Based on almost twenty years of practical experience,the Lawyers Law lays down some basic rights and duties of lawyers.In practice,these rights and duties are the most often violated or neglected in China.
Rights
The personal rights of the lawyer
The personal rights of a lawyer are inviolable in the course of his or her practice of law (Article 32).The prohibition of the infringement of personal rights is a constitutional principle.However,the fact that the Lawyers Law repeats this has a practical significance.Since the resumption of the lawyer system,the number of publicised cases on serious infringements of lawyers’personal rights is alarming (58).They include instances where lawyers have been kidnapped and taken into custody,humiliated,or slandered.The home of a number of lawyers were searched and property confiscated,while some lawyers were beaten up.
In 1995,the exposure of a dozen serious cases led to the question being asked publicly:“who protects Chinese lawyers?”(59).On March 22nd,when lawyer Peng Jie in Hunan province met the accused in detention,the accused escaped after colluding with the custody officials.Peng was charged with the crime of dereliction and was sentenced to three years in prison by the local court (his conviction was quashed on appeal).On March 30th,lawyer Ren Shangfei from Hebei province was commissioned by his client to go to Hunan province to handle a dispute.He was kidnapped and taken hostage by the other party to the dispute.He was beaten up,denied food and subjected to other inhuman treatment.He was rescued only on July 29th 1995with the help of the ANCLA and the local procuratorate.On April 10th,lawyer Ma Haiwang in Shanxi province accepted the commission to act as an agent ad litem in a divorce case.He was attacked by the other party,which caused him to lose the sight in his right eye and other serious injuries.In May 1998lawyer Jia Yaojin in Henan province was beaten in the courtroom by the opposing party who then accused the lawyer of having beaten him.The court took no action against the opposing party until the local government ordered the court to do so.Local lawyers also organised a demonstration to support lawyer Jia.The above-mentioned cases have been reported in various journals and newspapers .
The major reasons for these infringements of lawyers’personal rights are the feebleness of citizens’legal awareness,the low professional quality of some judges and procurators,and deficiencies in legal safeguard provisions.Chinese law not only provides inadequate protection of the legal profession,it also contains provisions which can easily allow violation of lawyers’rights.For instance,Article 306of the Criminal Code states that if a defender or agent ad litem destroys or forges evidence,or coerces the witness or entices him into changing his testimony in defiance of the facts or into giving false testimony,he can be sentenced to fixed-term imprisonment.Article 38of the Criminal Procedure Law provides that defence lawyers should not help criminal suspects to conceal,destroy or falsify evidence or to co-ordinate their confessions with each other,stating that violation of this provision should be investigated in terms of legal responsibility.Article 45of the Lawyers Law has a similar provision.These provisions only stress how lawyers should be controlled and the fact that they can be used against lawyers is an ongoing loophole.The protection of lawyers’personal rights must be improved in China if lawyers are to be able to fulfil the role expected of them in fighting legal cases.However,achieving this respect for such rights in China may take a long time.
Rights in the course of litigation
The Criminal Procedure Law,the Civil Procedure Law and the Administrative Procedure Law contain numerous provisions on the rights of the lawyer undertaking litigation.The Lawyers Law not only refers to the protection of all these rights but also specifically lists rights,the protection of which is rather problematic in practice.These include the rights to collect and consult materials related to a case,to meet and correspond with persons whose personal freedoms are restricted,to attend court sessions and participate in litigation,and to debate and defend when acting as agents ad litem or defence counsel (Article 30).In practice,a lawyer’s right to have access to case materials is limited to such documents as the arrest warrant and formal charge document,excluding evidence and documents relating to the facts of the case.Lawyers are often refused permission to see their clients by the detaining authority on the pretext that they are too busy.Lawyers are also first asked to present papers that they would not reasonably have readily available.Lawyers are sometimes even required to pay a fee in order to meet their clients .
Judicial neglect of lawyers’opinions is even more common.Cases in which judges have ordered lawyers to cease their arguments or leave the courtroom because they have presented different opinions are occasionally reported.Some judges,a Report of the Ministry of Justice noted,“deliberately make it more difficult for lawyers to perform their functions,curse,bind and even illegally detain lawyers”(62).On July 11th 1995,lawyer Zhou Chengxi was handcuffed by three judges in an intermediate court and beaten over a period of 75minutes because he insisted on his opinion in a civil case.He suffered serious mental and physical injury (63).The lawyer’s role in facilitating the proper enforcement of the law seems far from being accepted by the Chinese judiciary.There is a saying that “arguments can be made by lawyers,but judges can ignore them in handling cases”.This stark reality results in Chinese lawyers having to find their own counter-measures,such as setting up private relations with judges,or even bribing judges.Currently,the Chinese government is striving to eliminate judicial corruption and is promoting new measures for judicial reform.One may expect that full respect for the rights of lawyers in the course of litigation will help judges to apply the law with greater accurately.
An issue relevant to the correct application of law,which indeed is currently debated in China,is whether a lawyer can request an appeal if he or she believes a judgement to be incorrect.According to the Criminal Procedure Law (Article 180)and the Civil Procedure Law (Article 59),a lawyer has the right to appeal on behalf of clients.Such a right is however conditional on the agreement or commission of their client.Thus,if a client does not want to lodge an appeal for whatever reason,the lawyer cannot request an appeal even when he or she believes a judgement is incorrect.Some scholars and lawyers have advocated that lawyers be entrusted with the right of applying for judicial review:i.e.,lawyers,acting as representatives or defence counsel,should have the right (through lawyers associations),if they believe the judgement or decision of the court is based on incorrect facts or an incorrect application of the law,or a serious violation of procedural law,to submit a written application for review to the court concerned or a higher court.Such a right is considered to be part of the lawyer’s right to protect the legitimate rights and interests of his client.Respect for this right should have some deterrent effect on the courts,so as to ensure that they apply the law in the most accurate way possible .
The right of enquiry
Article 31of the Lawyers Law states that,when handling legal matters,lawyers may make enquiries of organisations or individuals concerned,subject to their consent.Dissatisfaction about the operation of this article is widespread among Chinese lawyers.Although this article extends the scope of the right of enquiry to all legal matters handled by lawyers—unlike in the Provisional Regulations,which limit these matters to litigation,mediation and arbitration—it does not provide any safeguards.The conditional clause making the right “subject to the organisation’s or individual’s consent”makes the binding force of the Article even weaker than it was in the preceding regulations .
The core of the reform of the trial system,which is underway in China,is to stress the parties’responsibility to provide evidence rather than stressing the responsibility of the courts to collect evidence directly.The parties mostly tend to rely on lawyers to do the work.If a lawyer’s right of enquiry cannot sufficiently be secured,their competence to act will be undermined.It should be noted that although the Lawyers Law changes a lawyer’s title from “legal worker of the state”to “legal practitioner”,with the intention of increasing the independence of lawyers,it also has potentially significant side effects.This new status as private individuals may cause some neglect of lawyers’rights by governmental institutions as well as by other citizens.
Duties and legal liability
The Lawyers Law assumes the general duty of lawyers to preserve the principle of confidentiality of state secrets,business secrets and the privacy of the parties concerned (Article 33).A lawyer is not allowed to represent both parties in the same case (Article 34)(66).In response to the most shocking problems in practice,the Lawyers Law further prohibits lawyers from taking illicit gains in cash and in kind (Article 35)(67).Bribery of judicial officers by lawyers is a part of the corruption which is rife in the Chinese legal system.As a result,the Lawyers Law requires that lawyers must not meet judges,procurators or arbitrators in breach of regulations,nor must they entertain them,send gifts to them or bribe them (Article 35).
Article 49provides that if losses are incurred by a client due to an illegal act or negligence by a lawyer,that lawyer’s law firm must bear liability for any compensation payable.If such losses are caused by what is deemed as a lawyer’s intentional or grossly negligent act,the law firm may claim a contribution from that lawyer.However,Article 49is only a provision in principle:the procedure for utilising it has yet to be laid down.In practice,it is simply not the done thing for law firms to provide compensation to their clients .This does not mean that lawyers rarely cause losses to their clients due to their illegal or negligent acts on their part.On the contrary,the number of complaints lodged with regard to wrongdoing by lawyers is on the increase.The most common forms of lawyer misconduct include:after accepting a commission,failure to act as a defence counsel or representative without proper reason;failure to appear in court at the appointed time to participate in litigation or arbitration without proper reason;revealing commercial secrets or infringing the privacy of the parties concerned;making gains from the disputed rights and interests in the case by using the advantage gained by being the lawyer in the case;losing or damaging important client evidence;through delay without proper reason,causing litigation to become time-barred;making significant errors about the nature of a case;and inducing a client to sign or agree to a contract or an agreement which is obviously to the client’s disadvantage .
For a breach of his or her legal duties,a lawyer may be punished with a warning,the suspension of his or her licence to practise,and the confiscation of any illicit gains.If a lawyer’s act constitutes a crime,he or she must bear criminal liability .It is very difficult to obtain official statistics on the punishment of lawyers,since the government authorities consider that the disclosure of such information may damage the image of lawyers in society.However,based on very limited information as provided below,one may gain an impression of the situation.From 1985to 1991,the Ministry of Justice approved the revocation of 63lawyers’licences:among these,24were revoked for bribery,larceny and the like;21were revoked because the lawyer in question had frequented brothels or had conducted an improper relationship with relatives of the parties,or due to “hooliganism”;18were revoked for breach of professional ethics.In Guangdong province,during the 15years following the resumption of the lawyer system,31lawyers were punished for breach of the law or discipline,including 22revocations of legal qualifications,while nine were barred from practising law altogether.As far as the reasons are concerned,6%of the cases concerned the accepting of bribes,etc.;22%had accepted cases and fees individually and had also accepted extra payments;6%had opened up a business without a legal permit;19%of the cases dealt with making false certificates in order to obtain a passport or a lawyer’s certificate,or presenting false evidence in courts;6%concerned negligence in court or slander of the other party;and 31%of cases were due to breaches of discipline,professional ethics and other “inappropriate conduct”.
In observing the performance of Lawyers in China,one must realise that it is a new profession,and needs time to develop.In that process,most lawyers will endure the difficulties this entails,while a few may stray from the straight and narrow.Moreover,certain negative phenomena of the legal profession cannot be treated in isolation from the rest of Chinese society.For instance,in the course of dealing with cases,lawyers meet relevant judges,procurators or arbitrators at their homes,or in restaurants,and bribe them,etc.Undoubtedly,such conduct by lawyers is unacceptable,yet this is actually a reflection within the legal profession of a popular way of getting things done by “going through the back door”or through “personal connections”.It is concluded that “many lawyers would much prefer to rely on legal arguments rather than personal relationships to serve their clients.However,given the present realities,they have no choice but to rely on connections,and fear that if they do not,their client will be disadvantaged”.
In addition,lawyers’misconduct is often linked with judicial corruption,which is so serious in modern China that in recent years the government has become determined to tackle it seriously.But the situation has yet to change significantly.
Lawyers’fees
The payment of fees for legal services is one of the most sensitive and problematic issues whenever the legal profession is discussed.Some Chinese sceptically refer to lawyers as the “new rich”.The Lawyers Law contains no rules on lawyers’fees but merely mentions that detailed measures will be implemented by the Ministry of Justice with the approval of the State Council.So far,the latter has not yet exercised this power.Hence,current law governing lawyers’fees remains the Methods and Standards on the Collection of Attorneys’Fees (“Methods”)issued jointly by the Ministry of Justice,the Ministry of Finance and the State Bureau on Prices in 1990.
The general principle established in the Methods is that law firms decide detailed standards of fee collection within the scope provided by the Methods and in accordance with the complexity of the case,the time spent on the case,the actual amount of money the client received from the lawsuit,and the lawyer’s professional rank (Article 3).In dealing with civil,economic and administrative cases that involve property relationships,apart from collecting a handling fee,law firms may ask for payment of a certain percentage of the amount claimed in the dispute (Article 6).If the legal affairs handled by lawyers are difficult and complicated,lawyers’fees can be raised within a limit not exceeding twice the amount provided in the Methods (Article 8).As far as providing legal services to foreigners,overseas Chinese from Hong Kong,Macao and Taiwan is concerned,fees can be decided,according to the lawyer’s level and the amount of work,by consultation with clients or by calculating hours of work (Article 9).
Pursuant to the Methods,the standards pertaining to the collection of fees are divided into eight categories:answering legal inquires,drafting legal documents,handling criminal cases,handing civil cases,handling economic cases,handling administrative cases,acting as legal advisors,and representation in non-litigation matters.For each category,the maximum and minimum fees are given.For instance,it provides that in handling criminal cases of the first instance,the fee ranges from 30to 150yuan ($US 1=8.84yuan).For drafting civil contracts,fees range from 10to 50yuan.In dealing with civil cases involving property relationships,handling costs range from 100to 200yuan;apart from this,fees can be charged up to a certain percentage of the amount in dispute:for example,if the amount in dispute exceeds 5,000yuan,3%can be charged for the part between 5,001to 10,000yuan.
Since the standards as provided are generally too low,little more than lip-service is paid to them in practice.In rural areas these standards may remain relevant,whereas in urban districts,especially in large cities,they have no real influence.For instance,it is reported that in Heilongjiang province,while lawyers from large cities can charge a few thousand yuan for handling criminal cases,lawyers in small cities or counties usually charge 300to 500yuan .Lawyer Zheng Chuanben in Shanghai charged 160,000yuan for defending two murder suspects .Obviously,the discrepancies here can be enormous.
Most commonly,lawyers and clients consult and agree on the fees to be paid.This practice has actually been tacitly consented to or even supported.For instance,a lawyer in Hunan concluded a contract with a client for a compensation case in which they agreed that if the case should succeed then the lawyer would receive 10%of the amount of the claim;but the client was in the end reluctant to pay the amount.The lawyer brought the case to the court and the court ordered the client to pay the lawyer the amount as agreed .
The lack in practice of operational standards on fee collection has caused many problems,especially where charges are too high or the standards are without any firm legal basis.These problems have led to Chinese lawyers acquiring a bad image,particularly in large cities.People complain that while the legal services provided by Chinese lawyers are not yet up to international standards,the fees certainly are.
It seems likely that establishing a uniform standard for the collection of lawyers’fees will be a difficult task given the increasingly uneven economic development in different parts of China.It is rational that fees can be higher in more economically advanced areas than in poor areas.Thus,local legislation at provincial level may well be used to produce realistic and sensible standards.
Over the last 20years,the extensive promulgation of new laws,administrative regulations and local rules and regulations,has established and complicated the contemporary Chinese legal system.Economic reform and the expansion of commercial activities have created and expanded the markets for legal services.The goal to build and establish the rule of law in a civil society has made the role of lawyers indispensable in securing maximum proper enforcement of the law.The Chinese legal profession has never experienced such a rapid expansion nor respect throughout its history as it does today.
However,as a highly and professionally demanding occupation,the rapid growth of the profession also presents significant problems.The most serious of these are competence and professional responsibility .Lack of experience along with tradition and a high demand within a short period,have meant that Chinese lawyers seem to have had little or no time or opportunity to become fully trained before they take on the responsibility of practising law.In addition,the overall legal system in China remains at an early stage of development.Legal uncertainty,especially when coupled with judicial corruption,makes Chinese lawyers a less trustworthy business proposition when compared with the profession in the Western world.One may assume that a healthy development of the legal profession will depend not only upon the improvement of the quality of lawyers,and their professional ethics and discipline,but also upon the judicial system and the social environment in which law is practised.Lawyers do not live and function in their own little world.The lawyer system is part of the legal system which,as a whole,is undergoing significant and systematic change.Thus,the improvement of the legal profession to a level where it meets international standards will largely depend on the success or failure of the current legal reforms.One cannot expect the development of a competent and respectable legal profession when it operates within an immature and corrupt legal system.
However,this does not mean that at least some aspects of the legal profession cannot be improved before the reform of China’s legal system is complete.One may observe that legal reform,in the same way as economic reform,in China,is being undertaken in a phased manner.At present,changes in the trial system and measures against judicial corruption are high on the reform agenda.Meanwhile,laws are also being enacted to improve other components of the legal system.The 1997Lawyers Law is an essential part of such efforts.The Law is intended to improve the legal profession in several respects.Lawyers are defined as “legal practitioners”instead of “legal workers of the state”as provided for in the preceding law.Practising lawyers are members of local lawyer associations which are self-regulating organisations;previously,they were institutionally affiliated with the Ministry of Justice.Lawyers are encouraged to practise law in partnership or in co-operative law firms,which are private firms as in Western countries.The Law also emphasises the protection of the lawyer’s right to debate and defend in the courts.There is no restriction under the Law on the scope of legal practice.Thus,Chinese lawyers can enter any field to provide legal services.The implementation of the Lawyers Law certainly is helping to move the Chinese legal profession towards becoming an independent and competent profession,safeguarding justice and meeting the needs of a market economy.Given all of this,it is of great significance to keep abreast of the impact of the Lawyers Law is having in the wider context of legal and economic reform in China today.
