經濟犯罪與律師倫理--兼論證券交易法上律師之角色

Abstract

美國Enron弊案爆發後，外部律師事務所與Enron公司同成為被告；無獨有偶，我國紅火案中，亦見法務長與公司其他高層成為刑事之共同被告，顯見若當事人涉及經濟犯罪，律師深陷其中淪為階下囚似已非罕見，本文研究重點即係律師面臨當事人涉及經濟犯罪時之倫理困境。 迭經歷史發展，美國相關法制陸續規定此時律師應負擔之倫理義務，且於後沙賓法案時代更規範通報義務，雖仍有適用時點之疑義，惟已足成律師行為準則；反觀我國，倫理討論處於萌芽階段，法規範缺漏，律師同道對於自身應遵循何倫理義務多懵懂無知，甚且於當事人策劃經濟犯罪時，其已違反倫理規範而毫無所悉。 是本文希冀藉由美國法制之討論，提供律師同道參考並喚起倫理意識，避免違反倫理情事一再發生。將來若我國律師制定發展更臻成熟，律師倫理規範應予以修改以因應時代所需。

After Enron scandal in U. S., outside law firm of Enron also became defense in two civil actions. Meanwhile, there is a Chief Law Officer became defense along with other management officer of their company in a criminal case called "Red Fire" in Taiwan. It seems that attorneys turn into defenses will no more surprised us. The focus of this thesis is to realize the perjury trilemma of an attorney when clients involved in economic crime. As time goes by, the relevant law with regard to ethics for lawyers has been established in U.S. In post-Sarbanes, attorneys have been asked to report any illegal evidence of their clients, especially corporate and securities attorney. Despite a controversy over timing of applying, it can be a guideline for professional conduct. On the contrary, it is the initial stage of discussion of ethics for lawyers in Taiwan. Most lawyers don't understand duties of ethics, and even don't know they have violated professional conduct when their clients engaged in economic crime. In this thesis, I expect to remind lawyers in Taiwan the importance of ethics in order to avoid violate profession conduct through discussion of American law system. And there is necessary to amend our law of professional conduct in respond to generation pass.