Attorney-Client Confidentiality in China: What Is and Isn't Protected

The following is general information on Chinese law, not legal advice for any specific matter. Rules and practice change from time to time, and the treatment of any situation depends on its facts; consult qualified PRC counsel before acting.

Confidentiality as a duty, not a common-law privilege

The first thing to understand is a framing difference. China does not have the common-law attorney-client privilege — the evidentiary rule that lets a client prevent the lawyer from testifying and shields the communications from compelled disclosure. What China has instead is a statutory duty of confidentiality: the lawyer owes a professional obligation of secrecy, and the Criminal Procedure Law separately confers on the defence lawyer a right to keep the client's information confidential. The practical protection is real but it is a professional and statutory obligation rather than a testimonial privilege, and it is framed around the lawyer's duty rather than the client's power to assert a privilege.

What the lawyer must protect

The core provision is Article 38 of the Lawyers Law (律师法). Its first paragraph requires a lawyer to keep state secrets and trade secrets learned in the course of practice and not to disclose a client's privacy. Its second paragraph requires the lawyer to keep confidential the information and situations that the client or others do not wish to disclose — subject to one exception. The Criminal Procedure Law (Article 48) mirrors this for the defence lawyer: the lawyer has the right to keep confidential the client's information learned in the course of the mandate. Read together, the two provisions cover the substance of the attorney-client relationship: business information, personal matters, strategy and the facts learned in the course of representation.

The exception: preparing or committing serious crimes

The exception is narrow and worth stating precisely, because it defines the boundary of the protection. The confidentiality duty does not apply to facts and information showing that the client or another person is preparing or is committing a crime that endangers national security, endangers public safety, or seriously endangers another person's personal safety. Under the Criminal Procedure Law, a defence lawyer who learns of such facts must promptly inform the judicial organs. Two points follow. First, the exception is forward-looking: it is about crimes being prepared or committed, not about crimes already completed — an ordinary completed crime does not fall within the reporting obligation. Second, the categories are specific — national security, public safety and serious harm to personal safety — so the exception is not a general duty to report everything a client discloses.

A note on the current statutory text

Anyone relying on Article 38 should use the current text. The 2007 version of the Lawyers Law described the exception as covering crimes endangering national security, public security "and other" crimes seriously endangering "personal or property" safety; the 2012 amendment removed the word "other" and the word "property", so the current text covers crimes endangering national security or public security and crimes seriously endangering personal safety — no "property" element. Quoting the older wording overstates the exception. For the criminal-defence context in which these questions most often arise, see our guide to criminal defense in China for foreign nationals.

Practical implications for clients

• Expect confidentiality, not privilege. The lawyer is duty-bound to keep your information confidential, but the framework is not the common-law privilege; do not assume an American-style evidentiary shield.
• Mind the exception. Information about a serious crime being prepared or committed — national security, public safety, serious personal harm — is not protected and may have to be reported.
• Completed conduct differs from ongoing conduct. The reporting exception is about what is being prepared or is underway, not a general duty to disclose everything.
• Put sensitive matters in writing carefully. The scope of what is covered depends on it being information learned in the course of the mandate, so keep the engagement clearly established.

The duty of confidentiality is one part of a larger set of protections a client enjoys in the relationship — including, where a client's accounts or assets are the subject of enforcement or freezing, the ability to contest the measure itself; see our guide to China bank account freezes for foreign companies. The summary above reflects the position as of the date of writing; the operative text is the current Lawyers Law and Criminal Procedure Law.