How Can Family Members Abroad Retain a Criminal Defense Lawyer in China?

When a foreign national is held in custody in China on suspicion of a crime while family members are abroad, one of the first practical questions is often not about the merits of the case, but about something much more immediate:

How can family members overseas actually retain a criminal defense lawyer in China?

Being outside China does not necessarily mean that a family member must first travel to China before contacting counsel or beginning the retention process. But who is legally entitled to retain defense counsel on behalf of a person in custody, what documents may be required, and whether documents created or issued abroad need translation, notarization, an Apostille, or consular legalization all depend on the person’s relationship to the detainee and the procedural stage of the case.

This article focuses primarily on cases in which a foreign national is suspected of a crime in China and the person’s family members are abroad. The basic rules allowing guardians and close relatives to retain counsel may also be relevant in other criminal cases. However, the special rules discussed below concerning foreign-national defendants, their country’s embassy or consulate in China, and authorization or relationship documents originating abroad should not automatically be applied to cases in which the person in custody is a Chinese citizen and only the family members happen to live overseas.

For most families abroad, a more reliable sequence is:

First confirm the case and the identity and legal relationship of the person who will retain counsel. Then provide the available materials to the lawyer for review. Once the procedural stage is clear, determine what translation, notarization, Apostille, or other authentication formalities are actually required based on the country where the documents were created or issued and the requirements of the authority handling the case.

It is generally better not to put every document through the same authentication process before the actual requirements have been confirmed.

1. First Distinguish Between Contacting a Lawyer and Lawfully Retaining Defense Counsel

Anyone may help a person in custody locate a lawyer, contact a law firm, provide case information, or seek legal advice.

But in Chinese criminal procedure, who may formally retain defense counsel on behalf of a criminal suspect or defendant in custody is a question governed by law.

Article 34 of the Criminal Procedure Law of the People’s Republic of China provides that a criminal suspect has the right to retain defense counsel from the date of the first interrogation by an investigating organ or from the date a compulsory measure is imposed. During the investigation stage, only a lawyer may serve as defense counsel. If the criminal suspect or defendant is in custody, the person’s guardian or close relative may also retain defense counsel on the person’s behalf.

Several different questions therefore need to be kept separate:

• Who may contact a lawyer;
• Who may provide case information to the lawyer;
• Who may discuss legal services and fees with the law firm;
• Who is legally entitled to retain defense counsel on behalf of the person in custody; and
• Where the person’s own choice of counsel must be confirmed, whether the person in custody accepts the proposed defense arrangement.

A friend, unmarried partner, coworker, employer, or business associate may be closely involved in helping with the case, but that relationship alone does not make the person a statutory “close relative” entitled to retain defense counsel in that capacity.

This does not mean that someone outside the statutory category can never help facilitate access to counsel. If a criminal suspect or defendant in custody personally requests to retain defense counsel, the public security organ, People’s Procuratorate, or People’s Court must promptly convey that request. How the engagement is then completed depends on the circumstances of the case.

2. Which Family Members Qualify as “Close Relatives” Under Chinese Criminal Procedure?

“Close relative” has a specific statutory meaning under Chinese criminal procedure. It does not include every person who would ordinarily be regarded as a relative.

Article 108 of the Criminal Procedure Law defines close relatives as:

husband, wife, father, mother, son, daughter, and full siblings.

Accordingly, a spouse, parent, child, or full sibling falls within the statutory category.

By contrast, the following persons do not qualify as close relatives merely because they have a close personal or family relationship with the person in custody:

• An unmarried partner;
• Cousins;
• Uncles, aunts, and other extended relatives;
• Friends;
• Coworkers;
• Employers; or
• Business associates.

They may still help locate counsel, transmit available information, or assist someone who is legally entitled to act, but they should not sign an authorization on the assumption that they qualify as a statutory close relative.

3. If the Person in Custody Is a Foreign National, What Type of Lawyer Should Be Retained?

A foreign national suspected of a crime in China is subject to Chinese criminal procedure.

Under the Provisions on Procedures for Handling Criminal Cases by Public Security Organs, a foreign-national criminal suspect who retains defense counsel must retain a lawyer practicing at a law firm in the People’s Republic of China.

At the trial stage, the Supreme People’s Court’s Interpretation on the Application of the Criminal Procedure Law further provides that a foreign defendant who retains a lawyer for the defense must retain a lawyer who has lawyer qualifications in the People’s Republic of China and has lawfully obtained a practicing certificate.

Family members abroad should therefore distinguish between two different roles:

A lawyer in another country may advise the family or assist with cross-border matters, but that is different from acting as defense counsel in Chinese criminal proceedings.

A foreign lawyer does not acquire the right to act as defense counsel in a Chinese criminal case merely because the lawyer has been retained by the family overseas.

4. What Should the Family Prepare Before First Contacting a Lawyer in China?

A family does not need to complete every notarization, Apostille, or authentication formality before making initial contact with counsel.

At the beginning, it is more important to organize the basic identifying information and case materials already available.

This may include:

• The detainee’s Chinese and foreign-language names;
• Nationality;
• Passport or other identification details;
• The approximate date and time when the person was taken away, detained, or arrested;
• The investigating or case-handling authority, if known;
• The detention center, if known;
• The suspected offense, if known;
• Any detention notice, arrest notice, or other official document already received;
• Identification of the family member abroad;
• The relationship between that family member and the person in custody; and
• Any known facts and relevant materials concerning the case.

If the family currently has only a photograph of a detention notice, that may still be enough to begin verifying the case with counsel.

There is generally no reason to stop contacting lawyers simply because a relationship certificate has not yet been notarized or a translation has not yet been prepared.

The documents ultimately required should be determined after confirming who will retain counsel, what stage the case has reached, and where the relevant documents were created or issued.

5. What Documents Do Family Members Abroad Commonly Need to Prepare?

The documents required can vary depending on the procedural stage, the authority handling the case, the country where the documents were created, and the relationship between the person retaining counsel and the person in custody.

The following is therefore not a single nationwide checklist that must be submitted in every case.

Typical categories include:

1. Identification of the Person Retaining Counsel

This may include a passport, national identity card, or another form of identification recognized in the relevant country.

2. Identification and Case Information of the Person in Custody

This may include the person’s name, nationality, passport information, and the case information currently available.

3. Proof of Family Relationship

If the lawyer is being retained by a guardian or close relative, it may be necessary to establish the relationship between that person and the detainee.

Depending on the country, relevant documents may include:

• A marriage certificate;
• A birth certificate;
• Household or family-registration records; or
• Other official documents capable of establishing the relationship.

Whether a particular document is sufficient cannot be determined without considering the country that issued it and the requirements of the authority reviewing the engagement.

4. Authorization and Law-Firm Engagement Documents

The law firm will normally prepare the appropriate engagement and authorization documents based on the procedural stage of the case.

One distinction is particularly important:

The legal services agreement, the fee arrangement, and the written authorization used to establish the lawyer’s status as defense counsel before the case-handling authority do not serve exactly the same function.

Payment of legal fees alone does not necessarily mean that every procedural step required to establish the lawyer’s status as defense counsel before the case-handling authority has already been completed.

6. Investigation Stage: Must an Overseas Engagement Be Notarized and Apostilled First?

There is no universal answer.

At the public security investigation stage, Article 34 of the Criminal Procedure Law and Article 44 of the Provisions on Procedures for Handling Criminal Cases by Public Security Organs address the central rule that a guardian or close relative of a criminal suspect in custody may retain a defense lawyer on the suspect’s behalf.

Those provisions do not establish a blanket rule that:

Every engagement by a family member abroad must first complete “notarization + Apostille” or “notarization + consular legalization” before a lawyer can act in the case.

Accordingly, the form required for identification documents, proof of relationship, and authorization documents created abroad during the investigation stage should be assessed in light of:

• The country where the document was created or issued;
• The nature of the document;
• The relationship between the person retaining counsel and the person in custody; and
• The specific requirements used by the public security organ or detention center to verify the engagement.

For this reason, family members abroad generally do not need to put every document through the same authentication procedure before the case and the authority’s actual requirements have been confirmed.

7. Review-for-Prosecution Stage: What Happens After Counsel Accepts the Engagement?

Once a case is transferred to a People’s Procuratorate for review for prosecution, it enters a new procedural stage.

Article 41 of the Rules of Criminal Procedure for the People’s Procuratorates provides that if a criminal suspect in custody, or a suspect under residential surveillance at a designated residence, requests to retain defense counsel, the People’s Procuratorate must promptly convey that request to the suspect’s guardian, close relative, or designated person.

Article 45 further provides that when defense counsel notifies the People’s Procuratorate after accepting an engagement, the department responsible for case management must promptly register the defense counsel’s information. For a defense lawyer handling the matter, the department checks the lawyer’s practicing certificate, a certificate from the law firm, and the written authorization or legal aid letter, as applicable.

Family members abroad should therefore continue to consider whether authorization documents and proof of relationship can satisfy the Procuratorate’s verification requirements once the case has entered the review-for-prosecution stage.

However, the particular authentication formalities required for identification documents, relationship documents, and authorizations originating abroad must still be assessed according to the nature of the materials and the requirements of the authority reviewing them.

The fact that a case has reached the Procuratorate does not mean that every foreign-document requirement found in Article 486 of the Supreme People’s Court’s rules for the trial stage should automatically be imported into the review-for-prosecution stage.

8. Trial Stage: The Rules for Documents From Abroad Become More Specific

Once the case reaches a People’s Court, the Supreme People’s Court has more specific rules governing foreign defendants and documents originating abroad.

Article 485 of the Supreme People’s Court’s Interpretation on the Application of the Criminal Procedure Law provides that if a foreign defendant is in custody, the defendant’s guardian, close relative, or the embassy or consulate in China of the defendant’s country of nationality may retain defense counsel on the defendant’s behalf. A guardian or close relative doing so must provide valid proof of the relationship with the defendant.

Article 486 further addresses powers of attorney sent or delivered from outside the People’s Republic of China by foreign-national parties to Chinese lawyers or Chinese citizens, as well as proof submitted by the guardians or close relatives of foreign-national parties establishing their relationship with the party. These documents must comply with the proof and authentication formalities prescribed by that article, while the article also preserves the possibility of proceeding in accordance with treaties concluded between China and the relevant foreign country.

Accordingly:

The trial-stage requirements in Article 486 should not be treated as a universal rule governing every overseas engagement during the investigation stage. Conversely, the fact that more simplified documents may have been accepted during the investigation does not mean that no additional proof will be required once the case reaches court.

Since the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents took effect for China in 2023, public documents falling within the Convention and involving another Contracting State should be handled by taking into account the treaty route contemplated by Article 486 and the applicable Apostille rules.

9. What Does an Apostille Actually Do?

The Convention Abolishing the Requirement of Legalisation for Foreign Public Documents took effect for China on November 7, 2023.

For a public document that falls within the Convention, originates in another Contracting State, and is intended for use in mainland China, an Apostille issued by the competent authority of that state generally replaces the traditional requirement for consular legalization by a Chinese embassy or consulate.

Between China and countries that are not parties to the Convention, the previous consular legalization process may still apply.

However, an Apostille addresses the authentication of a public document for cross-border use. It does not mean that every private document can simply receive an Apostille and then be used without any further formality.

As explained by China’s Ministry of Foreign Affairs, an Apostille generally certifies the authenticity of the final seal, signature, or similar formal element appearing on a public document. It does not certify that the substantive contents of the document are true or lawful.

Accordingly, whether a power of attorney or proof of family relationship must first be notarized, or otherwise converted into a form that qualifies as a public document eligible for an Apostille, should be determined by reference to:

• The nature of the document;
• The law and document system of the country where it was created or issued;
• The treaty relationship between China and that country; and
• The requirements of the Chinese authority that will receive the document.

The following two statements are therefore both too absolute:

“Every overseas engagement requires notarization, authentication by the relevant foreign authority, and legalization by a Chinese embassy or consulate.”

and:

“Now that Apostilles exist, an Apostille is the only formality required.”

10. If Legal Aid Counsel Has Already Been Assigned, May the Family Still Retain Another Lawyer?

The 2025 rules expressly address this situation.

If a legal aid institution has already assigned a lawyer to provide legal aid and act as defense counsel for a criminal suspect or defendant in custody, and the person’s guardian or close relative later retains another defense counsel, the separately retained defense counsel is still entitled to meet with the criminal suspect or defendant.

After that meeting, if the criminal suspect or defendant chooses the defense counsel retained by the guardian or close relative, the People’s Court or People’s Procuratorate is to proceed in accordance with the Reply and promptly notify the legal aid institution so that legal aid can be terminated in accordance with law.

The Reply took effect on June 27, 2025.

The rule is directed primarily at the following situation:

Legal aid counsel is already in place, the guardian or close relative later retains another defense counsel, and the legal system must protect the person in custody’s own choice of defense counsel.

It should not be expanded into a rule requiring a separate “second confirmation” procedure in every ordinary criminal defense engagement.

11. May an Embassy or Consulate in China Retain Defense Counsel for a Foreign Defendant in Custody?

The answer depends on the procedural stage.

At the trial stage, Article 485 of the Supreme People’s Court’s Interpretation on the Application of the Criminal Procedure Law expressly provides that when a foreign defendant is in custody, the embassy or consulate in China of the defendant’s country of nationality may retain defense counsel on the defendant’s behalf.

That rule does not automatically mean that:

Every foreign embassy or consulate in China has exactly the same authority to retain defense counsel during the public security investigation stage.

During the investigation stage, the formal defense engagement must still be assessed under the Criminal Procedure Law, the procedural rules governing public security organs, and applicable consular rules.

Accordingly, consular assistance and the formal retention of defense counsel in Chinese criminal proceedings remain distinct legal concepts.

12. A More Reliable Practical Sequence for Families Abroad

If a family member is suddenly taken into custody in China, the family abroad usually does not need to complete every authentication procedure before first speaking with counsel.

Step 1: Confirm the Case

Try to identify:

• The authority handling the case;
• The place of custody;
• The suspected offense; and
• Any official documents already received.

Step 2: Determine Who Will Retain Counsel

Confirm whether the person intending to act is the detainee’s guardian or a statutory close relative under Chinese criminal procedure.

If not, the person should not simply claim “close relative” status. Instead, the appropriate next step should be determined through a lawful route, which may include having the person in custody personally express a request to retain counsel.

Step 3: Provide the Available Materials to the Lawyer First

Identification, a detention notice, and proof of family relationship may still be useful for an initial case assessment even if the foreign-document formalities have not yet been completed.

Counsel can then determine what additional materials are actually needed.

Step 4: Identify the Procedural Stage

Confirm whether the case is currently at the:

• Public security investigation stage;
• People’s Procuratorate review-for-prosecution stage; or
• People’s Court trial stage.

Step 5: Complete Only the Foreign-Document Formalities That Are Actually Required

Based on the country where the documents were created or issued, the nature of the documents, and the requirements of the receiving authority, determine whether the case requires:

• Translation;
• Notarization;
• An Apostille;
• Consular legalization; or
• Other authentication or proof.

This approach can reduce duplicated work and avoid spending time on formalities that the relevant authority does not actually require.

13. Frequently Asked Questions

1. Must a Family Member Travel to China in Person Before Retaining a Lawyer?

Not as a general rule.

Chinese criminal procedure expressly allows a guardian or close relative of a criminal suspect or defendant in custody to retain defense counsel on that person’s behalf.

When the family member is abroad, however, the way in which identity, family relationship, and authorization documents must be verified depends on the procedural stage and the country in which the documents were created or issued.

2. Can a Boyfriend or Girlfriend Directly Retain Criminal Defense Counsel on the Detainee’s Behalf?

A boyfriend or girlfriend does not qualify as a statutory “close relative” under Article 108 of the Criminal Procedure Law merely because of the romantic relationship.

The person may contact lawyers, provide information, or assist someone who is legally qualified to handle the engagement, but the romantic relationship alone does not permit the person to act as a statutory close relative.

If the person in custody personally requests to retain counsel, the appropriate next steps should be determined based on that person’s wishes and the applicable procedural rules.

3. Does Every Proof of Family Relationship Require an Apostille?

No.

Whether an Apostille is required depends on:

• The country where the document was created or issued;
• Whether the document falls within the scope of the Convention;
• The nature of the document;
• The procedural stage of the criminal case; and
• The requirements of the Chinese authority receiving the document.

An Apostille also does not automatically replace any notarization or other preliminary formality that may be required for the particular document.

4. If Legal Aid Counsel Has Already Been Assigned, Does That Prevent the Family From Retaining Another Lawyer?

No.

Under the 2025 Reply issued by the Supreme People’s Court and the Supreme People’s Procuratorate, when legal aid counsel has already been assigned, defense counsel later retained by the person’s guardian or close relative is still entitled to meet with the criminal suspect or defendant in custody.

The rule is designed to protect the person’s own right to choose defense counsel.

5. If a Family Member Abroad Has Already Paid the Legal Fees, Does That Mean the Lawyer Can Already Act as Defense Counsel in the Case?

Not necessarily.

Payment of legal fees is part of the legal services arrangement. Whether the lawyer is already able to participate in the criminal proceedings as defense counsel also depends on matters such as:

• Whether the person who retained counsel has the legal authority to do so;
• Whether the required authorization documents have been completed;
• Whether counsel has made the required notification or submitted the necessary materials to the authority handling the case; and
• In situations where the person’s own choice must be confirmed, the wishes of the person in custody.

Article 34 of the Criminal Procedure Law also provides that once defense counsel accepts an engagement, counsel must promptly notify the authority handling the case.