May 20, 2006
New regulations hobble lawyers in mass litigation
Various government and quasi-government bodies at both central and local levels have recently issued regulations designed (in my view) to inhibit lawyers from effectively representing plaintiffs in mass litigation and parties (perhaps including defendants) in other lawsuits deemed "sensitive."
In April, the Shenyang municipal government's Justice Bureau (the body in charge of lawyers) issued its "Several Opinions on Reporting and Requesting Instructions by Lawyers When Handling Important, Difficult, or Sensitive Cases" (沈阳市律师承办重大疑难敏感案件请示报告的若干意见). I don't have the original text, but according to a report on the Ministry of Justice's Web site, lawyers must report to, and seek instructions from, the Justice Bureau before undertaking "important," "difficult," or "sensitive" cases.
Just before that, on March 20, the All-China Lawyers Association issued its "Guidance Opinion on the Undertaking by Lawyers of Mass Cases" (中华全国律师协会关于律师办理群体性案件指导意见). Lawyers who take such cases must report to judicial bodies, government bodies, and the ACLA, and the Opinion is full of language suggesting quite clearly that they should be pretty darn careful about what cases they take and how they handle them. Its reporting requirements leave no room, among other things, for client confidentiality.
For a brief report from the China Digital Times, click here. Below is an analysis, reproduced here with the author's kind permission, contributed to the Chinalaw listserv by Keith Hand, visiting lecturer at the Yale Law School and senior fellow at YLS's China Law Center:
This appears to be a significant development. The opinion applies to both "collective" cases (cases involving more than ten people) and "major sensitive" cases. The opinion requires lawyers to immediately report to local lawyers associations and judicial administrative organs when they take such cases, "accept the supervision and guidance" from these entities, and keep the relevant organs informed when they discover problems that might "intensify" disputes. It admonishes them to have a "high sense of social responsibility" and "respect for the law," "uphold social stability," and focus on helping the parties resolve disputes through legal and peaceful channels. Lawyers are prohibited from encouraging or participating in "petitioning activities," activities that violate social order, or activities that disturb the normal work of state organs as they press for the resolution of disputes. The opinion also direct lawyers to "appropriately grasp" the relationship with media and to "cautiously approach" contacts with foreign organizations and media. Violations may result in professional sanctions. Authorities in some provinces have reportedly issued similar regulations.
The opinion clearly is an attempt to limit the impact of the growing right-upholding movement, which has been effective in accelerating systemic legal reforms in some cases. Interestingly, though, the opinion also explicitly encourages lawyers to pursue cases through the legal system. It recognizes that "the involvement of lawyers in these cases helps the government, enterprises, etc. behave in accordance with law" and that "by becoming involved in individual cases, lawyers can conduct analysis and inquiries and raise legal opinions and suggestions" and "help promote judicial and legislative activities" and "administration according to law." It also contains provisions directing lawyers associations to take action to protect lawyers who encounter difficulties. By limiting extracurricular activities but acknowledging the important role of lawyers using legal channels (and their need for protection), the opinion (presumably issued at the direction of government authorities) would seem to raise the stakes for the government to deliver effective legal channels for resolving disputes, and make it more awkward to repress lawyers who use such channels (sometimes effectively to promote systemic legal reform, as several cases have demonstrated in the past few years).
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Yes, you are right to note the development.
It will also raise a more profound question "What is the harmonious society" as preached by the president Hu Jin Tao. It is definitely wrong for the government to discourage lawyer's pariticipation in the settlement of social problems.
A harmonius society is not one with not a bit of conflicts and ills, but a one with the equilbrium of those conflicts, otherwise, it is a dead society.
Posted by: Doroto | Jun 22, 2006 10:37:50 PM