1. Framing the Issue
In legal scholarship, there are instruments whose analytical value extends well beyond the scope of their specific provisions. They can be approached as “test cases” for a larger question about legal order. Decree No. 109/2026/NĐ-CP is one such instrument. Viewed at the surface, it is a decree on administrative sanctions in the field of judicial support services and certain related fields. But when situated within the proper place of the legal profession in the rule-of-law state, this Decree is no longer merely a matter of sanctions, jurisdiction, or the devolution of management authority. It becomes a paradigm case for examining how far the executive may go in regulating an institution that the rule of law itself needs to preserve with sufficient independence so that citizens may still use the law to resist public power.
The 2013 Constitution affirms that human rights and citizens’ rights are recognised, respected, protected, and guaranteed; it further provides that rights may be restricted only by law in cases of necessity, and guarantees the right of defence, the right to self-protection, or the right to engage another person to protect one’s lawful rights and interests [1]. These propositions carry not only substantive significance. They simultaneously embody an institutional premise: there must exist conditions under which citizens are able to mobilise the law as a means of self-defence against public power. Without those conditions, constitutionally enshrined rights risk becoming merely symbolic.
Within that structure, lawyers ought not to be regarded as providers of a routine legal service. The legal profession certainly has a market dimension, a professional dimension, and a dimension of professional responsibility. But to stop there is to see only the surface of the phenomenon. The deeper question is this: lawyers are one of the institutions that enable the right of defence and the right to legal protection to function in lived reality. Once that point is acknowledged, every form of regulation directed at lawyers must be examined not only from the perspective of professional management, but also from the perspective of whether it preserves or distorts the very conditions of citizens’ access to justice.
From that standpoint, Decree No. 109/2026/NĐ-CP raises at least three research questions. First, how should lawyers be understood within the structure of the rule-of-law state: as individual practitioners or as an intermediate institution of rights? Second, if lawyers constitute such an institution, where does the executive’s power to regulate them end? Third, what does Decree No. 109/2026/NĐ-CP reveal when the executive crosses that boundary and intervenes in the very conditions of citizens’ access to justice? This article is organised to answer those three questions.
2. Lawyers as an Intermediate Institution of Rights
Familiar descriptions of lawyers tend to remain at the professional level: a lawyer is an independent practitioner who provides legal services, owes ethical duties, and bears legal responsibility to clients and before the law. Such descriptions are accurate but incomplete. They capture what lawyers do, but fail to identify where lawyers stand within the structure of power.
Lawyers do not appear where the law operates quietly. They appear where public power touches individual lives in its most forceful forms: criminal prosecution, the application of litigation and procedure measures, the issuance of administrative penalty decisions, land recovery, compulsory enforcement, or the carrying out of administrative acts capable of altering a person’s property, honour, liberty, and future. At such points of encounter, citizens do not face a private counterpart on equal footing; they face a power that is organised, staffed, funded, equipped with files, vested with authority, and capable of coercion.
In those circumstances, rights enshrined in the Constitution do not automatically become rights capable of self-defence. Between written rights and lived rights there must be intermediate institutions. It is precisely those institutions that transform the limits of public power from a symbolic form of words into a reality that can be resisted through legal argument and procedure. Lawyers are not needed by society to make the operations of the State more convenient, but to ensure that between citizens and the possibility of an abuse of power there always remains a mechanism of lawful challenge, scrutiny, and self-defence.
For this reason, the legal status of a lawyer cannot be fully understood as the status of an individual practitioner working alone. Seen to its logical conclusion, a lawyer is an intermediate institution of rights. “Intermediate” here does not mean neutral indifference; it means an institutional link connecting constitutional rights with citizens’ actual capacity for self-defence. When the Constitution guarantees the right of defence, the right to self-protection, or the right to engage another person to protect one’s lawful rights and interests, what is guaranteed is not merely a textual proposition. What is also guaranteed is the substantive existence of a subject sufficiently capable and sufficiently independent for those rights to function in lived reality.
This point becomes even clearer when viewed from the perspective of the legitimacy of public power. The State, in constitutional terms, is a power conferred by the People and, in material terms, subsists on public resources generated by society through taxes, the budget, and public financial obligations. Strictly speaking, the state is not an entity that generates itself. It is an institution held in trust and sustained by the very community it governs. Accordingly, when a citizen engages a lawyer to resist a decision, an act, or a claim made by public authority, what is taking place is not simply a legal services transaction. At a deeper level, it is the realisation of the citizen’s right to mobilise the law to hold in check the very power that derives from the citizen.
International standards on the role of lawyers reinforce this view. The United Nations Basic Principles on the Role of Lawyers emphasise that the effective protection of human rights and fundamental freedoms requires that all persons have effective access to legal services provided by an independent legal profession; and that lawyers must be able to perform all of their functions without intimidation, hindrance, harassment, or improper interference, while disciplinary proceedings must be brought before an impartial committee of the profession, an independent statutory body, or a court [2]. Seen from this angle, lawyers are not merely practitioners. They are a component of the structure for the protection of rights within the rule-of-law state.
3. The Inherent Limits of Executive Regulatory Power
The State unquestionably has the power to regulate lawyers. No institution within a legal order can stand entirely outside the law. However, with respect to lawyers, the State’s regulatory power cannot be understood as an all-encompassing managerial authority. It is a power with inherent limits; and those limits are determined not only by the hierarchy of legal effect between a Law and a Decree, but also by the very nature of the subject being regulated.
This point is frequently obscured by managerial thinking. In many fields, the state may regulate according to a logic of maximising administrative efficiency: controlling entry conditions, standardising conduct, imposing obligations, and deploying sanctions as a tool of compliance. But with lawyers, that logic is legitimate only within a defined range. For the State is not merely managing a social activity; it is intervening in an institution that society needs to preserve with sufficient independence to be capable of counterbalancing state power itself when necessary.
To identify those limits correctly, it is necessary to distinguish between the public-standards dimension of the profession and the core of legal practice. The public-standards dimension is where the State has full and legitimate authority to regulate. It encompasses entry requirements, minimum professional standards, rules of ethics, conflicts of interest, duties of confidentiality, liability for compensation, and legal responsibility where the status of lawyer is abused to cause harm. This is the dimension in respect of which society is entitled to make demands of anyone who holds themselves out as a lawyer. If anyone could claim to be a lawyer without verified competence, without ethical constraints, and without accountability for breaches, then public confidence in the legal profession would lose its foundation. In that sense, state regulation is a necessary component of professional legitimacy. The Law on Lawyers reflects precisely this spirit in adopting the principle of combining state management with the promotion of the self-regulatory role of the lawyers’ professional and social organisations [3].
The core of legal practice, however, is a different matter. That core does not lie in entry conditions; it lies in the right to choose a defence strategy, the intensity of challenge to authority, the degree to which argument is pressed to its conclusion, the capacity to pose questions back to public power, and above all the lawyer’s professional loyalty to the law and to the lawful rights and interests of those they defend. This is a dimension that the state cannot occupy as a space of governance. For if the executive steps too deeply into the core, what is altered is no longer the degree of regulation but the very nature of the profession.
In other words, the State may legitimately hold the standards dimension of the profession, but it may not occupy the space of legal practice itself. The reason is not that lawyers constitute a privileged group. The reason is that lawyers exist so that citizens may use the law to resist public power. If the state proceeds to the point of shaping how lawyers argue, how far lawyers may press their challenges, or of narrowing the distance between lawyers and the branch of power they challenge, the state is no longer managing a profession. It is intervening in the conditions of operation of a right.
This principle may be stated in stricter terms: the regulatory authority has the power to maintain the public trustworthiness of the legal profession, but it does not have the power to transform the legal profession into a profession that exists in a state of having to measure how much power will tolerate of its challenges. Once a lawyer no longer measures the limits of their conduct solely by reference to the law, but must also measure the likely reaction of the administrative authority, the professional frame of reference has been displaced from that moment on. The law is no longer the sole standard; it is encroached upon by an anticipation of the will of power. And at that point, the weakening no longer resides in form; it resides in the institutional function of the profession.
From this emerges an additional but critically important principle: the principle of institutional distance. Given that the nature of the profession involves regular engagement with public power, the subject vested with the authority to influence the space of legal practice must be placed at a distance sufficiently remote from the sites of conflict that lawyers typically enter to defend citizens. That distance is not a formal detail. It is an objective condition of impartiality. Fairness cannot be built on the assumption that those who hold power will always rise above their own positional interests. It must be built by not placing those who hold power within a structure capable of rendering impartiality fragile from the outset. This is also the deeper reason why international standards do not place the discipline of lawyers under the ordinary executive branch, but require an impartial committee of the profession, an independent statutory body, or a court [2].
4. Decree No. 109/2026/NĐ-CP as a Case of Executive Encroachment upon Conditions of Access to Justice
Placed against those two layers of theoretical framework, Decree No. 109/2026/NĐ-CP becomes an object requiring case-study examination of how the executive can encroach upon conditions of access to justice through a flawed design of its relationship with lawyers.
The most concerning aspect of Decree No. 109/2026/NĐ-CP does not lie in any particular penalty levels, but in the geometry of power it constructs. In a great many administrative cases—particularly those concerning land law, land recovery, compulsory enforcement, complaints, and administrative litigation—local-level authorities are typically not bystanders. They are the entities that confirm the origin of land, certify current conditions, compile files, participate in persuasion efforts, cooperate in the implementation of decisions, or are present in the chain of administrative acts that lawyers must subsequently review, disaggregate, and challenge in order to defend their clients. When at that very level, or too close to it, there appears a power capable of acting back upon the space of legal practice, what is taking place is no longer the administrative convenience of devolved management. It becomes a contraction of the institutional distance between those who defend citizens and the branch of power those defenders are challenging.
The conflict here is not merely a risk of individual bias. It is a structurally embedded conflict of interest. On one side is a subject that is part of, or closely proximate to, the chain of administrative acts that a lawyer may be required to disaggregate. On the other side is the person bearing a professional responsibility to disaggregate precisely that chain of acts. When the law permits the first party to acquire additional tools capable of acting upon the second, fairness is no longer guaranteed by structure. It is left to rest on the hope that those who hold power will exercise sufficient restraint not to exploit their structural advantage. But a rigorous rule-of-law order cannot build fairness on moral hope. It must eliminate from the outset those designs that place power in the position of being simultaneously part of the problem and capable of inflicting adverse consequences on the person who is exposing that problem.
Yet the deepest impact of Decree No. 109/2026/NĐ-CP does not lie in the tangible power of enforcement. It lies in the chilling effect on professional conduct. A lawyer is truly independent only when they act under the supreme standard of the law and the lawful interests of those they defend. But if they must begin to ask not only how far the law permits them to go, but also how far power will tolerate their going, then from that moment on the legal profession no longer operates as an institution of rights. It begins to operate as a profession permitted to exist within the discretionary tolerance of power.
This is precisely the point at which Decree No. 109/2026/NĐ-CP encroaches upon conditions of access to justice. Access to justice is not only the right to have a lawyer or the right to go to court. Access to justice also means that a lawyer is able to do their work properly without being compelled to self-assess the “tolerance bandwidth” of power with respect to each step of their challenge. Once a legal structure gives rise to the opposite effect, what is weakened is not merely the convenience of legal practice. What is weakened is citizens’ substantive capacity to use the law to resist public power.
Obligations defined in very broad terms yet with unclear conditions of performance—particularly those relating to anti-money laundering and professional risk management—deepen that effect further still. An obligation can be fairly sanctioned only when the person required to comply knows clearly what they must do, by what means, on the basis of what sources, and to what extent they are accountable. If obligations are broad while performance standards are limited, the law is no longer a reliable norm guiding conduct. It becomes a zone of ambiguity. And for lawyers, that ambiguity does not merely create compliance difficulties; it creates an environment in which practitioners are compelled to become excessively cautious, excessively defensive, and therefore substantively less independent.
If this situation must be reduced to a single concise proposition, that proposition must be: Decree No. 109/2026/NĐ-CP does not merely establish an administrative sanctions mechanism directed at lawyers; it lays bare an executive tendency to encroach upon conditions of access to justice through the administrativisation of the legal status of lawyers.
5. Conclusion
The problem posed by Decree No. 109/2026/NĐ-CP should not be framed as a professional inconvenience or an internal reaction from within the legal profession. To stop at that level would be to reduce the full significance of the matter. What needs to be seen is something deeper: this is a test of the degree of self-restraint of the rule-of-law state.
A State is a genuine rule-of-law state only when it recognises that there are institutions it may regulate but is not permitted to distort. Lawyers are such an institution. The State may, and must, uphold the standards dimension of the legal profession. But the State cannot go so far as to reshape the distance between lawyers and public power, or to compel lawyers to shift the normative standard governing their conduct from the law to an anticipation of how power will react. Once that occurs, the injury will not stop at lawyers. It will extend to citizens themselves, because citizens are the ultimate holders of sovereign power and at the same time the persons who need lawyers as a legal instrument with which to protect themselves against the power that derives from them.
The appropriate response to Decree No. 109/2026/NĐ-CP is therefore to reaffirm a principle that is simple yet strict: institutions brought into existence to challenge, scrutinise, and limit the arbitrariness of power cannot be placed entirely within the same administrative logic that governs ordinary subjects of administrative management. Regulating lawyers is necessary. But regulating lawyers cannot mean administrativising the legal status of lawyers. An institution of justice cannot be drawn too close into the sphere of influence of the very power it has a responsibility to counterbalance.
Only when the problem is viewed from that vantage point does the amendment or limitation of Decree No. 109/2026/NĐ-CP cease to be a concession to professional reaction. It becomes a legitimate demand that the rule-of-law state makes of itself: to know where to stop—at the point where power, if it advances one step further, will begin to undermine the very mechanisms erected to ensure that it does not exceed its limits.
References
[1] National Assembly of the Socialist Republic of Vietnam (2013), Constitution of 2013.
[2] United Nations (1990), Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
[3] Office of the National Assembly (2015), Consolidated Document No. 03/VBHN-VPQH consolidating the Law on Lawyers.
[4] Government of Vietnam (2026), Decree No. 109/2026/NĐ-CP dated 01/4/2026 providing for administrative sanctions in the fields of judicial support services; administrative justice; marriage and family; civil judgment enforcement; corporate and cooperative recovery and bankruptcy.
Lawyer HOANG DOANH TRUNG
PSSLEGAL Law Firm.