律师忠诚义务与保密义务的边界研究

Research on the Boundaries of Lawyers’ Duty of Loyalty and Duty of Confidentiality

摘要: 律师忠诚义务与保密义务的边界划分是法律职业伦理研究的重要议题。本文界定了两项义务的内涵：忠诚义务以当事人合法权益为核心，包含积极维护与消极不损害内容，受法律强制性规定约束；保密义务覆盖执业中知悉的当事人信息，具有豁免权属性，同时存在法定例外。分析了刑事辩护中证据真实性、历史罪行与公共利益、认罪认罚案件等典型冲突，其根源在于伦理价值对立与规范体系模糊。指出我国在义务边界上存在例外情形界定模糊、追责机制不健全等规范缺陷，以及司法实践中的相关困境，并从立法、司法、行业层面提出边界划分路径，为平衡当事人权益与公共利益提供参考。

Abstract: The demarcation of the boundaries between lawyers’ duty of loyalty and duty of confidentiality is a significant issue in the study of legal professional ethics. This paper defines the connotations of the two duties: the duty of loyalty centers on the legitimate rights and interests of the client, encompassing both active maintenance and passive non-damage, and is subject to mandatory legal provisions; the duty of confidentiality covers the client’s information known during practice, has the attribute of immunity, and has statutory exceptions. It analyzes typical conflicts in criminal defense, such as the authenticity of evidence, historical crimes and public interest, and cases of guilty plea and punishment acceptance, whose root causes lie in the opposition of ethical values and the ambiguity of the normative system. It points out that there are normative deficiencies in China regarding the boundaries of these duties, such as ambiguous definitions of exceptional circumstances and an incomplete accountability mechanism, as well as related predicaments in judicial practice. It proposes paths for boundary demarcation from the legislative, judicial, and industry levels to provide references for balancing the rights and interests of the client and public interest.