This chapter focuses on the professional obligations of the lawyer representing the funded client in relation to third-party funding transactions. It first discusses the question of whether existing international and national sources of lawyers’ professional obligations in relation to professional independence, loyalty, integrity and the fair administration of justice can provide sufficient guidance to lawyers in addressing various conflicts of interest arising out of the tripartite relationship between the funder, the funded client and the lawyer. Based on an examination of the selected legal sources, it highlights the role of the independence of lawyers in balancing the tripartite funder-client-lawyer relationship and the importance of carefully crafting funding agreements aligning the interests of the funder, client and lawyer to reduce potential conflicts of interest. This chapter proposes some specialized professional guidelines for lawyers at the international level to compensate for the lack of specialized professional guidance available to lawyers on third-party funding at both the international and national level. This chapter moves on to discuss the lawyer’s confidentiality obligation in the context of third-party funding and the privilege issue in relation to the protection of case-related information or documents from being disclosed and shared with the funder because of having been used for obtaining funding and maintaining the funding relationship. Based on an examination of the framework for document production and the privilege defence in international arbitration and the national positions on the funding-related privilege issue, this chapter finds that there is a lack of certainty regarding privilege issues in international arbitration, and the national positions are divergent on the privilege protection for documents to be shared with the funder. In order to improve transnational consensus on funding-related privilege issues, this chapter argues that the privilege attached to the information or documents of the funded party should not be considered to have been waived simply because of sharing them with the funder for case evaluation and case monitoring in light of the aim of document production, the reasonable expectations of the parties, fairness, relevance and materiality in relation to privilege defences in international arbitration. Furthermore, this chapter discusses the role of formulating substantive transnational privilege standards to improve the legal certainty and predictability of privilege issues in international arbitration. In order to reduce the risk of waiving the privilege protection for the funded party, this chapter has also proposed professional guidelines to guide lawyers in addressing funding-related privilege issues without breaching their confidentiality obligations.

Lawyers: Independence and Confidentiality

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发表日期：

2026年

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Yihua Chen

摘要

This chapter focuses on the professional obligations of the lawyer representing the funded client in relation to third-party funding transactions. It first discusses the question of whether existing international and national sources of lawyers’ professional obligations in relation to professional independence, loyalty, integrity and the fair administration of justice can provide sufficient guidance to lawyers in addressing various conflicts of interest arising out of the tripartite relationship between the funder, the funded client and the lawyer. Based on an examination of the selected legal sources, it highlights the role of the independence of lawyers in balancing the tripartite funder-client-lawyer relationship and the importance of carefully crafting funding agreements aligning the interests of the funder, client and lawyer to reduce potential conflicts of interest. This chapter proposes some specialized professional guidelines for lawyers at the international level to compensate for the lack of specialized professional guidance available to lawyers on third-party funding at both the international and national level. This chapter moves on to discuss the lawyer’s confidentiality obligation in the context of third-party funding and the privilege issue in relation to the protection of case-related information or documents from being disclosed and shared with the funder because of having been used for obtaining funding and maintaining the funding relationship. Based on an examination of the framework for document production and the privilege defence in international arbitration and the national positions on the funding-related privilege issue, this chapter finds that there is a lack of certainty regarding privilege issues in international arbitration, and the national positions are divergent on the privilege protection for documents to be shared with the funder. In order to improve transnational consensus on funding-related privilege issues, this chapter argues that the privilege attached to the information or documents of the funded party should not be considered to have been waived simply because of sharing them with the funder for case evaluation and case monitoring in light of the aim of document production, the reasonable expectations of the parties, fairness, relevance and materiality in relation to privilege defences in international arbitration. Furthermore, this chapter discusses the role of formulating substantive transnational privilege standards to improve the legal certainty and predictability of privilege issues in international arbitration. In order to reduce the risk of waiving the privilege protection for the funded party, this chapter has also proposed professional guidelines to guide lawyers in addressing funding-related privilege issues without breaching their confidentiality obligations.