by Paula Hsiao Yun Ling, Practicing Attorney of Macao and Lecturer with the Law Department of Macao University

Lawyers in Macao are not government employees, but professionals. There is no hierarchy among them. It is natural for those lawyers with experience, good character and high prestige to receive great respect from society and from their colleagues. However, they are completely equal to all of their peers in the practice of law.

Like lawyers in the Hong Kong S.A.R, lawyers in Macao are also styled either barristers (advogado in Portuguese) or solicitors (solicitador in Portuguese). "Barrister" refers to a lawyer in the commonly-used sense: one who can deal with litigation and transactional affairs, while a "solicitor" is, in fact, not a lawyer at all. The proper tittle should be "legal agent" or "legal assistant." The legal profession as referenced in this article means the barrister in practice in Macao at present.

For a lengthy period, the legal profession in Macao had been monopolized by overseas Portuguese and locally-born Portuguese. The official language of Macao is Portuguese; therefore, laws are enacted in Portuguese, and court records are maintained in it. There were no law schools in Macao before 1988; thus all legal professionals were graduates from Portuguese law schools. In early times, most lawyers in Macao were locally-born Portuguese. They lived in Macao for generations, went to Portugal to study law, and came back to Macao to practice law after their graduation. In 1962, the validity of the Portuguese Judicature Statute of the Overseas Territories extended to Macao. Under the Statute, the bachelors of law graduating from Portuguese law schools could become practicing lawyers after they were registered in the court in Macao which was responsible for supervising their practice.

In the early 1980s, many bachelors of law who were native Portuguese came to Macao to make a living, and many of them became government officials. Later, when the economy in Macao developed rapidly, some of these government officials resigned and entered the legal profession. Among these Portuguese lawyers practicing in Macao, some were registered in the Portuguese Bar Association, in accordance with Portuguese Law and were under its supervision, but others were not.

With the increase in the number of practitioners in the legal profession, and in view of the repeal of the above statute by the Portuguese legislature in 1984, the Macao government decided after discussion to adopt the Portuguese traditions of the professionals ". The government provided general guidelines for the legal profession. Specific matters, such as the practice of law and the protection of lawyers’ interests were to be provided for by the bar association, composed of the practitioners of law. Therefore, the Macao governor enacted the Lawyers' Statute in the form of a decree; this was amended in 1992 and 1995. After that, the Macao governor enacted another one in 1992, and, in 1995, the Lawyers' Deontological Rules and the Disciplinary Code for Lawyers. These were submitted for ratification by the Macao Lawyer’s Association. These three legal documents established the basic framework for the subsisting legal profession in Macao.

In accordance with the above statute and codes, the current legal profession in Macao mainly consists of:

A. Administrative Institutes

Under the Lawyers' Statute, the lawyer administrative institutes are the Lawyers' Association and the Lawyers' Superior Council.

a. The Lawyers' Association

The Lawyers' Association is an independent social corporate institute, admission to whose ranks is voluntary. Its main responsibilities are to cooperate with judicial officials to safeguard citizens’ legal interests; to provide the standards for the practice of lawyers; to examine, approve and grant the qualification certificate to lawyers and articled clerks; to encourage lawyers to observe standards of professional ethics; to safeguard lawyers’ legal interests insofar as such interests are not inimical to public policy; and to raise the citizens’ awareness of the law. For these purposes, the Lawyers' Association has the power to promulgate and revise its own regulations and the Lawyers' Deontological Rules; to keep on file and maintain records for the compulsory registration of lawyers; to devise the curricula for and provide instruction in the practical training courses for lawyers; to draft the Lawyers' Disciplinary Code and proposals for its revision. The Lawyers' Association incorporates the General Assembly, the Board of Directors and the Budget Council.

The General Assembly consists of all registered lawyers. It makes decisions on the major issues confronting the association. The Board of Directors, composed of seven members, is in charge of executing the decisions of the general assembly, conducting the daily routine of the association, administering the association' s property, and admitting, suspending and dismissing members in accordance with the association's regulations. The Budget Council is made up of three members who are responsible for supervising the Association's operation and expressing its opinions in the Association's annual report and accounts.

b. The Lawyers Superior Council

The Lawyers' Superior Council is an organization with the exclusive power to discipline attorneys. It consists of six lawyers, a judge, a prosecutor and a person appointed by the Governor of Macao. The main function of the Council is to be in charge of discipline and the personal integrity of lawyers and articled clerks, and to examine whether applicants for the attorney roll are endowed with the requisite degree of personal integrity required for the practice of law.

B. Admission as Lawyers

Under the Lawyers' Statute, the precondition for admission to the legal profession is award of a Bachelor’s of Law Degree. In addition to bachelors of law graduating from the law school of Macao University, bachelors of law from other universities can also seek admission to the legal profession, after receiving special training. In order to ensure that bachelors of law who are not graduates from Macao Universities are familiar with and have a good grasp of Macao law, the statute requires such persons to take an Orientation Course, which will familiarize them with the Macao legal system, before they take the Special Training Course for the Practice of Law. Law instructors who have obtained a Master’s of Law Degree or higher and who have taught in Macao University for more than two years, Macao judges, prosecutors, the Master of the Rolls, and the public notaries who receive a "good" performance evaluation from their supervisors can register as lawyers without taking the special training course after they leave their positions.

The above two courses are both established by the Macao Lawyers' Association. The study period for the Orientation Course is determined by the Lawyers' Association based on various criteria, but it should not be less than 12 months, nor more than 15 months. Under special circumstances, if the legal courses taken in law school are similar to the laws in effect in Macao (for instance graduates from Portuguese law schools), the association will shorten the study period to 3 months. In 1998, the Macao Lawyers' Association and Macao University entered into a cooperation agreement per the terms of which the Introductory Macao Law Course has the same effect as the Orientation Course and those who have completed the former can apply to the Association for the Special Training Course for the Practice of Law.

Specific provisions exist for the Special Training Course for the Practice of Law in the Regulations for Admission as Lawyers. According to these, the training course shall last for 18 months, and there are to be two such courses every year, which commence in March and November, respectively. Such courses comprise two parts: one theory, the other practice. The theory part mainly focuses on the Lawyers' Deontological Rules, the registration of lawyers, and the practice in notarization, civil and criminal litigation. In the practice phase, students, under the supervision of the instructing lawyer, go to law firms to gain experience in dealing with legal affairs.

The Lawyers' Statute also provides that the Bachelor's of Law Degree shall not be required for a legal agent. Any graduate from high school who has a general knowledge of law and has passed the examination administered by the court can be registered as a legal agent. In recent years, there has been no discernible increase in the number of legal agents. Transitionally there are no special regulations governing legal agents, nor does the Lawyers' Association have power to administer them.

C. Main Rights and Responsibilities

The Lawyers' Statute provides that Macao lawyers enjoy some basic rights while practicing law, including:

a) Dignity

Judges, law executors and government officials shall ensure that lawyers are accorded a level of professional dignity commensurate with their status and are provided proper help to their work. During hearings and trials, lawyers shall have special seats and do not need to stand up when addressing the court.

b) Exemption from Supervision

Lawyers have the right to personally interview, at any time, and with no official supervision their accused clients who are incarcerated or in police custody.

c) Discovery

Lawyers have the right, without any special authorization, to request, orally or in writing, any court or public organs to provide case files, records and documents which are not reserved or confidential, and have the right to ask such organs to issue certificates attesting to the truth of certain facts.

d) Priority

Lawyers are entitled to the priority in talking to the government officials.

e) Protection against Search

If law firms or their case files are searched, such a search shall be conducted only upon an order or warrant issued by a judge, and the judge shall advise the lawyers involved or one of the directors of the Lawyers' Association to be at present at the scene. Letters of lawyers related to their practice of law shall not be seized unless such letters relate to the activities of lawyers suspected of criminal complicity.

In conformity with these rights, the Lawyers' Statute also provides obligations and duties which shall be strictly observed by lawyers, including:

a) To Provide Legal Assistance

Lawyers shall help citizens protect their legal rights and accept cases by court appointment, and for which the court provides assistance.

b) To Uphold the Law

Lawyers shall uphold the law; shall not argue against anything specifically provided by law; shall not handle cases in an illegal way; shall not take any measures to delay, hinder or obstruct legal proceedings; shall not do anything unfavorable to the proper application of the law or to the discovery of the truth; shall protest against any act violating human rights and any unreasonable or arbitrary judgments.

c) To Protect Traditions

Lawyers shall observe the customs and traditions of the legal profession.

d) Not to Hold Concurrent Jobs

Lawyers shall not hold concurrent jobs which impair the independence of the practice of law.

e) Miscellaneous Responsibilities

Lawyers shall, inter alia, conscientiously train articled clerks; wholeheartedly serve their clients' interests; and avoid conflicts of interest by subsequent representation of an opposing party.

In the Lawyers' Deontological Rules, there are also provisions on confidentiality. Lawyers, their partners and their assistants shall all protect the confidential documents of their clients in order to observe the duty of confidentiality. Moreover, under the attorney-client privilege and work product doctrines, lawyers have the right to refuse to testify to judicial organs as to facts disclosed to them by their clients or discovered through their own efforts. Testimony or materials provided by lawyers in violation of the duty of confidentiality may be admissible but non-conclusive. Furthermore, according to the Rules, lawyers shall not, through public media or in public places, comment on or discuss with others cases which are being heard or which are to be filed with a court.

The Lawyers' Statute provides that the Lawyers' Superior Council shall take disciplinary measures against lawyers or articled clerks who violate the disciplinary regulations, either on its own initiative, or via written complaints or accusations filed by persons having knowledge of such matters.

The Lawyers' Disciplinary Code provides specific procedures for the Council to follow. It provides reasonable time limits and ensures the integrity of the principle of defense, under which lawyers can either defend themselves or retain other lawyers to defend them. If they fail to do so, the Council, on its own initiative, shall appoint lawyers to make such defense. In any case, the procedures are strictly based on the adversarial system; otherwise, they would be ineffective in whole or in part.

The proceedings for taking disciplinary measures against lawyers are to be commenced by the Lawyers' Superior Council. After the Lawyers' Association or any third party files a complaint or an accusation, the Chairman of the Council shall order a preliminary investigation undertaken to substantiate the truth of the complaint or accusation before submitting it to the Council. If the facts as elicited demonstrate that the infraction is not serious enough to warrant punishment, the chairman shall refuse to accept the complaint or accusation, and shall inform the person making the complaint or accusation of the reasons for the refusal. If that person does not accept the Chairman’s refusal, he shall make an objection to the Council. Before the Council reaches a decision, all matters involved shall be kept secret. After the preliminary hearing and hearing on the merits, if a finding is made of a violation of professional ethics, the Superior Council of Lawyers shall take proper disciplinary measures against the violator, such as a warning, reprimand, fine of no more than 100,000 Macao Patacas, or suspension of license for from 10 days to 15 years. If the lawyer thus punished, any other person involved or the Lawyers' Association wishes to contest the Council’s decision, they can submit an objection to the Council or appeal to a court of competent jurisdiction.

According to the record of the Lawyers' Association in December 1998, in Macao, there are 85 registered lawyers and 8 articled clerks among whom 26 can speak Cantonese (only 5 can write in Chinese). Compared with the localization of judicial officials, the localization of lawyers in Macao develops very slowly. This is because the localization of judicial officials is enhanced by the government, whereas lawyers are independent professionals. Although the Macao Lawyers' Association has laid some foundation for the localization of lawyers, it has not worked out any effective way to speed up the training of local bilingual lawyers.

At present, the economy in Macao is so depressed that there are not many business activities. The demand for lawyers decreases correspondingly. Many registered lawyers have applied to the Lawyers' Association for the suspension of their licenses and have switched to other professions. That is why the number of registered lawyers has dropped from over 100 to 85. In addition, the Lawyers' Statute prohibits government officials from holding a concurrent job as a lawyer or an articled clerk, in other words, the present government officials cannot take the Special Training Course for the Practice of Law". In that case, many bachelors of law who are serving in the government do not have a chance to practice law unless they give up their jobs or ask for a period of leave without payment, i.e., give up their regular income. Therefore, it is believed that few people would take that risk since the legal profession is so depressed in Macao at present.

All in all, lawyers are professionals. The demand for such a profession is dictated by marketing forces. Its promotion depends on the economic development and prosperity in Macao.