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  Thailand Articles

15 Feb 2008 20:31:10 GMT
New Page 1

Attorneys And Attorney-Client Privilege In Thailand

Thailand, with its King as Head of State, bases its judicial and legal system on the democratic nation’s Constitution, which recognizes four courts: the Constitutional Court, the Courts of Justice, the Administrative Court, and the Military Court.

 

The Courts of Justice are classified into three levels: the Courts of First Instance, the Courts of Appeal, and the Dika Court (Thailand’s Supreme Court).

 

The Courts of First Instance are trial courts that consist of general courts, juvenile and family courts, and specialized courts. All cases

commence at a Court of First Instance.

 

Appeals against Court of First Instance judgments shall be filed with the Court of Appeals, subject to certain restrictions.

 

The Supreme Court has jurisdiction over cases appealed from the Court of Appeals, subject to certain restrictions provided by the Civil

Procedure Code, Criminal Procedure Code, and other Procedure Codes for the specialized courts, i.e., the Labor Court, the Tax Court, the Intellectual Property & International Trade Court, and the

Bankruptcy Court.

 

Thailand generally follows the civil law system. However, one must realize that Thailand belongs to the civil law system only by the fact of its codification. The contents of the codes are as varied as the major legal systems of the world.

 

Lawyers: Membership, Requirements, and Regulations

The Lawyers Act B.E. 2528 (A.D. 1985) defines a lawyer as “a person who has been registered as a lawyer, and a license has been issued to him or her by the Law Society of Thailand”. Therefore, no one can become a lawyer or practice law in Thailand without an education in law, registration, and a license to practice. Unlike the United Kingdom, lawyers in Thailand are not divided into barristers and solicitors, nor are they (yet) required to pass a bar examination, as they would

Be, for instance, in the United States.

 

It’s important to note that, notwithstanding the value of the counsel offered, a “legal advisor” is not a lawyer. Confidential communications with a “legal advisor” are not protected by attorney-client privilege except as noted below, and a “legal advisor” may not represent a client in a Thai court.

 

The Law Society of Thailand operates to promote, educate, and supervise its members. To become a member of the Law Society of Thailand, an individual must meet certain educational requirements and be a lawyer as defined in the Lawyers Act. Educational requirements for membership in the Law Society of Thailand are that a candidate must have obtained a bachelor’s degree in law (LL.B), or an associate degree in law, (or a certificate in law equivalent to a bachelor’s degree or associate degree), from an educational institution accredited by the Law Society of Thailand. Further, the individual must also be a member of the Thai Bar Association.

 

To be registered and to obtain a lawyer’s license, in most cases the candidate must complete training in professional ethics and the basic principles of advocacy and the legal profession. The training course, run by the Institute of Law Practice Training of the Law Society of Thailand, is usually divided into two terms.

 

  • In the first term, the candidate has to learn the theory of case

management and professional ethics for ninety hours.

 

  • In the second term, he/she must practice working in a qualified law office for at least six months. An examination will be held at the end of each term. After completion of the training course, a candidate may apply for membership in the Law Society of Thailand. An exception to the training course is given to candidates who have been an apprentice in a law firm for over a year and have passed an examination specified by the Board

of Governors of the Law Society of Thailand.

 

Being a member of the Law Society of Thailand means a lawyer (member) must abide by the code of ethics, called the Regulations of the Law Society of Thailand on Lawyer’s Ethics B.E. 2529 (A.D. 1986), which are overseen and supervised by the Committee on Professional Ethics. The types of professional and ethical conduct described are:


 

(a) ethical conduct in court and towards the court, which generally means a lawyer can not refuse to represent a defendant when asked to do so by a judge in a criminal case UNLESS the lawyer has a justifiable reason, or act in any way that shows disrespect to the court, or act in contempt of court or a judge, and/or cooperate directly or indirectly to forge documents or evidence.

 

(b) ethical conduct toward the client: a lawyer can not encourage litigation without justifiable cause, threaten and/or mislead the client, and/or make false promises and/or reveal client’s secrets and/or abandon a case intentionally.

 

(c) ethical conduct toward fellow lawyers: a lawyer can not try to take another lawyer’s client UNLESS there is consent by the previous lawyer, or there is justified cause to believe that the client has already withdrawn the former lawyer, or that the former lawyer has already rejected the client’s case.

 

(d) ethical conduct toward litigants in general: a lawyer can not make promises to people or pay them to bring in clients or to advertise legal service fees, or to advertise in a boastful way names, qualifications, position, residence, or office.

 

(e) ethical conduct in personal behavior: a lawyer should not behave contrary to good morals or jeopardize the good name of the legal profession.

 

(f) appropriate attire: a lawyer shall dress modestly. A male lawyer shall wear suits of solid and somber colors (e.g., white, black, gray, blue); a female lawyer shall wear dresses in modest solid colors.

 

All members of the Law Society of Thailand must abide by the above regulations. A breach constitutes professional misconduct. If any lawyer violates any of the regulations, it may result in any of three types of penalties: probation, suspension of practice not exceeding three years, or deletion of name from register.

 

A lawyer’s license is usually valid for two years from the date of issuance. Such a license can be renewed within ninety days prior to the expiration. To avoid periodic renewal, lawyers may apply for “lifetime membership”. Regarding termination of a lawyer, the following can result in a lawyer’s loss of membership in the Law Society of Thailand:

(1) death;
(2) notification of termination of practice;
(3) failure to renew lawyer’s license;
(4) removal of name from register; or
(5) disbarment.

Attorney-Client Confidentiality

There is an attorney-client privilege protecting substantive disclosures between an attorney, including patent attorneys, and staff in a law firm, and client. There is no discovery, as the term is used in western practice, as part of civil procedure in Thailand. The privilege would apply in the case of a discovery request/order in connection with a foreign litigation, and a member or attorney in a Thai law firm could not voluntarily disclose any communications unless ordered to do so by a Thai Court.

 

Foreign judgments and foreign court orders are generally not enforceable in Thailand.

 

The scope of the privilege is broad and covers all communications between attorney and client. The privilege arises as a result of provisions of criminal law and a separate code governing attorney ethics, called the Rules of the Law Society for Lawyer Ethics. Section 323 of the Thai Penal Code prohibits disclosure of a private secret of a client by an attorney or other professional, violation of which could lead to a fine and/or prison sentence.

 

By virtue of Section 27(3) and Section 51, with consent of the Council of the Law Society under Section 28 of the Lawyers Act B.E. 2528 (A.D. 1985), the Board of the Law Society has issued the Rules on Lawyer Ethics as follows:

 

Article 4: Any lawyer who violates or does not comply with any of the Rules hereinafter shall be deemed guilty of misbehavior.

 

Article 11: Disclosure of a client secret obtained while a lawyer acts on behalf of a client is prohibited unless the client consents or a [Thai] court orders the disclosure.

 

 


 
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