After almost two decades of implementation of the Law on Lawyers 2006, amended and supplemented in 2012, the legal framework for the management and support of lawyers and legal practice organizations has achieved many positive results, accompanying the development of the legal services industry. However, this legislation still has many limitations. Inadequacies in the understanding and application of the law, as well as some regulations that are no longer suitable for the practical development of the legal profession, ... require timely and appropriate adjustments. In this sense, this discourse focuses on contributing ideas to the Draft Detailed Outline of the Law on Lawyers, aiming to improve and enhance the effectiveness of state management of the legal profession. In order to meet the needs of the rapid development of the legal team and deep international integration, this paper will address the current management regulations, proposals to supplement the responsibilities of state agencies, as well as the limitations and challenges faced by the legal profession. In doing so, the author will provide comprehensive perspectives and recommendations to perfect the legal framework and create favorable conditions for the sustainable development of the legal profession in Vietnam.
1. State management of lawyers and law practice
Regarding the regulations on the management of lawyers and law practice, the Law on Lawyers 2006, amended and supplemented in 2012 (“Law on Lawyers”), in Chapter VII, establishes the responsibility for state management and the responsibility for self-management of social-professional organizations of lawyers. In it, the government unifies the state management of lawyers and legal practice, in addition to ministries and legal organizations. In particular, the law stipulates the authority and responsibility of the Ministry of Justice, ministries, ministerial-level agencies, people's committees of provinces and centrally-administered cities, and the coordination of management among agencies in the management and practice of law. The Draft Detailed Outline of the Law on Lawyers ("Draft") has proposed to add the responsibility of the Ministry of Justice, the Department of Justice and the authority of the People's Committees of provinces and cities; proposal to add authority to the district-level People's Committee, decentralizing this agency to conduct inspections of the organization and operation of lawyers in the area.
The addition of regulations on the authority and responsibility of government agencies is generally in line with the practice of managing lawyers and practicing law. The number of lawyers nationwide is currently increasing rapidly, along with the development and speed of deep international integration of society, which has created an urgent need to improve the efficiency and capacity of state management from the central to local levels. The spirit of the proposal will contribute to strengthening the role and responsibility of state agencies in the management process (for example: helping to strengthen inspection, investigation, handling of violations, ensuring that the organization and operation of lawyers are carried out in accordance with legal regulations). The strictness and decentralization from the central to the local level create conditions for state agencies to better implement and supervise, and thus have appropriate solutions to deal with violators, as well as violations that occur in the process of practicing law. Moreover, the reality shows that State management agencies (from the central to the local levels) still face difficulties in performing regular management tasks due to insufficient resources, especially in localities with vibrant practice activities and a large number of lawyers, such as Ha Noi and Ho Chi Minh City. More worryingly, government management agencies in some localities have not really closely supervised, cared for, and created conditions for the development of the legal profession. In addition, in many provinces and cities, the work of inspecting and dealing with violations has not been carried out regularly and is often just a formality. Therefore, the increase of authority, decentralization and delegation of power to relevant agencies will contribute to ensuring the quality of lawyer management and law practice.
However, in comparison with some current provisions of the Law on Lawyers as well as in practice, it can be seen that some proposed adjustments and additions to the Draft Detailed Outline are not appropriate.
First, regarding the way of naming the title of Chapter VII “Lawyer Management and Law Practice”, the author believes that the use of the additional phrase “and law practice” is inappropriate and needs to be simplified. Because when referring to lawyer management, the content of lawyer management activities naturally includes law practice, and vice versa, law practice management includes lawyer management.
Next, the draft proposed to add the responsibility of the Ministry of Justice in "examining and suspending the status of the president of the bar association, members of the board of directors of the bar association...". However, the Law on Lawyers stipulates that the People's Committee of the province or centrally-administered city is the competent authority to approve the project of organizing the congress (Point b, Clause 4, Article 83 of the Law on Lawyers), including the personnel plan, the personnel development plan, and the approval of the results of the congress for electing the president and members of the board of directors of the bar association. Therefore, the proposal to add the responsibility of the Ministry of Justice is inappropriate, unclear and may lead to inadequacies and overlaps in management work. As the agency that implements the state management of personnel and legal practice activities at the local level, this responsibility/authority should be given to the People's Committee of the province or city. The author believes that due to the nature of direct management, the state should formulate regulations in which it gives proactive authority to localities and aims at timely, prompt and appropriate intervention. Law practice organizations, lawyers and relevant agencies and organizations have reflected on the difficulties and shortcomings in the implementation of the provisions of the current Law on Lawyers, so when the procedural process is complicated, both management and enforcement will be difficult.
In addition, the proposal to add the authority of the district-level People’s Committee to inspect the organization and activities of lawyers is also not suitable in practice, or the following reasons:
Firstly, the Draft has not clearly defined the authority and content of the district-level People’s Committee in conducting inspections of organizational activities, nor has it defined the agency that will assist the district-level people's committee in conducting inspections. In fact, the Ministry of Justice, a specialized agency under the district-level People's Committee, is supposed to assume this responsibility. However, limitations in expertise, qualifications and authority will make it difficult for the staff of this agency to perform their duties effectively. In particular, the Ministry of Justice currently focuses mainly on simple administrative and legal advisory work. They may not be able to ensure in-depth knowledge and practical experience in inspecting and supervising the professional activities of lawyers and law firms. As a result, there is a risk that the inspections will not achieve the desired goals and will waste the resources and time of both the administrative department and the inspected entities. Some district-level People's Committees currently need to consult lawyers on legal issues arising in their work. This may reflect the limited capacity of district-level legal officials to handle complex legal issues.
Meanwhile, assigning additional inspection powers to county-level people's committees without careful preparation of human resources and coordination mechanisms will lead to overlapping management, causing inconvenience and difficulties for law firms. Specialized agencies at higher levels, such as the Ministry of Justice and lawyers' professional organizations, have more appropriate experience and expertise to perform these tasks. Appropriate alternatives are needed to ensure effective management and supervision of lawyers' activities. For example, it is possible to strengthen the role of the Ministry of Justice in inspection, while creating conditions for the participation of professional organizations of lawyers in this process. Therefore, it is necessary to consider and adjust the regulations to the reality in order to ensure the goal of improving the quality and effectiveness of legal practice in Vietnam.
Secondly, this proposal will limit the rights and responsibilities of self-management of socio-professional organizations of lawyers. Currently, law firms and lawyers are under the management of many levels from the central to local levels, including the Ministry of Justice, the Vietnam Bar Federation, and the Provincial People's Committee (Department of Justice). Adding the district-level People’s Committee (Department of Justice) to this list will put more pressure and burden on individuals and organizations practicing law, while limiting the self-management capacity of socio-professional organizations of lawyers. At the same time, such a regulation also violates the management principle when making laws, which emphasizes the combination of State management and the self-management regime of socio-professional organizations. Although understanding that the decentralization of management is intended to demonstrate the will and determination of the State in tightening management, preventing and repelling the infringement of the legitimate rights and interests of lawyers and law practice organizations, the author believes that the amendment of the law should focus on creating an open legal corridor for social-professional organizations to maximize their self-management. This spirit is also consistent with the direction of streamlining the State apparatus and the viewpoint of enhancing the role and responsibility of self-management of social-professional organizations of lawyers as in the spirit of Resolution No. 27-NQ/TW of the Party, as well as the proposal of the Draft in Article 89, which stipulates “Responsibility of self-management of social-professional organizations of lawyers”. The creation of conditions for self-management of these organizations not only reduces the administrative burden of the state, but also helps to improve the operational efficiency of socio-professional organizations, ensuring the sustainable and effective development of the legal profession in the context of international integration.
It should be noted that although the Draft still maintains the provisions on the role of self-management in Article 89 “Responsibility for self-management of social-professional organizations of lawyers”, in reality, some provisions related to the scope of this responsibility are not specific or are no longer suitable to the conditions of socio-economic development and the practice of development of the legal profession in Vietnam. Social-professional organizations of lawyers coordinate with State management agencies in the management of lawyers and the practice of law, but details on the task of coordination in implementation are not clearly defined, and there are overlapping points in the tasks and powers of State management agencies and social-professional organizations of lawyers in the management and practice of law. This is also a factor that leads to difficulties in implementation, creates a legal gap in management and limits the right to sue acts and administrative decisions that violate the right to access to the profession, to become a lawyer and to practice law of citizens and lawyers. A typical example is the Bar Association, which is both an entity subject to state management and an organization implementing a self-management regime. In the course of its activities, the Bar Association has inevitably encountered confusion and interference with the state management functions of the competent authorities when issuing documents and regulations. This not only causes confusion of tasks, but also reduces the efficiency of management.
Therefore, the author believes that it is necessary to clearly define the tasks and powers of State management agencies at the central and local levels, clarify the relationship between State management agencies and socio-professional organizations of lawyers in order to contribute to increasing the effectiveness of state management and the self-management activities of socio-professional organizations. Creating conditions for the self-management of these organizations not only reduces the administrative burden of the State, but also helps to improve the operational efficiency of the socio-professional organizations, ensuring the sustainable and effective development of the legal profession in the context of international integration. The above regulation is also consistent with the direction of streamlining the state apparatus and the viewpoint of strengthening the role and responsibility of self-government of social-professional organizations of lawyers in the spirit of Resolution No. 27-NQ/TW of the Party, as well as the proposal of the draft, which is specified in detail in Article 89, which stipulates "Responsibility of self-government of social-professional organizations of lawyers". The promulgation of a new law to replace the Law on Lawyers should focus on creating an open legal corridor for social-professional organizations to maximize their self-management.
2. Regulations supporting the legal profession and lawyers need giving more attention
In the context of economic development and deepening international integration, the challenges for lawyers and law firms are becoming more and more severe, while the legal service industry is one of the industries with many potential risks and requires the fulfillment of strict conditions during the practice process. However, the state and local governments have not paid adequate attention to the team of lawyers and law firms/offices (collectively referred to as "law firms"). This shortcoming has also contributed to the uneven development of law firms today.
Limitations in government support policies
One of the biggest challenges facing law firms in Vietnam is the lack of attention and support from government agencies. For example, Ho Chi Minh City - the economic locomotive of the country - does not currently have an incentive policy or development support program specifically for the team of lawyers and law firms in the area. This not only reduces the motivation for development, but also makes it difficult for law firms to access necessary resources such as capital, information, and market opportunities. According to statistics from the Ho Chi Minh City Department of Justice, as of July 15, 2024, the city had more than 2,800 law firms and lawyers practicing as individuals[1]. From the above practice, it can be seen that the competitive pressure among firms is very high when the supply is greater than the demand, and in the face of economic fluctuations, the competition to provide legal services will become increasingly fierce, especially for small and newly established law firms, which often face many challenges in the process of raising capital and building a network of clients. The lack of support from government agencies also causes many newly established law firms in Vietnam to face a lack of initial investment capital. Without funding programs or tax incentives, these firms often have to borrow from private sources at high interest rates, resulting in severe financial pressure and difficulties in sustaining operations and scaling up.
The issue of support for lawyers has not received much attention from the State or legislative bodies, specifically the Law on Lawyers and most recently the Draft also do not specify in detail the support policy for lawyers. The Law on Lawyers 2006, as amended and supplemented, has made some necessary adjustments at the present time. However, these adjustments are still not really comprehensive and do not fully meet the needs of the profession, nor do they effectively support lawyers. Under the current regulations, practitioners are required to meet strict conditions and standards from the probationary period until they officially practice law in Vietnam. This process takes many years but does not receive significant support from local authorities.
After many years of implementation in practice, it can be seen that the current Law on Lawyers comprehensively stipulates the responsibilities of the Ministry of Justice and the Provincial People's Committee in developing policies to support the development of the legal profession and empowering relevant state agencies at the local level, which is not feasible. Meanwhile, the Draft also does not have many changes if it continues to inherit the provisions of the Law on Lawyers, except for the provisions in Article 88 of the Draft on supporting lawyers and law firms in remote areas with support policies on taxes, land rents, or adjusting and supplementing state support in training and promoting lawyers to serve international integration. We believe that these provisions need to be more specific and detailed in order to clearly define the responsibilities of the relevant government agencies in this regard.
General support policies can be two-sided
The State's general support policies for Vietnamese law firms can be two-sided, especially in the context of the increasing penetration of international law firms into the Vietnamese market. These policies bring many opportunities, but also many challenges, especially in the competition between local law firms and foreign law firms in Vietnam, and between consulting firms and professional law firms.
International law firms often have advantages in experience and financial resources, creating a significant gap in service delivery compared to domestic law firms. Multinational law firms such as Baker McKenzie, A&O Shearman, or Tilleke & Gibbins have established offices in Vietnam and quickly captured a large market share due to their reputation and global network. These firms have staffs of up to several hundred people, enabling them to provide high-quality legal services that meet international standards and the needs of multinational clients. The large number of employees enables these firms to handle complex and diverse legal matters that are difficult for domestic law firms to handle. Not to mention the numerous foreign and domestic firms providing legal services under the name of consulting firms, which are growing rapidly and on a large scale. In contrast, Vietnamese law firms often find it difficult to compete and retain clients due to their small size and lack of resources. The difference lies not only in size and resources, but also in access to information and markets. International law firms have global information networks and experience working with many multinational clients, while domestic law firms are often limited by resources and domestic client networks.
Therefore, if not carefully considered, government support policies may only be suitable for small, medium or newly established law firms. Large law firms with strong potential may not really benefit from these policies. It is believed that the above provisions can also be expanded to recognize general policies, including tax incentives, and give local government authorities (Provincial People's Committees, Departments of Justice) the power to issue separate regulations depending on the development of the legal sector in that locality. For example, Article 88 of the Draft will not only regulate the development of tax and land lease support policies for law firms in remote areas, but may also supplement general incentives for lawyers and law firms nationwide, with the level of incentives determined by the local authority. Such regulations will help to make support policies more flexible and appropriate to the realities of each region. In conclusion, the support policy for lawyers and law firms in Vietnam needs to be designed in a comprehensive and flexible way to both seize the opportunities of international development and integration and help domestic law firms improve their competitiveness.
In addition, focusing on the training and promotion of lawyers is a key factor in ensuring the sustainable and effective development of Vietnam's legal sector. To improve the quality of domestic lawyers and law firms, it is necessary to vigorously implement programs to support the training and promotion of lawyers to serve international integration. A typical example is the Judicial Academy's Lawyer Training Program to Serve International Integration, which has been implemented since 2017. This program has trained many generations of lawyers with good professional skills, excellent foreign language skills, and deep understanding of international law. These lawyers have provided effective support in cases and disputes involving foreign elements, and have contributed to improving the reputation and quality of Vietnam's legal services in the international arena. However, it is not enough to rely solely on a Judicial Academy program. This training and development policy needs to be expanded, not only focusing on the Judicial Academy curriculum, but also supporting other professional social organizations such as the Vietnam Business Lawyers Club (VBLC) and provincial and city bar associations. These organizations need support in organizing lawyer training courses for international integration, which will help improve the capacity and skills of domestic lawyers. For example, the VBLC has taken initiatives in organizing seminars and courses on international commercial law to help lawyers update their knowledge and skills in handling complex cases with foreign elements. The Bar Association should also be encouraged and supported to facilitate the participation of lawyers in specialized training courses to help them master the latest international legal trends and regulations. Cooperation with international law firms is also an important direction. Vietnamese law firms must seek opportunities to cooperate and exchange experiences with leading law firms around the world. This not only helps to improve the professional qualifications of Vietnamese lawyers, but also expands the international network, creating new opportunities for the development of the domestic legal sector. Finally, state support in terms of funding and favorable policy mechanisms for lawyer training and development programs is essential as one of the top priorities to ensure that the Vietnamese legal sector can meet the challenges of the integration and development process. These steps will help Vietnamese law firms and lawyers not only to improve their competitiveness, but also to consolidate their position in the international legal market, thus ensuring the sustainable and effective development of the legal industry.
In addition, strict control over the activities of foreign law firms and consulting firms operating under the name of law firms in accordance with the provisions of the Law on Lawyers and related regulations will help improve the Vietnamese legal market, create a fair and transparent playing field for all parties, and help domestic law firms develop strongly in the coming period.
It can be seen that the Draft has added responsibilities and powers to state agencies in order to improve the effectiveness of lawyer management and lawyer activities. However, some proposals are not entirely appropriate and need to be reconsidered to avoid overlapping and complicating the management process. In addition, support policies must be flexible, suitable for each locality, and promote the spirit of self-management of social and professional organizations of lawyers. In order for the Vietnamese legal industry to develop strongly in the context of international integration, there must be comprehensive support measures, from training and promotion to preferential policies in professional practice, and above all, a transparent and equal development environment among legal business units. Only then can domestic lawyers and law firms effectively seize opportunities, overcome challenges, and develop sustainably in the context of global integration.
The news uses images from the Communications Department, Ho Chi Minh City University of Law. HM&P Law Firm sincerely thanks for the team.
[1] List of lawyers practicing in an individual capacity and law-practicing organizations operating in Ho Chi Minh City is updated to July 15, 2024, [ https://s.net.vn/hTL5], retrieved July 24, 2024.
