A New Attorney Regulation Act in Tune with the Times—General Explanation of the Draft Amendments to the Attorney Regulation Act (NGO Version)

Following resolutions at the preparatory meeting of the Attorney System Reform Group on April 19, 2005, and the action meeting on May 16 of the same year, the Judicial Reform Foundation initiated the "Attorney System Reform Project" based on the Blueprint for Judicial Reform. In collaboration with the Taipei Bar Association and various civic groups including the Taiwan Law Society, the Prosecutors' Reform Association, and the Taiwan Advocates, the Attorney Law Amendment Group was established in June of that year. The amendment group met regularly once or twice a month to thoroughly review the deficiencies of the existing attorney legal system while referencing relevant legislative precedents in Japan, Germany, and the United States, thereby comprehensively revising the attorney legal system. This NGO version of the draft amendments to the Attorney Regulation Act primarily focuses on two major directions:

1. Strengthening the functions of bar associations to realize attorney self-governance and self-regulation. Attorneys have long been lauded as the "jurists outside the courtroom." To implement the spirit of attorney self-governance and self-regulation, various regulations concerning the acquisition, revocation, or withdrawal of attorney qualifications, the formation of bar associations, and attorney disciplinary actions should be left to attorney self-governance, with the judicial administrative system playing at most an assisting rather than a supervisory role. Furthermore, given the significant increase in the number of newly admitted attorneys and the entry of foreign attorneys to practice in Taiwan, the organization and resources of bar associations need to be adjusted and integrated to effectively exert the influence of bar associations on major policies and promote the people's right to equal access to legal resources.
2. Ensuring the professionalism and independence of attorneys to protect the rights of clients. As specialized practicing professionals who bear high social responsibilities and ethical requirements, how to expand their service scope and functions, and enhance their legal professionalism and knowledge in pace with the pulse of the times, is a serious issue that attorneys must face. Facing increasingly fierce competition, rather than passively relying on market forces to determine the merits of attorneys, we should proactively enhance attorney professionalism through institutionalized continuing education. Therefore, strengthening pre-practice training and continuing education for attorneys, expanding the scope of practice, and even reducing administrative supervision are core issues of concern in this draft amendment.

Accordingly, this amendment references the formatting of specialized professional and technical personnel regulations in our country, such as the Physicians Act, Certified Public Accountants Act, and Architects Act, and reorganizes the provisions into chapters: Chapter 1 "General Principles," Chapter 2 "Practice," Chapter 3 "Bar Associations," Chapter 4 "Duties and Responsibilities," Chapter 5 "Discipline," Chapter 6 "Foreign Attorneys and Foreign Law Attorneys," and Chapter 7 "Supplementary Provisions," totaling 109 articles. The key points are explained as follows:

1. Regarding important matters such as the acquisition, revocation, withdrawal, and discipline of attorney qualifications, the principle of attorney self-governance and self-regulation is affirmed, with assistance provided by the Judicial Yuan:

1. The provision designating prosecutorial agencies and their administrative authorities as the competent authority for attorney enterprises is deleted, as attorneys should stand on an equal footing with prosecutors when exercising their professional duties. The acquisition, revocation, and withdrawal of attorney qualifications, as well as re-applications for qualifications, shall have the Judicial Yuan as the competent authority.
2. The implementation, methods, duration, and matters concerning the withdrawal, suspension, or retaking of pre-practice training for attorneys are revised to be planned and administered by the National Bar Association.
3. The requirement for attorneys to register with local district courts and prosecutors offices is deleted. Since attorneys must join the local bar association of their place of practice in order to practice, it is prescribed that each local bar association shall compile a roster of its primary and secondary members and report it to the National Bar Association.
4. The composition of the Attorney Disciplinary Committee is revised, its disciplinary discretion and methods are expanded, and the system of the Attorney Disciplinary Review Committee is abolished, replacing it with remedies through general administrative litigation procedures.

2. Establishing the legal basis for attorney continuing education regulations:

It is added that attorneys have an ongoing obligation to participate in continuing education while in practice. In conjunction with the future establishment of a specialized-field attorney system, continuing education may lead to the acquisition of specialized-field qualification certificates. The continuing education regulations and specialized-field qualification certificate regulations shall be delegated to the National Bar Association to enact.

3. Increasing flexibility in how attorneys choose their places of practice and join local bar associations in their practice areas to reflect the realities of legal practice:

1. Based on the protection of people's right of litigation and to avoid imposing inappropriate restrictions on attorney practice, it is added that attorneys shall establish a main office and may establish branch offices; attorneys practicing in areas other than the location of their main office may join the local bar association of that area as secondary members, and their related rights and obligations shall be subordinate to those of primary members.
2. In addition, in current practice, there are frequent instances where two or more persons use the same office name for practice without an internal civil law partnership relationship. To avoid disputes arising from the external use of the same name and to protect clients seeking legal services, it is added that for professional negligence arising from a specific entrusted case, in addition to the mandated attorney, other attorneys jointly practicing in the same office shall also bear joint and several liability.

4. Establishing the status and purpose of bar associations and strengthening their roles and functions:

Establishing the legal status of bar associations as corporate legal entities, explicitly stipulating the purpose, organization, and powers and responsibilities of the National Bar Association, and empowering the associations with the power to review member admissions to strengthen the function of attorney self-governance. A remedy channel is added for the review results of membership applications to safeguard attorneys' rights to practice.

Soundly organizing the structure and autonomous powers of the National Bar Association and local bar associations, and maintaining the interaction between the associations and the judicial administrative system and administrative agencies.

5. Strengthening attorney practice competence, ethics, and professional responsibilities:

1. To strengthen attorney practice competence and implement the principle of equality of arms with prosecutors, it is necessary to grant attorneys a certain degree of investigative power regarding entrusted cases. Therefore, following the Japanese legislative example, it is added that local bar associations may, upon an attorney's request, demand public and non-public agencies to provide necessary documents.
2. Current provisions regarding the methods of attorney practice and the rights and obligations between attorneys and clients are overly brief. Relevant provisions from the existing Attorney Code of Ethics that are more detailed are moved into the Attorney Regulation Act, such as the obligations an attorney must fulfill upon terminating a case entrustment, prohibitions against acquiring financial interests in the subject matter of a case handled by the attorney, prohibitions against directly or indirectly accepting assignment of the subject matter of ongoing litigation cases, and regulations on the agreement and limitation of remuneration between attorneys and clients for entrusted cases.
3. It is added that oral and written statements or other actions made by attorneys in relevant judicial or administrative agencies that are legitimately related to their practice shall not incur civil or criminal liability, so that attorneys may be free from undue pressure when performing their duties, fully exercise their functions, and effectively protect clients' constitutionally guaranteed right to litigation.

6. Explicitly providing for the regulation that attorneys may advertise to meet the demand for the universal accessibility of legal services. Referring to the current Attorney Code of Ethics and legislative precedents in Japan, Germany, and the United States, exaggerated and false advertisements are prohibited, while advertising media and methods are unrestricted.

Regarding the corporate office part in Chapter 2 "Practice," please refer to the dedicated article "Introduction to Corporate Offices."

A Profile of the Amendment Process

In fact, prior to this amendment, an internal draft amendment to the Attorney Regulation Act by the Ministry of Justice had been shelved for several years for various reasons. Given that the reform of the attorney system is a critical link in whether judicial reform succeeds, the JRF hoped to give birth to an NGO version of the draft amendments to the Attorney Regulation Act through spontaneous grassroots efforts while urging the Ministry of Justice to accelerate the pace of amendment.

To carry out this comprehensive amendment work efficiently, upon its convening in 2005, the amendment group first set discussion topics for successive meetings and invited relevant competent authority representatives, experts, and scholars to participate in individual meetings to deepen the exploration of issues. The discussion topics included:

1. Acquisition, training, and practice of attorney qualifications
2. Number of offices and attorney organizational systems
3. Public interest missions of attorneys
4. Attorney evaluation systems
5. Attorney ethical conduct and attorney discipline
6. Professional certification and attorney continuing education systems
7. Attorney examination systems
8. Development trends of the attorney system under the new civil and criminal litigation systems
9. Attorney mutual aid and welfare systems
10. Incorporation of law firms, attorney limited liability, attorney liability insurance, and firm organizational structures
11. In-house attorney practice and government attorney issues
12. Attorneys and commercial operations
13. Relationships between adjacent practices
14. Attorney participation in non-litigation and ADR
15. Promotion of attorney business (attorney advertising)

The scope of the above discussion topics varied in size. However, to keep pace with the schedule, the amendment group generally adopted the principle of one topic per meeting. Nevertheless, when discussing the topic of "incorporation of law firms," the amendment group considered that the corporate office system involved excessively broad aspects, including compulsory liability insurance, taxation, and liability determination; discussing it in just one or two meetings was clearly insufficient. To balance the overall progress of the draft amendments, it was resolved to list "incorporation of law firms" as a separate sub-project, entrusting specific members to conduct legislative research. Therefore, except for the dedicated chapter on the incorporation of law firms, the amendment group successfully completed the first draft of the amendments one year after the start of this project, and relevant provisions for the incorporation of law firms were also added recently.

During the amendment process, since the attending members were legal seniors and scholars—such as attorneys and prosecutors who had long cared about the development of the attorney system—they could usually strike at the core of the issue when exploring topics, pointing out the current reality and needs of practice. However, the most frequent difficulty encountered during discussions was the lack of sufficient empirical research and community consensus to support the amendment arguments.

Taking the discussion on "In-house attorney practice and government attorneys" as an example, because the number of in-house practicing attorneys is increasing day by day, there is an urgent practical need to clarify related controversies, including whether in-house practicing attorneys can handle litigation cases for their employing enterprises in the capacity of an attorney or a general agent, and whether they should register with local bar associations. However, because most members of the amendment group lacked in-house practice experience, although discussions at meetings were enthusiastic, they were mostly limited to throwing out issues, making it difficult to further substantiate the amendment arguments. Lacking sufficient evidential basis and consensus, the amendment group could only resolve to temporarily not address this issue in the current draft amendments.

In addition, the comprehensive revision of the Attorney Regulation Act had to address many interface coordination issues, especially when involving the powers of competent authorities; the amendment group's suggestions were inevitably restricted. For example, issues such as whether attorney examinations and training should be combined and whether salaries should be paid during the training period involved the division of powers and responsibilities among the Examination Yuan, the Judicial Yuan, and the National Bar Association. Bound by time pressure and under the premise of being unable to grasp whether relevant government agencies were willing or had the budget, the amendment group was also unable to put forward relevant amendment suggestions, resolving to shelve them and discuss them later when coordinating with competent authorities.

The author was fortunate to serve as a project assistant from the very inception of the amendment group. In addition to handling paperwork, the author also had the opportunity to participate in substantive discussions on issues. As mentioned earlier, one of the greatest difficulties in this revision of the Attorney Regulation Act was the relative lack of domestic reference literature and empirical research. The amendment group also hoped to compile relevant discussions and literature through this amendment process to serve as a foundation for the future development of the attorney system field. If "enthusiasm" was the key to giving birth to the NGO version of the draft amendments to the Attorney Regulation Act, then we hope even more that "accumulation and inheritance" can transform this enthusiasm into a self-sustaining energy, allowing the pace of attorney system reform to keep moving forward.