[author]WU Hongqi

[content]

The Mechanism and Roots of Sequential Conflicts between Legal Aid Defense and Entrusted Defense

WU Hongqi

Law School of Peking University

Abstract: In recent years, there have been frequent conflicts between legal aid defense and family entrusted defense in a series of influential cases. This phenomenon has dealt a significant blow to the traditional principle of Client Priority established in China, and has also had a negative impact on the credibility of judicial organs and the public welfare of legal aid. We can summarize the ecology of conflicts between legal aid defense and entrusted defense from a series of typical cases. The formation of the conflict is based on the information isolation between the suspect and the defendant, and the asymmetric information between the suspect/defendant, their close relatives and their entrusted lawyers provides conditions for the conflict. Fundamentally speaking, the conflict between legal aid defense and entrusted defense is a product of the conflict between the excessive enthusiasm of the entrusted lawyer for defense and the smooth handling of the case by the investigating party. It is the result of the conflict between the loyalty obligation of the lawyer and the public interest obligation. Overly enthusiastic defense by lawyers cannot be prohibited solely from the perspective of disciplinary systems, but should also be alleviated from the perspectives of defense rights protection and procedural sanctions.

Key words: legal aid lawyer; loyalty obligation; zealous defense ; information isolation

 

Introduction

In recent years, there have been frequent occurrences in a series of criminal cases with significant social impact where lawyers entrusted by close relatives are unable to intervene in the case in a timely manner due to the fact that the investigating authorities have already or are preparing to assign legal aid lawyers, such as the arson case of a nanny named Mo in Hangzhou (hereinafter referred to as the "Mo case") and the suspected murder case of Lao in Jiangxi (hereinafter referred to as the "Lao case"), resulting in the problem of conflicts between entrusted lawyers and legal aid lawyers. This phenomenon should not have occurred because the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the "Criminal Procedure Law") promulgated in 1979 had already established the basic principle of prioritizing entrusted defense. Article 27, Paragraph 1 of the Criminal Procedure Law promulgated in 1979 stipulates: "In cases where the prosecutor appears in court for public prosecution and the defendant has not appointed a defense counsel, the people's court may appoint a defense counsel for him. Subsequently, this principle has been continuously strengthened through various amendments to the Criminal Procedure Law and relevant rules such as the Legal Aid Regulations. However, this conflict has repeatedly occurred in several influential cases in recent years, arousing the attention of the legal community and the public to related issues. This phenomenon, known as "pit occupying defense" by the legal profession, has also sparked criticism from academia regarding related practices. In response to this issue, some scholars have confirmed and emphasized the basic principle of "entrusting defense before legal aid defense". At the legislative level, the "Legal Aid Law of the People's Republic of China" (hereinafter referred to as the "Legal Aid Law") implemented in 2022 and the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" (Fa Shi [2021] No. 1, hereinafter referred to as the "Judicial Interpretation of the Criminal Procedure Law") implemented in 2021 have also provided detailed provisions on this issue, re emphasizing the principle of prioritizing entrusted defense and respecting the opinions of the defendant in resolving conflicts between lawyers entrusted by close relatives and legal aid lawyers.

If a strange phenomenon only occurs in one case, it may be an accidental phenomenon, but if it repeatedly occurs in many cases, there must be some inevitable factors behind it. Therefore, it is necessary to ask why conflicts between appointed lawyers and legal aid lawyers still occur frequently in judicial practice when the principle of priority for entrusted defense is clearly stipulated in laws such as the Criminal Procedure Law and the Legal Aid Law? Can these theoretical arguments and legislative and judicial interpretations effectively respond to and prevent similar conflicts from occurring? To answer this series of questions, it is necessary to delve into the formation mechanism and root causes of conflicts between legal aid lawyers and commissioned lawyers.

1. Analysis of the Sequence of Legal Aid Defense and Commissioned Defense

To truly understand the conflict between legal aid lawyers and commissioned lawyers, it is necessary to delve into these cases to observe the process of conflict formation and summarize the common problems that exist in these cases. Therefore, this article selects four typical cases in which this phenomenon has occurred in recent years for investigation. These four cases are respectively the "Mo case" in Hangzhou, Zhejiang, the "Lao case" in Nanchang, Jiangxi, the "Zhou case" in Changsha, Hunan, and the "Xu case" in Lianyungang, Jiangsu. As shown in Table 1, in these cases, the conflict between the legal aid lawyer and the appointed lawyer is not actually a conflict between the legal aid lawyer and the lawyer directly appointed by the defendant. More precisely, it is mainly manifested as the order issue between the lawyer appointed by the close relatives on behalf of the defendant and the legal aid lawyer appointed by the case handling authority. According to Article 34 of the Criminal Procedure Law, suspect have the right to entrust defenders from the date of the first interrogation or compulsory measures taken by the investigation organ. If a suspect or defendant is in custody, his guardian or near relative may also act as a defender on his behalf. However, lawyers entrusted by close relatives need to meet with the suspect and the defendant to sign the entrustment agreement before the entrustment relationship can be formally established. The lawyer entrusted by a close relative is obstructed in the process of meeting, and the reason for the obstruction is that the case handling agency has appointed a legal aid lawyer for the suspect or defendant. As a result, the issue of conflict between legal aid lawyers and appointed lawyers has arisen.

1.1 Common elements of conflict between legal aid lawyers and commissioned lawyers

By summarizing these four cases, the following five common characteristics can be identified.

Firstly, these four cases all belong to cases that have a certain impact in the region or even nationwide. This type of case is also known as a "public case" and has a similar concept in the Criminal Procedure Law, such as major and difficult cases, whose characteristics often result in special treatment in case handling. Firstly, due to the widespread attention this type of case receives, it will receive special attention in the criminal litigation process. For example, Article 213 of the Judicial Interpretation of the Criminal Procedure Law stipulates which cases require the participation of people's jurors in the trial, and one of them is cases with significant social impact. Moreover, Article 216 of the Judicial Interpretation of the Criminal Procedure Law also stipulates that cases with significant social impact can be submitted to the adjudication committee for decision. Secondly, influential cases often have great appeal to criminal defense lawyers nationwide. Many lawyers pay attention to such influential cases and hope to gain their social and professional reputation through them. These four cases are all influential cases, so they will receive high attention from public opinion, correspondingly, they will also be highly valued by the investigating authorities, and will also receive attention from the legal profession. Finally, it should be noted that whether a case becomes an influential case requires certain conditions. Some cases may not initially be influential cases, but with the intervention of the media, they may become influential cases.

Secondly, the defendants in all four cases are in custody. Due to the defendant being in custody, they are unable to hire a lawyer on their own and can only have their close relatives hire a lawyer on their behalf or apply for legal aid. Due to this detention status, the willingness to entrust a lawyer or apply for legal aid cannot be directly expressed, and can only be conveyed through detention center staff or other investigators. As mentioned earlier, the so-called conflicts in the four cases initially occurred when lawyers appointed by close relatives applied for a meeting. Because the lawyer entrusted on behalf needs to obtain his/her own authorization by applying for interview, but he/she was hindered in the first interview because the suspect or defendant has been assigned or is ready to be assigned a legal aid lawyer. Therefore, to a certain extent, it can be said that the defendants in all four cases are in a state of isolation from the outside world, which is an important reason for the conflict between the appointed lawyer and the legal aid lawyer.

Thirdly, the main conflicts in these four cases occurred between the appointed legal aid lawyer and the lawyer appointed by close relatives. The lawyer appointed by close relatives often precedes the appointment of legal aid lawyers, or at least in some cases, the lawyer appointed by close relatives precedes the appointment of legal aid lawyers.

Fourthly, in these four cases, the lawyers entrusted by close relatives are mainly lawyers from other places. For example, in the case of Mo, Mo initially hired a party lawyer from Guangzhou, and later hired two lawyers, one from Beijing and the other from Shanghai. The two lawyers entrusted by Lao's close relatives are both from Beijing. The two lawyers entrusted by the "Xu case" are lawyers from Shanghai, and one of them is also a defense lawyer for the famous "Zhang case" in Shaanxi. In the first instance of the case of Zhou, his close relatives entrusted lawyers from a local law firm in Hunan, but in the second instance, they entrusted lawyers from a well-known legal team in Beijing. So except for the case of Zhou, most of the lawyers entrusted by close relatives are from other places, and these lawyers from other places have certain influence in the industry. Legal aid lawyers are mainly local lawyers, who are notified by the case handling authorities and appointed by local legal aid agencies.

Fifthly, there are many commonalities in the subsequent handling of conflicts between lawyers entrusted by close relatives and legal aid lawyers. The first instance of the "Mo case" was defended by a legal aid lawyer, but the second instance was defended by a lawyer commissioned by a close relative. The same applies to the case of Lao, where the first instance was defended by a lawyer with legal aid, and the second instance was defended by a lawyer commissioned by a close relative. In the case of Zhou, the first instance was also defended by legal aid lawyers, and the second instance was defended by lawyers commissioned by close relatives. The conflict in the "Xu case" in Jiangsu mainly occurred in the second instance, so in the end, the lawyer voluntarily withdrew and was defended by a legal aid lawyer. But in the first instance of the case, Xu was defended by a lawyer commissioned by his close relatives.

The above five characteristics generally outline the basic points of the occurrence of such phenomena, including case types, nodes of conflicts, subjects of conflicts, temporal order of conflicts, and post event handling methods. To a certain extent, it is precisely these commonalities that constitute the key elements of conflicts between legal aid lawyers and lawyers commissioned by close relatives in these cases. To alleviate and eliminate the occurrence of such conflicts, it is necessary to have a deep understanding of these key elements and the reasons behind their formation.

1.2 The Harm of Conflict between Legal Aid Defense and Commissioned Defense

First, this conflict may infringe upon the autonomy of lawyers entrusted by suspect and defendants, thus affecting their effective defense. In terms of case handling, the ability to obtain effective and independent defense is an important factor in the fair handling of criminal cases. This effective and independent defense is based on the defendant's independent choice of defense counsel. Ensuring the defendant's independent choice of defense counsel is beneficial for the formation of a mutual trust relationship between the defendant and their defense counsel. The effective defense of the defendant requires sufficient communication and trust between the defendant and their defense counsel. The conflict between legal aid defense and commissioned defense makes it difficult for lawyers appointed by the defendant's close relatives to intervene in the case in a timely manner, and even to have the opportunity to meet with the defendant. This will to some extent affect the defendant's autonomy in appointing lawyers.

Secondly, such conflicts may raise doubts about the fairness of the litigation process among the close relatives of the defendant and even the entire society, thereby affecting the credibility of China's judicial organs in handling cases fairly. From the perspective of fairness in criminal proceedings, allowing the defendant to choose a defense lawyer is very important. For the defendant and their family members, if the lawyer appointed by close relatives cannot intervene in the case in a timely manner, it is easy to raise doubts about the fairness of the case handling process, which may lead to dissatisfaction with the substantive results of the case. More importantly, as these cases are all cases with significant social impact, the occurrence of such conflicts in the case will raise doubts among the public about the abnormal phenomenon of legal aid lawyers taking priority over lawyers entrusted by the defendant's close relatives to intervene in the case in advance, thereby raising significant doubts about whether the defendant can independently choose a defense counsel and whether the case as a whole has been fairly handled. If such phenomena occur frequently, it will lead to doubts among the public about the overall credibility of the judicial organs.

Finally, the continued occurrence of such conflicts will erode the public welfare foundation of China's legal aid system, which may lead to significant questioning of the public welfare nature of China's legal aid system by the entire society. The legal aid system is a safeguard system that guarantees basic needs and provides financial assistance. Legal aid services are necessary if the applicant has not appointed a defense or representative and meets the criteria of financial difficulties. At present, the state encourages and supports social forces such as enterprises, institutions, social organizations, and individuals to provide support for the legal aid industry through donations and other means in accordance with the law (Article 9 of the Legal Aid Law). Once the public welfare and guarantee of the legal aid system are questioned, it may also affect the support of social forces for the legal aid industry. Legal aid lawyers are subsidized by national funds, and legal aid is actually a subsidized and fallback right. Legal aid can only be provided when the parties really need it. If the parties have the ability to entrust lawyers, there is no need to provide legal aid for them anymore.

2. Institutional response and its limitations

Due to the enormous destructive impact hidden in such phenomena, it is necessary to govern and prevent them from multiple levels such as systems and theories. The designated defense provided by legal aid and the defense obtained by the parties through delegation, although different in terms of funding sources and institutional positioning, have certain similarities in practice because their goals are to provide legal services for the accused. In terms of coordinating the relationship between legal aid defense and commissioned defense, China established the principle of prioritizing commissioned defense as a basic guideline for handling the relationship between legal aid defense and commissioned defense as early as the beginning of the reform and opening up. For a long time in the past, this principle did not receive special attention and there was no controversy. Due to the frequent occurrence of conflicts between designated defense and entrusted defense by close relatives, there has been a divergence of understanding between the theoretical and practical circles regarding the principle of prioritizing entrusted defense.

2.1 The traditional system of prioritizing the principle of entrusted defense

The establishment of the principle of prioritizing entrusted defense in China can be roughly divided into two stages. The first stage is before the frequent occurrence of conflicts between legal aid defense and commissioned defense. At this stage, China mainly established the principle of prioritizing entrusted defense through two paths at the institutional level. The first path is at the level of the Criminal Procedure Law and related judicial interpretations. Article 27 of the Criminal Procedure Law promulgated in 1979 stipulates: "In cases where the prosecutor appears in court for public prosecution and the defendant has not appointed a defense counsel, the people's court may appoint a defense counsel for him." From this provision, it can be seen that the prerequisite for appointing a defense counsel is that the defendant has not appointed a defense counsel. The 1996 amendment to the Criminal Procedure Law essentially inherited this provision and added a prerequisite for appointing a defense counsel. Article 34 of the revised Criminal Procedure Law in 1996 stipulates: "In cases where the prosecutor appears in court for public prosecution, if the defendant has not appointed a defense counsel due to economic difficulties or other reasons, the people's court may designate a lawyer who is obligated to provide legal aid to provide defense for them." In addition, two situations of mandatory appointment of defense are also stipulated: the first is when the defendant is blind, deaf, mute or a minor and has not appointed a defense counsel; The second type is that the defendant may be sentenced to death without appointing a defense counsel. So, the basic principle of prioritizing entrusted defense was actually established in the Criminal Procedure Law promulgated in 1979, and continued through amendments to the Criminal Procedure Law in 1996, 2012, and 2018. The second path is the emphasis on the principle of prioritizing entrusted defense in the Legal Aid Regulations and related provisions. The 10th and 12th articles of the "Legal Aid Regulations" implemented in 2003 stipulate the circumstances in which legal aid can be applied for, and three of them explicitly state that the absence of a defense lawyer or the hiring of a lawyer is a condition for application. Meanwhile, according to Article 23 of the Legal Aid Regulations, if personnel handling legal aid cases encounter situations where their beneficiaries have entrusted lawyers or other agents on their own, the legal aid institution shall terminate the legal aid after review. Therefore, it can be said that since the reform and opening up, China has clearly stipulated the basic principle of prioritizing entrusted defense from the aspects of the Criminal Procedure Law and the Legal Aid Regulations.

2.2 Divergence in the New Era: Prioritizing Commissioned Defense or Parties' Choice

In recent years, after the conflict between legal aid defense and commissioned defense occurred, relevant laws and judicial interpretations have further refined the principle of prioritizing commissioned defense on the basis of traditional regulations. The Judicial Interpretation of the Criminal Procedure Law, revised at the end of 2020, further stipulates the conflict between entrusted defense and legal aid defense in practice. Article 51 of the Judicial Interpretation of the Criminal Procedure Law stipulates: "If a legal aid institution assigns a lawyer to provide defense for a defendant, and the defendant's guardian or close relatives appoint a defense lawyer on their behalf, the defendant's opinion shall be heard and the defense lawyer shall be determined by them." This provision establishes the principle that the defendant's opinion shall be heard and the defense lawyer shall be determined by them in response to conflicts between lawyers appointed by close relatives on their behalf and those appointed as legal aid lawyers. This means that when entrusted defense and legal aid defense coexist, the defendant can freely choose between the two. But this interpretation has been questioned by some scholars. This questioning can be divided into two different positions: the first viewpoint holds that it is acceptable to give the defendant the right to choose between a lawyer appointed by close relatives and a legal aid lawyer in this situation, but the relevant regulations are not comprehensive enough. The second view is that, according to the third paragraph of Article 34 of the Criminal Procedure Law, the guardians and close relatives of the suspect and the defendant should have relatively independent power of attorney. As long as the guardians and close relatives act as the entrusted defenders, the entrustment relationship has also been determined, and legal aid should be withdrawn, the defendant has no right to choose "legal aid or entrusted defense", but can only choose "which defense lawyer" to entrust. The existence of such a dispute itself highlights that there is still room for further discussion on the legitimacy and certainty of this provision.

The Legal Aid Law promulgated in 2021 has further responded to this. On the one hand, the Legal Aid Law continues the relevant provisions of Article 23 (3) of the 2003 Legal Aid Regulations in Article 48, which includes "the recipient entrusts a lawyer or other agent on their own" as one of the circumstances in which the legal aid institution should make a decision to terminate legal aid; On the other hand, with regard to the conflict between legal aid defense and entrusted defense, Article 27 of the Legal Aid Law stipulates: "When the people's court, the people's procuratorate, and the public security organ notify legal aid institutions to appoint lawyers as defenders, they shall not restrict or damage the rights of suspect and defendants to entrust defenders." Through this provision, legislators expect to systematically eliminate the occurrence of "pit occupying defense". But in fact, this clause does not stick to the principle of priority of traditional entrusted defense, but only emphasizes that the appointment of lawyers shall not limit or damage the rights of suspect and defendants to entrust defenders. If we combine the provisions of the above-mentioned Judicial Interpretation of the Criminal Procedure Law on the relevant rights that suspect and defendants can choose, even if suspect and defendants choose designated legal aid lawyers, their right to entrust defenders has not been "restricted or damaged", nor has it violated the corresponding provisions. Therefore, Article 27 of the Legal Aid Law does not actually return to the traditional principle of natural priority for entrusted defense. It only emphasizes that the right of the defendant to entrust a lawyer should be protected and should not be violated due to the appointment of a defense.

2.3 Limitations of existing institutional responses

Firstly, the existing institutional response has not provided a clearer implementation of the principle of prioritizing entrusted defense, but rather poses a risk of mutual dissolution. From the above analysis, it can be seen that since 1979, the basic principle of prioritizing entrusted defense has been clearly established through the relevant provisions of the Criminal Procedure Law and legal aid. The core connotation is that entrusted defense takes priority over designated defense of legal aid. In the presence of entrusted defense, designated defense of legal aid should be "withdrawn". But in the new era of development, whether in judicial practice or judicial interpretation, this clear principle seems to have been blurred to a certain extent. Article 51 of the Judicial Interpretation of the Criminal Procedure Law in 2021 emphasizes the principle of prioritizing the client's wishes, which may potentially conflict with the traditional principle of prioritizing the client's defense.

When close relatives entrust lawyers and legal aid lawyers to coexist, it seems theoretically feasible to listen to the opinions of the accused. Both the suspect and the defendant are in custody. At this time, the question of how to listen to the opinions of the accused arises. Who will listen to the opinions of the accused? After listening to the opinions, how can they be conveyed? Because at this time, the accused is in a state of detention, which is actually a unilateral message conveyed by the investigating authority. The transmitter of this message, that is, the investigating authority itself, has the right to appoint legal aid lawyers. The family members of the accused actually have no way to know the wishes of the accused through an effective channel. They can only obtain information through the communication of the investigating authorities, but this has not effectively resolved the conflict between the lawyers entrusted on their behalf and the legal aid lawyers. Although the 2021 Judicial Interpretation of the Criminal Procedure Law has made significant progress in this regard, this provision cannot effectively resolve the conflict between lawyers entrusted by close relatives and legal aid lawyers.

Secondly, there is ambiguity in Article 27 of the Legal Aid Law, which lacks effective remedies for resolving related issues. As mentioned above, Article 27 of the Law on Legal Aid responds to the conflict between lawyers entrusted by close relatives and legal aid lawyers. "When people's courts, people's procuratorates, and public security organs notify legal aid institutions to appoint lawyers as defenders, they shall not restrict or impair the rights of suspect and defendants to entrust defenders.". This article mainly stipulates from the perspective of prohibition, and prohibits the restriction or damage of the suspect and the defendant's entrustment of defenders from the negative perspective, hoping to resolve the conflict between entrustment of defense and legal aid defense. This is undoubtedly an important and targeted clause. However, from the perspective of judicial practice, the following problems may still exist in the implementation of this clause: (1) This clause guarantees the right of suspect and defendants to entrust defenders in an indirect and negative way. As mentioned above, this clause is not fundamentally different from Article 51 of the Judicial Interpretation of the Criminal Procedure Law in terms of content. It takes the independent choice of the suspect and the defendant as the core criterion for judgment, so it meets the previous problem: how can the suspect and the defendant's willingness to make their own choice be confirmed, especially when the suspect and the defendant are detained. (2) As a prohibitive provision, this clause lacks corresponding relief clauses as supporting measures. According to the principle of procedural law, there is no right without relief. Although prohibitive clauses are stipulated and the objects to which they apply are defined as the people's courts, the people's procuratorates, and the public security organs, if the case handling organs violate the prohibitive clauses, there are no clear punitive consequences, which makes the prohibitive provisions of the clause easy to be ignored or avoided. Therefore, the conflict does not exist because of the principle of the priority of entrusted defense itself, but because of the lack of safeguards for the principle of the priority of entrusted defense in practice. Simply emphasizing the protection of the choice of suspect and defendants from the legislative and judicial interpretation level cannot effectively solve the conflict between legal aid defense and the entrusted defense of close relatives.

Thirdly, the provision in Article 48 of the Legal Aid Law regarding the termination of legal aid has also failed to effectively address related issues. According to Article 23, Paragraph 3 of the 2003 Legal Aid Regulations, if the recipient entrusts a lawyer or other agent on their own, the legal aid institution shall terminate the legal aid. On the basis of this clause, according to Article 48 of the Legal Aid Law, if the recipient entrusts a lawyer or other agent on their own, the legal aid institution shall make a decision to terminate the legal aid. During the drafting process of the Legal Aid Law, in response to the issue of conflicts between close relatives entrusting lawyers and assigning legal aid lawyers in judicial practice, some experts suggested that Article 48 (6) should be amended to "the recipient and their close relatives have already entrusted lawyers or other agents on their own", while some scholars proposed that "guardians or close relatives entrusting lawyers" be one of the situations for terminating legal aid, hoping to fundamentally solve the conflict problems that arise in practice through this clear provision. However, this suggestion has not been accepted by the legislative body. Currently, Article 48 of the Legal Aid Law only stipulates that "the recipient entrusts a lawyer or other agent on their own" as a condition for terminating legal aid, and does not extend to the situation where "the recipient's guardian or close relatives entrust on their behalf".

3. A temporary solution: the resolution of information isolation and the improvement of sanctions measures

The principle of the priority of entrusted defense has been replaced by the "choice by the will of the parties" stipulated in the Judicial Interpretation of the Criminal Procedure Law in the process of concrete implementation, and the termination of legal aid provisions of the Legal Aid Law only regard "the recipient entrusts lawyers or other agents on his own" as the condition for termination of legal aid. The crux of the problem is how to confirm the will of suspect and defendants. The path of clarifying "proxy delegation" as a condition for terminating legal aid in legislation has not been recognized by the legislative body, and the legal interpretation of treating proxy lawyers as client delegations is still at the level of theoretical interpretation. In the absence of further confirmation in legislation and legal interpretation, resolving conflicts between commissioned lawyers and legal aid lawyers may require a shift in mindset. The node of conflict in the above four cases is that the entrusted lawyer needs to go to the detention center to meet with the suspect and the defendant to obtain the confirmation of entrustment intention. Therefore, a more direct improvement path is to break through the information barrier between the entrusted lawyer, the suspect and the defendant, so as to ensure that the wishes of the suspect and the defendant can be clearly expressed.

3.1 The duty of the investigating authority to inform

How did the suspect and defendant make their wishes? First of all, we need to pay attention to whether the suspect and the defendant are wise in making their wishes. The premise for the suspect and the defendant to express their wishes wisely should be that they have obtained sufficient information. The suspect and the defendant can make a wise decision only when they have sufficient information. When the suspect and defendant are in custody, most of the case information they know comes from the case handling organ. According to Article 34 of the Criminal Procedure Law, when interrogating a suspect for the first time or taking compulsory measures against a suspect, investigators should inform the suspect that he has the right to entrust a defender. The People's Procuratorate and the People's Court shall, within three days from the date of the corresponding time node, inform the suspect and the defendant that they have the right to entrust defenders. This article also stipulates the obligation to convey. If a suspect or defendant requests to entrust a defender while in custody, the case handling organ shall convey his request in a timely manner. From Article 34, it can be seen that the Criminal Procedure Law stipulates the obligation to inform and convey, but in the specific implementation, the obligation to inform seems to have not been effectively fulfilled, resulting in conflicts between close relatives entrusting lawyers and legal aid lawyers in all four cases.

What should the case handling organ tell the suspect and defendant? It may not be enough to just tell the suspect and the defendant that they have the right to have a lawyer. In judicial practice, the vast majority of defendants lack legal knowledge and are unable to distinguish between legal aid lawyers and lawyers hired at home. So it is not enough to just inform the suspect and the defendant that they have the right to hire a lawyer, but also inform the suspect and the defendant of other contents, including whether their close relatives will hire a lawyer for them and whether they have hired a lawyer. If the suspect and the defendant do not know the corresponding information, they can only make unwise wishes in a state of lack of information.

The Criminal Procedure Law only stipulates that the case handling organ can tell the suspect and the defendant that they have the right to hire a lawyer, and the case handling organ can also convey the wishes of the suspect and the defendant to their close relatives. However, it is not clear whether the wishes of their close relatives, whether they are willing to entrust or not, and other matters need to be fed back to the suspect and the defendant. That is to say, the current provision of the Criminal Procedure Law regarding notification is only a one-way notification, rather than a two-way notification obligation. The wishes of close relatives cannot be conveyed to the accused through the investigating authorities, or there is no provision for them to be conveyed through the investigating authorities, resulting in the accused making decisions in a state of information scarcity. Therefore, it is necessary to emphasize the obligation of two-way disclosure from the perspectives of legislation and judicial interpretation, in order to avoid blind decision-making by the accused. At present, some places have made some attempts in this regard. For example, in 2015, the People's Procuratorate of Guangdong Province issued Several Opinions of the People's Procuratorate of Guangdong Province on Safeguarding the Practicing Rights of Defense Lawyers in accordance with the Law (for trial implementation). Article 2 of this provision particularly emphasizes that if a suspect who is in custody or under residential surveillance at a designated residence proposes to entrust a defender, or requests to notify his guardian or close relatives to entrust a defender, the People's Procuratorate shall convey his request within three working days. If the guardian or near relative of a suspect entrusts a defense lawyer on his behalf, the People's Procuratorate shall promptly notify the suspect, who shall confirm the entrustment relationship.

In order to ensure that suspect, especially detained suspect, can obtain sufficient information, the practices of foreign countries can provide some references for China. In the UK, when a suspect is detained, he must be informed in writing that he has the following rights: first, let the relevant personnel know the information about his arrest; Secondly, he can meet with the legal representative privately without paying any fees. France also has similar provisions. At the beginning, suspect in custody must be informed of their rights to: first, inform relatives of the fact of his arrest by telephone; The second is to contact a proxy lawyer or duty lawyer and provide them with a thirty minute consultation before being questioned. When a suspect is in custody, he is helpless. If he only has information from the case handling organ at this time, his information channel is single. In this case, his decisions and intentions are essentially blind. In order to enable him to make more informed decisions with relatively sufficient information, it is necessary to provide him with relatively diverse channels of information, so that he can wisely choose whether to hire a lawyer and what kind of lawyer to hire.

3.2 Suspect and defendant will transmission mechanism

How are the wishes of the suspect and defendant conveyed to their close relatives? In these four cases, the channels for suspect and defendants to convey their wishes are very single, and they can only be conveyed through the case handling organ. Even if the accused transmits their wishes by telephone, they are often questioned. The suspect and the defendant communicate through telephone channels, and the voluntariness of this communication may also be questioned, because the suspect and the defendant are in custody. If the entrusted lawyer cannot meet, and the close relatives cannot meet with the suspect and the defendant, at this time all channels are "monopolized" by the case handling agency and the detention center, and all opinions can only be conveyed through the case handling agency and the detention center, but the opinions conveyed by the case handling agency cannot be trusted by the suspect, the defendant's family members and the public. At this time, it is easy to fall into the "Tacitus trap" of public trust.

In such cases, no matter what kind of information the case handling organ conveys, it is difficult to show that the information truly reflects the wishes of the suspect and the defendant. Even if the case handling organ conveys the wishes of the suspect and the defendant, it is difficult to win trust from their families and the public. This phenomenon is also due to the poor information communication. There is an information barrier between the suspect, the accused and their family members, and the two sides cannot talk or communicate. At this time, on the one hand, lawyers entrusted by close relatives need to see the suspect and the defendant to obtain the entrustment; On the other hand, the case handling organ refused to allow the lawyer entrusted by close relatives to meet on behalf of the suspect and the defendant on the ground that they had received or were ready to receive legal aid lawyers, and the lawyer entrusted could not understand the wishes of the suspect and the defendant without meeting. There is no way for close relatives to determine that the will conveyed by the case handling organ is the true will of the suspect and the defendant. The close relatives of the suspect and the defendant then show distrust of the case handling organ.

There are two ways to solve this problem in the future. The first way is to allow lawyers appointed by close relatives to meet with the accused and confirm their wishes through the meeting. Only in this way can close relatives gain confidence and better protect the accused's independent choice of defense lawyers. The second way is to allow close relatives to communicate and consult with the suspect and the defendant about the entrustment. Ensuring communication between the accused and their close relatives regarding the issue of legal representation can effectively safeguard the accused's right to defense and also effectively eliminate doubts from their close relatives and society.

3.3 Procedural sanction mechanism for safeguarding the right of independent choice of the accused

The exercise of rights needs to be safeguarded through corresponding punitive consequences, otherwise rights can easily become mere words on paper. Procedural rights need to be protected through the invalidation of relevant procedural violations through procedural sanctions. Article 238 of the Criminal Procedure Law stipulates procedural sanctions, which should be revoked and remanded for retrial in five situations. The third situation is the deprivation or restriction of the parties' legal litigation rights, which may affect a fair trial. If the right of defense of suspect and defendants is violated, they can also invoke Article 238 of the Criminal Procedure Law to obtain relief in practice. However, the willingness of the accused to choose a defense lawyer has been somewhat violated or restricted. From the current judicial practice, it has not been regarded as "depriving or restricting the legal litigation rights of the parties", so there will be no corresponding punitive consequences. This may also lead to some law enforcement agencies using certain means to indirectly restrict the accused's right to choose a defense lawyer.

A suspect in the UK is entitled to a written notice when he is in custody. This written notice is mainly to inform him of the corresponding rights he enjoys. For example, to let the relevant personnel know the information about his arrest, they can meet the lawyer in private or seek legal help. If the relevant rights are deprived, the arrest is illegal, which in turn leads to subsequent detention being illegal, especially if the parties are not informed of the possibility of obtaining legal advice or verbal warnings, which may result in the exclusion of evidence obtained from questioning after the arrest at the trial stage. This punitive measure can effectively ensure the effective realization of the right of the accused to be informed and conveyed.

In the 2006 case of United States v. Gonzalez Lopez, the defendant Lopez was accused of conspiracy to drug trafficking, and his family hired a lawyer to defend him. In the subsequent proceedings, the defendant requested that a lawyer from California join his legal team to defend him. This California lawyer also submitted multiple applications to the court, but all applications were rejected without reason. Later, the defendant had no choice but to hire a local lawyer. The local lawyer requested that the California lawyer join him in the defense, but this request was also rejected. After the jury found the defendant guilty, the defendant Lopez appealed on the grounds that his right to hire a lawyer under the Sixth Amendment to the United States Constitution had been violated. The Federal Eighth Circuit Court, which heard the appeal, held that the amendment granted the defendant's right to defense not only means having a lawyer to defend them, but also implies that the defendant can hire their favorite lawyer to defend them. Therefore, the court ruled that the actions in this case violated the defendant's right to choose a lawyer, and thus violated his right to defense under the Sixth Amendment to the United States Constitution. It supported Lopez's appeal request and remanded the case for retrial. In response to this restriction, the court remanded the case for retrial, providing a procedural sanction safeguard for the defendant's right to independently hire a lawyer.

In China, the procedural sanction clause for second instance in Article 238 of the Criminal Procedure Law has not yet been fully activated. When the right of the accused to freely hire a lawyer they trust is violated, it is difficult for the accused to invoke Article 238 of the Criminal Procedure Law to obtain relief from the retrial procedure. If the case handling authority infringes on the right of suspect and defendants to choose lawyers according to their own wishes, but has no impact on the trend of subsequent cases, then this right to choose lawyers according to their own wishes will be easily infringed. In the future, the following approaches can be considered to further strengthen the defense's remedies when encountering relevant issues. On the one hand, in the pre-trial stage, the suspect's right to choose a lawyer has been violated. According to Article 567, Item 14 of the Rules of Criminal Procedure of the People's Procuratorate (GJFSZ [2019] No. 4), it can be regarded as a situation that "obstructs the parties, defenders, agents ad litem and lawyers on duty from exercising their procedural rights according to law" for legal supervision; On the other hand, in response to the infringement of the defendant's right to choose a lawyer by the first instance people's court, the restriction of the defendant's right to choose a defense counsel can be considered as a situation that "deprives or restricts the legal litigation rights of the parties, which may affect the fair trial" through guiding cases.

4. Exploration of the Root Cause: Conflict and Resolution between Loyalty Obligations and Public Welfare Obligations

Changing the information closure of suspect and defendants is only a temporary solution to the conflict between lawyers entrusted by close relatives and legal aid lawyers. To truly resolve this conflict, we need to further explore the root causes of this conflict. The real reason for this phenomenon is still the conflict of interests behind it.

4.1 The "dual center model" of lawyer loyalty obligation and public welfare obligation

The conflict between proxy lawyers and legal aid lawyers may appear to be a conflict between law enforcement agencies and lawyers, but at its root, it involves a deep-seated ethical conflict in the legal profession, namely the conflict between lawyers' loyalty obligations to their clients and their public welfare obligations to the country and society. After the reform and opening up, with the reform of the legal industry and the continuous establishment of lawyers' autonomy, the legal industry has established a "dual center model": on the one hand, lawyers need to bear the obligation of loyalty, actively serve the interests of their clients as much as possible, and maximize the interests of their clients; on the other hand, they must not engage in any behavior that harms or hinders the interests of their clients; On the other hand, lawyers also need to undertake public welfare obligations towards the public interest, which means the obligation to respect the truth of the facts, uphold the implementation of the law, and maintain social fairness and justice. The "dual center model" of lawyer professional ethics represents to some extent the different expectations of society towards the role of lawyers, but these different expectations often lead to varying degrees of conflicts in practice.

Article 1 of the Provisional Regulations of the People's Republic of China on Lawyers, issued in 1980, defines lawyers as legal workers of the state, whose task is to provide legal assistance to state organs, enterprises, institutions, social organizations, people's communes, and citizens, in order to maintain the correct implementation of the law, safeguard the interests of the state and collectives, and the legitimate rights and interests of citizens. Therefore, the service objects of lawyers are first and foremost the state and collectives, and their primary purpose is to maintain the correct implementation of the law and safeguard the interests of the state and collectives. Article 2 of the Lawyer Law of the People's Republic of China (hereinafter referred to as the Lawyer Law) passed in 1996 stipulates that "lawyers referred to in this Law refer to practitioners who have obtained a lawyer's practice certificate in accordance with the law and provide legal services to society." At this time, the role of lawyers was to provide legal services to society as "practitioners". In 2007, the Lawyer Law was revised again, explicitly stating in Article 2 that "lawyers referred to in this Law refer to practitioners who have obtained a lawyer's practice certificate in accordance with the law, accepted commissions or appointments, and provided legal services to clients". That is to say, it explicitly regards lawyers as "practitioners who provide legal services to clients", highlighting the attribute of lawyers serving the interests of clients. At the same time, in the same clause, it is particularly emphasized that "lawyers should safeguard the legitimate rights and interests of their clients, ensure the correct implementation of the law, and uphold social fairness and justice", clearly placing "safeguarding the legitimate rights and interests of their clients" before "safeguarding the correct implementation of the law, and upholding social fairness and justice". Therefore, the development process of China's legal industry is a gradual transformation of the role of lawyers from "national legal workers" to "legal practitioners", and it is also a process in which the "loyalty obligation" to serve clients is gradually established and given priority over "public welfare obligations".

Article 3 of the "Norms for Lawyers to Handle Criminal Cases" issued by the All China Lawyers Association in 2000 stipulates that "lawyers must abide by national laws and regulations, adhere to the principle of facts as the basis and law as the criterion, and abide by the professional ethics and practice discipline of lawyers when undertaking criminal litigation business; Article 5 stipulates: "Lawyers act as defenders or provide legal assistance to suspect, independently conduct litigation activities according to law, and are not limited by the will of the client". During this period, more emphasis was placed on the public welfare obligations of criminal defense lawyers, requiring them, like judicial personnel, to be based on facts, guided by the law, and conduct independent defense in accordance with the law, without being restricted by the will of their clients. In 2017, the "Norms for Lawyers to Handle Criminal Cases" were revised, removing the principle of "must adhere to facts as the basis and law as the criterion" from relevant provisions, and no longer requiring lawyers as required for judicial personnel, indicating that criminal defense lawyers should bear responsibilities different from those of judicial personnel in criminal proceedings. At the same time, Article 5 has also been changed to "In defense activities, lawyers should respect the opinions of the parties on the basis of law and facts, carry out their work in accordance with the principle of benefiting the parties, and shall not put forward defense opinions that are unfavorable to the parties against their wishes". We no longer emphasize the independent defense of lawyers, but emphasize that lawyers should respect the opinions of their clients, not go against their wishes, and conduct defense work in accordance with the principle of benefiting their clients. This reflects the emphasis on the "loyalty obligation" of lawyers to serve their clients.

4.2 Potential conflict between lawyer's loyalty obligation and public welfare obligation

The development of China's criminal defense industry is also a process of gradually establishing the loyalty obligation of lawyers, who adopt various means to defend their clients' interests. But when this loyalty obligation develops to a certain extent, it becomes a "passionate defense", which means "wholeheartedly investing in the interests of the principal, passionately safeguarding and protecting the principal's rights and exerting their maximum possible abilities", and even "taking any means and expedient measures to protect his principal, without considering the danger and cost of others". In order to prevent lawyers from neglecting the public interest due to excessive enthusiasm for defense, countries have set certain boundaries for the loyalty obligation of lawyers. This boundary is the public interest obligation of lawyers, which is the obligation that lawyers should undertake to safeguard the public interest of society. The scope of this public welfare obligation is relatively broad, including both the litigation obligations that lawyers should undertake in judicial activities and the social public welfare obligations that lawyers should undertake in judicial activities.

Article 3 of the revised Lawyer Law of China in 2017 stipulates that "Lawyers must abide by the Constitution and laws, adhere to professional ethics and professional discipline. Lawyers must base their practice on facts and take the law as the criterion. Lawyers should accept supervision from the state, society, and parties. Lawyers practicing in accordance with the law are protected by the law, and no organization or individual may infringe upon the legitimate rights and interests of lawyers." Article 40 prohibits lawyers from engaging in any behavior. Correspondingly, Articles 36 to 40 of the 2016 revised "Regulations on the Administration of Lawyer Practice" have provided further detailed provisions on the aforementioned prohibitive provisions. These regulations to some extent set the behavioral boundaries for lawyers' loyalty obligations. However, in judicial practice, conflicts often arise between lawyers' loyalty obligations and their public welfare obligations.

Case 1: The "Lv San Case" in Anhui. Lv Mousan is a lawyer who provides legal services to a local company, which is accused of fraud involving routine loans. Lv Mousan is also accused of being an accomplice in the fraud case. Lv's close relatives hired a lawyer from Beijing, who intervened and found that there may be problems in this case, especially the issue of illegal evidence collection. The lawyer copied the synchronized audio and video recordings and applied to the court to initiate the illegal evidence exclusion procedure. After the court refused, the lawyer posted the synchronized audio and video recordings online to attract media attention. Later, the People's Court filed a complaint with the Judicial Bureau of Chaoyang District, Beijing. The Judicial Bureau of Chaoyang District imposed an administrative penalty of one year's suspension of business on the lawyer for violating Article 38, Item 4 of the "Measures for the Administration of Lawyer Practice", which stated that the lawyer had violated regulations by disclosing or disseminating information and materials related to non-public trial cases, or important information and evidence materials obtained by the lawyer or other lawyers during the case handling process.

In response to the shortcomings of the investigating authorities, relevant laws have established various procedural defense plans, such as the application for exclusion of illegal evidence. Due to the establishment of the procedural priority principle for the exclusion of illegal evidence in our country, the resolution of the issue of illegal evidence exclusion should take priority over substantive examination. Once the defense applies for the exclusion of illegal evidence and exhausts all remedies, it will cause corresponding delays in the work of the trial and prosecution. If a similar situation occurs as in the case of Lv Mousan, the people's court may be in an awkward position of being criticized.

Case 2: The "Mo case" in Hangzhou. In this case, during the first instance, the defendant initially hired a lawyer from Guangdong, who made various applications before the court hearing, such as raising objections to jurisdiction and suggesting that the case should be tried in another location; A request has been made for witnesses to appear in court, requesting that the firefighters involved in the rescue on the same day try their best to testify in court. The appointed lawyer from the other region also wrote a letter to the Supreme People's Court, applying for the Supreme People's Court to designate jurisdiction. However, the case was eventually heard as scheduled. Less than half an hour into the trial, the lawyer raised objections to the jurisdiction of the Hangzhou Intermediate People's Court and requested the termination of the trial. However, after being refused, the lawyer immediately left the court in protest, causing the entire trial to be interrupted. The interruption of the trial has attracted the attention of the national media, and the lawyer's behavior has also caused great controversy. Afterwards, the lawyer was also punished by suspending his practice for six months.

The investigating authorities actively provide legal aid lawyers for the accused in such cases, and one of their core interests is to hope that lawyers can take on more public welfare obligations and engage in defense activities within the framework of existing laws and professional norms, so as to successfully complete such influential cases. Whether influential cases can be handled smoothly will affect: (1) the efficiency of handling cases. The prolonged delay in resolving cases will seriously affect the efficiency of judges in handling cases, resulting in their inability to successfully complete the task of trial. Especially in recent years, with the advancement of judicial reform, the overall number of judges has decreased, while the actual number of cases handled has continued to increase. The number of cases handled by a single judge has correspondingly increased, and the demand for judges to quickly close cases has become increasingly strong. (2) Assessment of case handling ability. Whether a judge can effectively manage the trial and ensure its smooth progress is an important evaluation of their ability. Therefore, judges generally hope that the trial can proceed smoothly, as any complications or intense conflicts may affect the smooth progress of the trial. (3) The public's evaluation of the investigating authorities. Due to the widespread attention of public opinion on such influential cases, the actions of the investigating authorities during the trial may receive widespread attention from all sectors of society, which in turn may lead to pressure from the investigating authorities on the handling process of such cases. This pressure may also be indirectly transmitted to specific personnel handling the case.

The author believes that compared to lawyers from other regions commissioned by close relatives, local legal aid lawyers may be more in line with the expectations of the investigating authorities and are more likely to defend within the boundaries set by laws and professional norms. Firstly, the legal aid lawyers in these cases are mostly local lawyers. The reason for emphasizing local lawyers is that there is a "long-term game" relationship between local lawyers and local law enforcement agencies. Local legal aid lawyers are usually more cooperative with law enforcement agencies and generally do not intervene in the case handling process in a confrontational manner. Secondly, from the perspective of the incentive mechanism for handling cases, local legal aid lawyers are appointed to represent clients and do not have sufficient economic and other incentives to actively defend cases, while lawyers appointed from other regions are more motivated to pursue the outcome of these influential cases through active defense. In the aforementioned four cases, the lawyers appointed on behalf of the clients are almost all non local lawyers who have a certain level of influence nationwide and are more skilled or inclined to use out of court publicity to promote the progress of the cases. For example, during the second instance of the "Xu case" in Jiangsu, a lawyer from another city hired by a close relative had handled the "Zhang case". The lawyers hired by the family of Lao and Mo were both Beijing lawyers who had handled multiple influential cases. Compared to local legal aid lawyers, these foreign lawyers entrusted by close relatives are more likely to intervene in cases with a confrontational and intense defense style, which may be exactly what the investigating authorities do not want to see. These influential cases have received widespread social attention, and the investigating authorities are concerned that the involvement of lawyers from other regions may lead to changes in the trial. Therefore, the investigating authorities may be more willing to avoid involving lawyers from other regions by assigning legal aid lawyers. Therefore, the current conflict between legal aid defense and commissioned defense is actually a conflict between two expectations: one is the expectation of the investigating authorities for lawyers to prioritize their public welfare obligations, defend within the framework of legal and professional norms, and even cooperate with the work of the investigating authorities; Another expectation is that the defendant and their family members have a duty of loyalty to the lawyer, expecting them to actively defend themselves in various ways.

4.3 The governance path of the conflict between loyalty obligation and public welfare obligation

In order to prevent lawyers from using excessive means to defend, countries currently mainly adopt two governance paths: "blocking" and "sparse".

The first path is "blocking", mainly through the professional code of conduct of lawyers to stipulate that lawyers cannot engage in excessive defense behavior. The code of conduct for lawyers emphasizes the obligation to respect court trials, and Article 3.5 of the American Bar Association's Model Rules of Professional Conduct (2004) specifically emphasizes the responsibilities that lawyers must undertake for the court. Article 3.5 consists of four paragraphs, among which the fourth paragraph stipulates that lawyers shall not engage in behavior that disturbs the court. The corresponding annotation states that if the judge makes a mistake during the trial, the lawyer can firmly resist the judge's abuse of power, but cannot retaliate against each other. The judge's mistake cannot be used as a reason for the defendant to engage in dereliction of duty. But lawyers can provide reasons, and then save these reasons through the records of the trial, and obtain relief through appeal. The Code of Conduct of the Canadian Bar Association also emphasizes that lawyers must encourage the public to respect the judiciary. In terms of respecting the judiciary, the responsibility of lawyers should be higher than that of a citizen, because lawyers themselves are knowledgeable about the law. If lawyers say that the judiciary is corrupt and trials are unfair, the impact on the public will be enormous. Therefore, it is particularly emphasized that lawyers should be particularly cautious when accusing the judiciary or undermining public confidence in the judiciary. The professional conduct guidelines or norms for lawyers in England, Scotland, and other places also emphasize that lawyers should respect the court. In addition to regulating the professional behavior of lawyers themselves through the norms of lawyer practice, some countries with developed rule of law outside the region also stipulate the crime of contempt of court. If a lawyer accuses a judge, strikes the court, or fails to appear on time in court, it may be defined as contempt of court behavior and may be punished or even convicted.

At present, China mainly adopts the method of "strict regulation" to address the conflict between loyalty obligations and public welfare obligations, mainly through two aspects to punish and regulate the professional behavior of lawyers. The first aspect is that the Judicial Interpretation of the Criminal Procedure Law specifically stipulates court discipline. Article 308 of the Interpretation states: "If a lawyer serving as a defense counsel or litigation representative seriously disrupts court order, is forcibly taken out of the courtroom, or is fined or detained, the people's court shall notify the judicial administrative organ and may recommend corresponding punishments in accordance with the law." The second aspect prohibits relevant behaviors through administrative regulations and professional behavior norms and imposes administrative penalties. The relevant regulations are mainly reflected in Articles 36 to 40 of the Measures for the Administration of Lawyer Practice.

There are two shortcomings in the path setting of "strict regulation" in our country: firstly, this simple punishment method cannot achieve good social effects. In some cases, lawyers are punished on one hand, but welcomed by their clients on the other hand. At this point, there is a sharp contrast between the punishment of lawyers by judicial administrative organs and the evaluation of parties, which can greatly reduce the deterrent effect of lawyer punishment. The reason for such a contrast is related to the existing problems in China's current judicial environment and the insufficient relief provided to the defense. Secondly, the disciplinary measures against lawyers have a lag effect, and the people's courts do not have particularly effective disciplinary measures against lawyers. At present, the Judicial Interpretation of the Criminal Procedure Law mainly stipulates punitive measures such as ordering withdrawal, fines, and detention, but the implementation effect is not good, lacks sufficient rigidity, and is also prone to triggering a new round of public opinion. For some overly enthusiastic defense behaviors of lawyers, measures such as reporting to judicial authorities and suggesting corresponding punishments can only be taken, but such punishments often have a lag. From the perspective of implementation effectiveness, this punishment may have a deterrent effect on some lawyers, but it cannot fundamentally solve the problem of lawyers' excessive enthusiasm for defense, or even if some punitive measures are stipulated, many lawyers will still defend themselves in more extreme ways.

The second path is "evacuation", which mainly manifests as providing relief measures to the parties involved for some improper handling behaviors. Firstly, sufficient protection should be provided for the exercise of the rights of the defendant and the lawyer. Infringement of the defendant's right to defense can be a reason for appeal, and relief can be obtained through the appeal process. Overall, the general approach taken by countries outside the jurisdiction to address this issue is that if a judge abuses their power or infringes upon the defendant's right to defense, they can seek relief through judicial channels. If a channel for relief is provided to the defendant and the lawyer, conflicts can be resolved through judicial channels. If there is no channel to provide relief, lawyers may have to resort to the internet and media, which can easily lead to conflicts.

At present, in China, the excessive enthusiasm of lawyers for defense is mostly dealt with through strict regulation, and there is a lack of sufficient protection for the rights of lawyers and defendants to defend, which cannot fundamentally resolve this internal conflict. The fundamental reason why lawyers adopt some extreme methods in the process of handling some cases may be that their legitimate legal demands have not been properly responded to. In the future, only by further increasing and activating the internal relief channels of criminal proceedings can lawyers avoid resorting to the media or taking overly aggressive measures as much as possible. In addition, there should also be corresponding norms for judicial personnel, regulating the professional behavior of judges and prosecutors through professional behavior norms. Taking the United States as an example, some states will issue corresponding codes of conduct for judges' judicial actions. Recently, the United States has also put forward requirements for judges' professional and non professional behavior through formal codes of conduct. Although judges in developed countries with extraterritorial rule of law have the "weapon" of contempt of court, they are also cautious when determining contempt of law. If a judge abuses contempt of court or suppresses lawyers, they will also be punished. In December 1991, during the trial of a minor custody case in Michigan, Judge Michael Hawke was rude and harsh towards lawyer Elaine Sharp. The two had an argument in court, and Judge Hawke found Sharp guilty of contempt of court. Sharp then complained about Judge Hawke's misconduct. The Michigan Supreme Court ruled in 1995 that Judge Hawke was disrespectful, using provocative language to provoke lawyers, and using contempt of court to oppress people, which was clearly inappropriate and hindered judicial fairness. He was sentenced to three days of unpaid suspension. So, although there are strict rules and regulations for lawyers and constraints on the crime of contempt of court, at the same time, corresponding regulations should be imposed on the words and deeds of judges, especially their improper abuse of power. In many influential cases in our country, there are still some issues with the legality and legitimacy of the professional behavior of the investigators themselves, which need to be further regulated. So the logic of reform should be that lawyers should abide by all their corresponding norms and respect the court, but at the same time, the behavior of judges should also be regulated by their own professional code of conduct.

Conclusion

The "pit occupying defense" behavior in influential cases should be criticized, because this behavior not only infringes the right of suspect and defendants to choose lawyers independently, but also may cause the legitimacy of the legal profession, legal aid cause and even the entire legal cause to be questioned. This phenomenon is worthy of reflection and criticism, but the current academic discussions only focus on its violation of the principle of prioritizing entrusted defense. This cannot directly solve the relevant problems, nor can it effectively respond to the corresponding issues fundamentally. The conflict between designated defense and commissioned defense lies in the different expectations of the law enforcement agency and the defendant regarding the professional role of lawyers. It is a conflict between the lawyer's loyalty obligation and the public interest obligation. To this end, it is necessary to further coordinate the conflicting relationships between the roles of lawyers, clarify the boundaries of lawyers' public welfare obligations, and regulate the professional behavior of case handlers.

In addition, greater procedural space should be given to influential cases. The Criminal Procedure Law and related judicial interpretations currently have some special provisions for cases with evidence disputes, such as detailed provisions on whether to convene a pre-trial conference, whether to allow witnesses to appear in court, whether to initiate the legality review process of evidence, whether to conduct a single cross examination, and whether to hold a trial in the second instance. Since the Criminal Procedure Law and related judicial interpretations already have such a basic idea, it may be better to give more procedural space to influential cases in the future. Since there is a significant social impact, it is advisable to provide sufficient protection for procedural rights, which is also a good legal course for the entire society. Promoting public belief in the rule of law should be the responsibility of all legal professionals. Only by fulfilling their respective duties and adhering to their professional boundaries and ethics can the rule of law be truly realized.