A criminal lawyer risk prevention  Zhang Shuishan

Abstract: a lawyer to handle not only a great risk of criminal cases, and the sources of risk are also many, a lawyer to run the criminal case, we must clearly lawyers in handling criminal cases of sources of risk and to prevent, protect yourself, and then fulfill the law duty, for every criminal case.

Keywords: criminal lawyer practicing risk prevention

Criminal lawyer risks, criminal defense and agent business risk weight can make a famous lawyer as a prisoner, can make a good criminal lawyer practice license was revoked, light will make the lawyer stood in the teeth of the storm against the occupation moral or professional discipline, will be the complaint, will by the disciplinary punishment of lawyers, will encounter practicing fault compensation. So, the criminal law to avoid getting into awkward situation, must pay attention to the prevention of the risk. The risk in practice criminal lawyer in addition to encounter traffic accident, accident and other general risk, a lawyer to handle the risk of criminal cases mainly from several aspects, firstly is a lawyer's practicing behavior was not standardized risk, followed by the parties and their families to the risk brought by the lawyers, once again, the other party and their families bring risk finally, is the risk investigation, prosecution of criminal procedure and its staff to bring criminal lawyer. We should establish the risk style consciousness, actively carry out risk prevention work well, for each case, criminal defense agency.

A lawyer should pay attention, due to their own practice behavior was not standardized risk

1, the lawyer as lawyers not to non lawyer counsel, litigation agent to participate in litigation activities

In September 18, 2009, the Henan Provincial Higher People's court, the Henan Provincial Department jointly issued a relaxation method [2009] No. 426 "on the norms of law as the defenders and agents ad litem, the provisions of identity", the provisions of Article 1: lawyer to lawyer defender, agent ad litem in legal proceedings. He is a party to the case of close relatives or legal representative, the guardian, in accordance with the statutory conditions and procedures, to citizenship as a defender or agent ad litem. Second the provisions of the second paragraph: the people's court found that lawyers in a non lawyer defender, agent ad litem, shall refuse to participate in the litigation activities, and promptly notify the administrative department at the same level of the judicial administrative organ lawyer.

2, major, difficult and sensitive cases to the timely request, report and handle

For lawyers in the major, difficult, sensitive to the process of criminal cases, to consult, timely report to the judicial administrative organ or lawyers association. To refer the matter to the collective discussion, gatekeeper, play a law firm collective wisdom fully, grasp the core case, in order to avoid or reduce the errors that may occur, reducing the risk of medical practice.

3, criminal cases, lawyers don't "risk agency"

The lawyer handling criminal cases shall sign the risk service contract, no lawyers "risk agency" or "risk charge".

4, the lawyer is not to accept authorization, unauthorized charges or other fees
 According to the management rules and regulations, lawyers fees "law firms charge rules of procedure", the undertaking lawyer shall not charge the client of different travel cases, law firms to counsel clients to collect fees, shall promptly report to the principal issue legal bills. No lawyer charge back, no lawyer personally issued receipts. A lawyer shall not violate the provisions on the administration of lawyers service charge or fee contract, which shall not be vicious competition, price charges, not price oneself out of the market, not fees to the client for specified or agreed or property.

5, lawyers do not justify more than two co defendants

"The Supreme People's Court on the implementation of 'of the people's Republic of China Criminal Procedure Law' interpretation of several issues" thirty-fifth stipulates: "a defendant to entrust defenders shall not exceed two. In the case of joint crime, a lawyer shall not be more than two co defendants."

Two, the lawyer is to avoid the attention of professional risk from the parties and their families

1Lawyers don't promise, the results of the parties

Lawyers, many factors determine the final result of the case, the case itself is the decisive factor of evidence, the case. The lawyer, understanding degree, lawyers for the case of breakthrough to the cases selected, the nature of the case to grasp, litigation skills are the outcome of the case is crucial. For the parties, can truthfully state the case, can comprehensively and objectively, and provide evidence of whether their lawyers communication with good also to the case will have a major impact. For judge, whether in business, whether the effect of relatively independent, can be impartial to... Will result to the case of fundamental. We know, whether criminal defence or agency, the outcome of the case by the lawyer is not determined, only lawyers try to safeguard the legitimate rights and interests of the parties. The lawyer's job is to use their professional knowledge, skill and the relevant evidence materials, as far as possible to convince the neutral referees to referee conclusion own advantage. The lawyer's occupation ethics and practice discipline does not allow lawyers to monopolize lawsuits, lawyers can only forecast, according to the results of its experience and has mastered the evidence of the case after all, many factors affect the outcome of the case, a change of factors, the conclusion may be quite different, of course, the degree of accuracy with the experience level high lawyer forecast will be more often. For lawyers in the defence or agency entrusted matters, cannot accept illegal or improper require the client to various forms of. A lawyer should cherish their reputation, not for irresponsible assertions or contract cases, once the results get the opposite of what one wants, the parties will complain even proposed such as compensation for loss of requirements and some will, make the lawyer whipsawed reputation and economy.

2,Lawyers as agents of the criminal procedure, within the limits of authorization, safeguard the lawful rights and interests of the client

A lawyer shall not be exceeded the authority of agency activities, this is especially noteworthy in criminal agent. Without the principal's written approval, shall not change the scope of litigation request, no legal affairs and agent engaged in related activities. The lawyer exercise the power of agency, should as far as possible seek client opinion, even if has obtained special authorization, involved in the client's major interests and matters, should as far as possible seek client opinion, and in written form for the record.
   3The parties, lawyers as agents ad litem agent and incidental civil plaintiff, should also maintain the criminal andThe two aspect of civil rights

In criminal cases the agent work, lawyers working the same Defenders the work, must pass through the marking, met with the defendant in custody (only for the criminal defendant's agent),Investigation and evidence collectionWork, work also should take the fact as the basis, take the law as the criterion. Of course, the defender to come up with the defense, agent to take the word agent, lawyer to defend and incidental litigation defendant civil agents, will be ready at the same time the defence and representation. Similarly, lawyers as agents ad litem victim party and incidental civil plaintiff's agent, will be ready at the same time criminal agent opinions and incidental civil action proxy word, to maintain the legal rights and interests of clients.

4The exercise of independent, defend the rights of lawyers should be combined with communication

Defence lawyers have legally independent right of defense, defense lawyers defended the views of what kind of, what kind of means of defense, should be based on facts and law stipulated according to the details of the case and the law of independent defense, not the accused person views constraints, also need not ask the defendant's consent, but want to get good defense effect, lawyers should communicate with the defendants and their families exchange defense opinions, ideas and lawyers to the accused and the family members of the defense of such agreement, the defendant and his family will and defense lawyers with good, can achieve good defense effect, and earnestly safeguard the legitimate rights of the defendant. Lawyers should pay attention to making the necessary work records, to record conversations made conversation should be filed for the record.

5Attorney general, retaining only the copy of original evidence, evidence from the custody

Lawyers in the process of practice, in order to prevent disputes arising due to the important evidence lost the principal, special attention should be paid as much as possible to retain only evidence copy, must retain the original of the evidence, should be kept properly, the evidence, shall timely return of the original evidence, avoid missing evidence original causes losses to a party.
    6To avoid the generation, collar, not timely handover or safekeeping of legal instruments and lead to disputes

Criminal agency business, in order to avoid between lawyers and clients as a result of generation of legal documents, not timely handover or safekeeping lead to disputes, lawyers should pay special attention to in the performance of different stages of agency duty, timely handle the relevant legal documents handover procedures with the parties, and shall be valid. Avoid not timely handover failure to appear in court, beyond the limitation.

Three, pay attention to prevent the risk from the other party

A criminal case, the victim and victim often is not good, the contradiction is serious, especially in the case of is life. Defense counsel's legal duty is to put forward the innocence of the defendant, light offence facts and opinions, protect the legitimate rights of the defendant, when we put the innocence of the defendant, materials and opinions of light, especially we propose the victim has great faults, easily angered the victim, the victim is easy to put on the defendant discontent out on us, so we published in the official defense, proxy advice before, first to the victims expressed sympathy and comfort, also must pay attention to the words in court to speak, to speak with evidence, must not be words mean, prevent unwise language yourself into trouble. For the case of complex background or the conflict of interest obvious cases, lawyers to provide legal services, protect the legitimate rights and interests of the parties, to maintain social harmony and stability. At the same time, must pay attention to their own personal security. Lawyers in the case of defence or agency, must pay attention to occupation accomplishment, to avoid provoking contradictions or conflicts, avoid over all possible conflict or ambiguity or may lead to other sensitive speech and deportment, in order to avoid personal safety under siege, threats, insults, beatings and other damage.

Four, pay attention to avoid the risk in practice from the investigators and prosecutors

1The court language, attention, to persuade the judge to adopt defence agency views as the main task

Control, between the two parties in the court position is different, different views is normal, both sides give tit for tat is the duty, the common pursuit of the goal is "to protect human rights, judicial justice". So in the exercise of right of defense lawyers should pay attention to words, incomplete, and the public prosecutor not direct conflict, so, avoiding the occupation revenge caused by the attack may.

Defense goal is to enable judges to adopt the defense opinion. Criminal defense lawyer in court to convince the judge only, should not overdo sth., not necessarily with prosecutors contend for a short, Daniel does not forgive people. After the trial, criminal defense lawyers should shake hands with active and prosecutors say goodbye, expresses the understanding to fulfill their duties behavior prosecutor please, eliminate antagonism prosecutor, risk in practice because of give tit for tat trial produced.

2,Lawyers don't interfere with the judicial litigation activities.

No matter what the purpose and motivation, defence lawyers may help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, this need not say more. The witness can objectively reflect the real situation of their own knowledge, to prove the facts of a case is very important, which requires the witness must be based on facts, not personal likes and dislikes and conjecture. Defense lawyers for the defendant to tell the truth, not threatening, luring witnesses to change their testimony or perjury. In addition, a defense lawyer in a court trial in the process not curry favour by claptrap, or court, not to disturb the order of the court investigation evidence collection, not illegal.

3The defense lawyer, and agency, is not affected by the prosecutor will constraint, but should pay attention to communication and respect different opinion

The defense lawyer to defend the defendant in the litigation purpose, and the procuratorial organ and judicial organ is the same, but their functions are different. Counsel not to transfer to the public prosecutor or judge will in accordance with the law. Defense lawyer's mission is to refute the public prosecutor's complaint, put forward and found in favor of the defendant materials and opinions. A lawyer acting for the victim to agents, lawyers, the case qualitative facts of the crime, the circumstances of the crime, sentencing opinion and the public prosecutor disagreements exist, sometimes will be quite different. Status of lawyers and prosecutors in the lawsuit is equal, they enjoy equal rights, and equality in court debate. The lawyer proposed by different from the material and the opinion, the court a comprehensive understanding of the circumstances of the case, to meet the processing results of law. In the performance of the defense agency duty criminal lawyer, one should fully exercise their rights endowed by law, stick to the facts and legal principle, abide by the occupation morals and professional discipline, perform their defense duties, on the other hand, in their own defense, agents and prosecutors opinions can be quite different, is not influenced by the prosecution people will constraint, and pay attention to communication and respect different opinion.

4,Should be based on facts and legal issue legal opinion book

Defence or agency lawyers in the legal opinions issued or advising major should be careful, rigorous, standardized, strictly to good practice, should be based on the facts and the law. Lawyers issued legal opinions wrong or false, legal advice or issued by the major issues missing, may bear the corresponding legal responsibility; which caused great losses to the parties concerned, it shall bear the liability for compensation.
    6,Major, complex, sensitive, controversial cases, to 2 lawyers to handle

For major, complex or "sensitive" or controversial cases, preferably two lawyers also met, especially criminal suspects, defendants confession too big change, the meeting should be to two people. With this kind of case, suggested that each meeting is to make meeting records and safekeeping. Transcripts of the meeting shall be delivered to the criminal suspect to read or read out to them. If the record an omission or error, should let the suspect, the defendant compensation, in the crime suspect, defendant after confirmation, the signature and press handprint on the transcript. Lawyers met the suspect, the defendant, shall strictly abide by the provisions of the supervision and management, pay attention to its own security and prevent criminal suspects, defendants, Dutch act etc..

7The case, pay attention to security

The lawyer after the meeting, when the defendant family, friends asked the meeting the situation, generally can be told to the meeting and the main, but not the facts of the case has not been made public to inform the client; also can give the suspect, the defendant's greetings, life needs, but will not express or imply that the client will go "pull the relationship", treat or gift even bribes.

Five, set up the consciousness of risk prevention, risk prevention work to do, every criminal case

Lawyers should pay attention to the lawyer in criminal proceedings of the risk and its prevention, to overcome the drop one's guard or luck, attention to the risk prevention, risk areas, to establish the risk prevention consciousness; to strictly abide by the norms of practice, strengthen their sense of law; to strengthen quality management, enhance the quality awareness, reduce or to avoid possible errors in the process of handling cases; to adhere to the lawyer's occupation morals and professional discipline, to develop good occupation ethics and practice habit, strengthen the consciousness of a lawyer's duty, in order to achieve peace, completes each item of criminal defense, agency work smoothly.