There are some differences in how privilege operates in civil, criminal and regulatory situations.

The Criminal Procedure Law of the People's Republic of China provides that a defense lawyer in criminal proceedings has the right not to disclose client-related information obtained in the course of representing their client unless the information indicates that the client or other persons are to commit or are committing crimes endangering national security, public security or seriously endangering the personal safety of others. This nondisclosure right also applies to government authorities, including the police, the prosecutor and the court.

For civil and regulatory proceedings, however, Chinese lawyers have a legal obligation to disclose client information if required to do so by judicial authorities and government agencies.

• The Civil Procedure Law of the People's Republic of China requires all individuals possessing knowledge of the circumstances of a case to give testimony in court. Lawyers are not excluded from this general obligation, although, in practice, it is extremely rare that lawyers are required to testify or give evidence against their own clients. Nonetheless, the existence of such a broad legal obligation renders the confidentiality of communications between lawyers and clients vulnerable.

   

• Chinese lawyers may be required to cooperate with regulatory authorities when their clients are under administrative investigations for violation of Chinese laws such as the Anti-Monopoly Law, the Anti-Unfair Competition Law and the Anti-Money Laundering Law. For example, the Anti-Monopoly Law provides specifically that:
  • The anti-monopoly law enforcement authorities may conduct interrogations of the business entity, interested parties and other relevant entities and individuals, and require such parties to provide explanations
  • Business entities under investigation, interested parties, and other relevant entities or individuals shall cooperate with the anti-monopoly law enforcement authorities as they perform their duties, and shall not refuse or impede the investigation

Lawyers are not excluded from the above cooperation obligations, although in practice it is extremely rare that lawyers are forced by the authorities to cooperate or disclose client-related confidential information.

Whether the notes of interviews with employees and other documents produced during investigations are protected under the lawyers' confidentiality obligation depends on the content of such documents. The confidentiality obligation under PRC law applies only to state secrets, commercial secrets, the privacy of their clients, and any other information that their clients or other interested parties are unwilling to disclose publicly. Second, lawyers have a mandatory obligation to disclose information relating to activities that may endanger state security or public security, or which may gravely threaten the personal safety of others. Third, when faced with a request by regulatory authorities, lawyers may be required to produce such documents to the regulators.