律师忠诚义务的法律职业伦理困境及其应对

Legal Professional Ethics Dilemmas of Lawyers’ Duty of Loyalty and Their Responses

摘要: 律师职业伦理既涉及法律人的道德形象，也涉及今后法律行业的发展前景。自律师制度恢复以来，我国律师职业伦理不断发展，律师对当事人的忠诚义务逐步确定为首要伦理并不断强化，但在司法实践过程中仍面临律师不履行忠诚义务抑或履行行为超越义务边界的困境。为解决由此造成的忠诚困境，文章在厘清律师职业伦理以及忠诚义务的内涵基础之上，结合司法实践中出现的忠诚困境实例，从律师的双重角色身份以及惯例之下遵循的双中心模式两个角度予以剖析根源，从而得出明晰律师定位、强调忠诚义务的第一性、把握忠诚义务合理限度的应对之策。

Abstract: Lawyers’ professional ethics involve not only the moral image of legal personnel, but also the future development prospects of the legal profession. Since the restoration of the lawyer system, the professional ethics of lawyers in China have continued to develop, and lawyers’ loyalty obligations to their clients have been gradually determined as the primary ethics and continuously strengthened, but they still face the dilemma of lawyers not performing their loyalty obligations or performing beyond the boundaries of obligations in the process of judicial practice. In order to solve the resulting loyalty dilemma, this paper analyzes the root causes from the perspective of the dual role identity of the lawyer profession and the bicentric model followed under the practice on the basis of clarifying the connotation of lawyers’ professional ethics and loyalty obligations, combined with the examples of loyalty dilemma that appear in judicial practice, so as to seek a clear solution to clarify the positioning of lawyers, emphasize the primacy of loyalty obligations, and grasp the reasonable limits of loyalty obligations.