to best protect clients’
indigent person. the representation. legitimate rights and interests in
accordance with the law.
Rule 9 (Principles on Conduct) Rule 1.3
A lawyer’s work shall be carried out in Rule 12.1
a competent and timely manner. A lawyer shall act with reasonable
diligence and promptness in Lawyer shall actively solve clients' cases
Otherwise lawyer shall not take on
representing a client. and inform clients about the case resolution
work that the lawyer does not
process.
reasonably believe can be carried out
in that manner.

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COMMINGLING

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 IBA Code ABA COC VBF COE
Rule 15 (Code of Ethics) Rule 1.15
…lawyers shall be most punctual and
diligent… never mingle funds of Lawyer shall avoid commingling by No rule
others with their own & … at all times keeping the funds of clients and third
be able to refund money they hold for persons separate from those of the
others. …. not retain money … for lawyer. Commingling occurs when a
their clients for longer than is lawyer holds his or her own funds in
absolutely necessary. the same account that is holding client
or third-party funds. Commingling is,
Rule 8 (Principles on Conduct) itself, a violation of the ethics rules and
A lawyer shall account promptly and may subject a lawyer to discipline.
faithfully for and prudently hold any
property of clients or third parties that
comes into the lawyer’s trust, and shall
keep it separate from the lawyer’s
own property.

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SELF-DEALIN
G

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 IBA Code ABA COC VBF COE
Rule 12 (Code of Ethics) Rule 1.8
- A lawyer shall not enter into a business No rule stipulating that a lawyer
Lawyers should not acquire a with a client or acquire an ownership, - may or may not engage in a
financial interest in the subject possessory, security or other pecuniary transaction unfavorable to his or
interest adverse to a client her clients,
matter of a case which they are
unless otherwise provided
conducting. - nor are there any regulation
- Lawyers are prohibited from acquiring providing that a lawyer can not
Not directly or indirectly, acquire a proprietary interest in receive property that is a subject
property about which litigation is litigation/ ownership interest in the matter of their representation.
pending before the Court in which subject of the representation
they practice.
Exceptions:

liens authorized by law to secure the

lawyer's fees/expenses and contracts for
reasonable contingent fees.

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FEE – SPLITTING

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IBA Code ABA COC VBF COE
Rule 5.4 Rule 21.4
No rule 1) not share legal fees with a nonlawyer.
2) not form a partnership with a nonlawyer if any of [Lawyers shall not] [h]ire or pay
the activities of the partnership consist of the for customer brokers or broker a
practice of law. client to a colleague to receive
3) not permit a person who recommends, employs or commissions.
pays the lawyer to render legal services for another
to direct or regulate the lawyer's professional
judgment in rendering such legal services.
4) not practice with or in the form of a professional
corporation or association authorized to practice
law for a profit.

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WITHDRAWAL
FROM PRESENTATION

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 IBA Code ABA COC VBF COE
Rule 10 (Code of Ethics) Rule 1.16 Rule 13
A lawyer may withdraw from Optional withdrawal if:
Lawyers shall at any time be free to representing a client if: 1) Clients' new requests are outside of
refuse to handle a case, unless it is 1) withdrawal can be accomplished the scope of law practice or
assigned by a competent body. without material adverse effect on unethical or unlawful;
the interests of the client; 2) Clients refuse the lawyer's legal
Lawyers should only withdraw from a 2) The client persists in a course of advice;
case during its course for good cause, action involving the lawyer's services 3) Clients violate the Legal Service
and if possible in such a manner that that the lawyer reasonably believes is Agreement or the relationship
the client’s interests are not adversely criminal or fraudulent; between lawyer and
affected. 3) the client has used the lawyer's clients is damaged not due to the
services to perpetrate a crime or lawyer's fault of ;
fraud; 4) There is a threat forcing the lawyer
4) the client insists upon taking action to violate the law and professional
that the lawyer considers repugnant or ethics;
with which the lawyer has a 5) There are grounds to determine that
fundamental disagreement, etc. the client has deceived the lawyer.

(to be cont'd)

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IBA Code ABA COC VBF COE
Rule 13

Compulsory withdrawal if:

1) There are grounds to identify clients
using legal services of the lawyer to
commit illegal or unethical acts;
2) Cases that the lawyer must refuse
upon the client's service request under
Rule 11: (a) clients requested legal
service via another person, but such
person abuses such representation to
seek improper benefits affecting the
clients' legal interest; (b) clients
intend to abuse the legal service for
illegal purposes; (c) clients provided
fake evidence; (d) cases of conflict of
interests.
3) Other cases under the law or due to
events of force majeure

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DUTIES TOWARDS
TRIBUNAL

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 IBA Code ABA COC VBF COE
Rule 6 (Code of Ethics) Rule 3.3 Rule 26, 27, 28

Lawyers shall always maintain due A lawyer shall not knowingly: 1) Lawyers must strictly abide by the
respect towards the Court. Lawyers relevant laws relating to the legal
1) Make a false statement of fact or proceeding authorities;
shall without fear defend the
law to a tribunal or fail to correct a
interests of their clients and without false statement of material fact or 2) Exchange professional opinions with
regard to any unpleasant law previously made to the tribunal the competent authorities when necessary;
consequences to themselves or to by the lawyer;
any other person. Lawyers shall 2) Fail to disclose to the tribunal legal 3) Lawyers must abide by the rules of the
never knowingly give to the Court authority in the controlling court, the rules in the court room, obey
incorrect information or advice jurisdiction known to the lawyer to the control of the court chairman and the
which is to their knowledge contrary be directly adverse to the position trail panel;
to the law. of the client and not disclosed by
opposing counsel; or 4) Respect objective truths in arguments
3) Offer evidence that the lawyer knows
to be false.

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LIMITATIONS ON
LEGAL
ADVERTISING

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 IBA Code ABA COC VBF COE
Rule 8 (Code of Ethics) Rule 7.1 Rule 9
1) Communication is false or
A lawyer should not advertise or solicit misleading if it contains a material A lawyer shall not:
business except to the extent and in the misrepresentation of fact or law. 1) Communicate directly or using
manner permitted by the rules of the 2) A lawyer must not “omit a fact implications to clients about the lawyer’s
jurisdiction to which that lawyer is necessary to make the statement relationship with the relevant authorities;
subject. A lawyer should not advertise or considered as a whole or not 2) Give out confusing information to
solicit business in any country in which materially misleading” clients about the lawyer’s ability and
such advertising or soliciting is 3) Lawyer shall not make expertise so they sign into contracts;
prohibited. communication “likely to create an 3) Promise, ensure the outcome of a case;
unjustified expectation about 4) Provide false information
results the lawyer can achieve 5) Advertise in a way that affects the
4) Communications shall not “compare honor and reputation of other lawyers.
lawyers’ services with other
lawyers’ services”, unless can
proved it as a fact

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REPORT
MISCONDUCT
OF OTHER
LAWYERS

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IBA Code ABA COC VBF COE
Rule 8.3 Rule 18.1

No rule 1) A lawyer who knows that another lawyer has [A lawyer shall] provide timely
committed a violation of the Rules of suggestions when they see colleagues
Professional Conduct that raises a substantial
doing wrong things affecting the
question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer in other reputation of the lawyer profession.
respects, shall inform the appropriate
professional authority. Rule 22.2

2) A lawyer who knows that a judge has committed A lawyer in a law-practicing organization
a violation of applicable rules of judicial takes reasonable measures within the
conduct that raises a substantial question as to scope of his / her duties and powers to
the judge's fitness for office shall inform the ensure that the law-practicing
appropriate authority.”
organization and its members comply
with the Code

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PENALTIES

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IBA Code ABA COC VBF COE
Misconduct shall be grounds for one Penalties stipulated in laws/ internal
No rule or more of the following sanctions: rules of local bar association
1) Disbarment
2) Suspension - Article 40 of VBF Rules:
3) Probation imposed by the Lawyers who violate the MPCEC,
court/counsel may be disciplined :
4) Reprimand
5) Admonition by disciplinary 1) Reprimand;
counsel. 2) Warning;
6) Restitution to persons financially 3) Suspension from 6 to 24
injured, disgorgement of all or part months; or
of the lawyer's or law firm's fee, 4) Disbarment
and reimbursement to the client
security protection fund.

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IBA Code ABA COC VBF COE
7) Assessment of the costs of
the proceedings (investigations, Under Decree
No rule service of process, witness fees, and 82/2020/ND-CP, Penalties as
a court reporter's service) in any follows can be applied1:
case where discipline is Warning, Fines, Suspension of
imposed or there is a transfer the Lawyer License, etc.
to disability inactive status.
In case of serious violations,
8) Limitation by the court on lawyers may be prosecuted for
the nature or extent of the criminal responsibility.
respondent's future practice.

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 QUESTIONS?

Discussion
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