Fred Rocafort in The Diplomat

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Some foreign lawyers in China, who by definition are forbidden from practicing law in the country, have been open about this gaping hole in China’s legal protections. American attorney Fred Rocafort in 2019 wrote in a blog for law firm Harris Sliwoski that “China does not have an attorney-client privilege.”

Rocafort cites another American lawyer, Brad Luo, who had several years prior written that “China’s ethical rules for lawyers have a ‘bright line’ rule forbidding them from representing both sides in the same conflict, but go little beyond that.” Luo explained that China does not require lawyers to remain loyal to former clients, therefore allowing them to turn on them “without offending any ethical duty of confidentiality” to either the old client or the new client. Rocafort offers some examples: “Perhaps your Chinese lawyer has another client who would just love to take a look at that new patent application of yours. Perhaps your Chinese law firm stands to benefit by tipping off your competitor before it files your trademark application – we have many times heard of this happening.”

Both Luo and Rocafort come to the conclusion that “if I were a client, I’d hesitate talking about certain things with my Chinese lawyer.”