Thursday, July 28, 2011
Wenzhou Lawyers Association Forbids Local Lawyers from Taking Train-Crash Related Cases, then Apologizes
It seems a pretty common occurrence in China that following a major disaster, government at some level will attempt to prevent those injured from getting legal representation. This is done sometimes by intimidating the potential clients and sometimes by intimidating, or giving direct orders to, lawyers. We saw this in the melamine poisoning scandal, for example. Some people with whom I’ve discussed this tend to excuse it on the grounds that the Chinese courts simply aren’t equipped, for various reasons, to handle mass tort litigation. This might be true. But then the proper response is to set up a system that will deal with mass torts; this is what happens on an ad hoc basis each time (not necessarily to everyone’s satisfaction), and it should not be beyond the creative capacity of the Chinese government to figure out a more permanent solution if one were desired, or to legislate to deal with particular problems as they arise. India managed to do this with the Union Carbide plant disaster, and I don’t think the Chinese government’s organizational capacity should be considered inferior to India’s. Moreover, if the courts can’t handle these cases, then they can be instructed to dismiss them – this happens in other areas of the law. Parties and their lawyers will learn quickly enough that trying to go to court is a waste of time and resources. Nobody has yet explained to me why intimidation and deprivation of rights the government is willing to allow to exist on paper are an appropriate response to mass torts.
This is all by way of preface to reporting that the predictable has again occurred. Three days after the July 23rd high-speed rail disaster in Wenzhou, China, a notice appeared in the name of the Wenzhou Judicial Bureau and the Wenzhou Lawyers Association (a body administratively under the Judicial Bureau) restricting lawyers from taking crash-related cases. Here’s a translation of one report:
On July 26th, all the major law firms of Wenzhou received a notice from the Wenzhou Municipal Judicial Bureau and the Wenzhou Municipal Lawyers Association entitled “Urgent Notice on Strengthening the Reporting of the Legal Handling of the July 23rd High-Speed Train Accident”. The Notice stipulated that “all law firms and lawyers that receive requests for legal assistance must immediately report to the Section on Management of Lawyers of the municipal Bureau of Justice. They may not on their own give responses or handle cases.”
The content of the “Urgent Notice” is as follows:
Following the July 23rd Accident, Party and government at all levels have actively undertaken assistance activities to appropriately settle injured passengers. Follow-up work is being methodically undertaken. After the completion of the assistance work, issues of post-accident legal dispositions will be placed on the agenda. Some injured passengers and their relatives may seek legal assistance from lawyers in our city. For this reason, you are urgently notified as follows: The July 23rd Accident is a major and sensitive incident. It bears on social stability. Each law firm and lawyer must take it very seriously. All lawyers and law firms who receive requests for legal assistance must, in accordance with the “Zhejiang Province Rules on the Reporting and Handling of Major and Sensitive Incidents by the Legal Profession,” immediately report to the Section on Management of Lawyers of the municipal Bureau of Justice. They may not on their own give responses or handle cases.
“We actually did receive a notice like this, requiring us to report to the Section on Management of Lawyers of the municipal Bureau of Justice after receiving [a request for] legal assistance from relatives in the July 23rd Accident,” said a Wenzhou lawyer who wished to remain anonymous. [He said that] the meaning of this notice was to keep Wenzhou lawyers from getting too involved in this incident, and if they got involved, they had to report to the relevant authorities. “At first, there were many lawyers in Wenzhou who were interested in providing free legal assistance to the families of the dead, but after this notice came down, they didn’t dare take the cases. Even if the relatives came looking for the lawyers, they could only point them to a legal aid center.”
Although this kind of notice is by no means unique in these cases, the train case has sparked special indignation, and somehow pressure was brought to bear on the Wenzhou authorities. On July 28th, they issued a statement apologizing for the notice (although it seems not actually revoking it). The statement blamed the Lawyers Association for issuing the notice without consulting the government. The Lawyers Association for its part claimed that its motive was to prevent bad legal advice from being given in such a complex case, and that it was planning to assemble of team of legal experts to give unified guidance. It stated that the language to the effect that lawyers “may not on their own give responses or handle cases “ had been badly put, and by no means was it their intention to forbid the normal handling of cases by lawyers. It apologized for having thus created misunderstanding among the public. It also apologized for having used the name of the municipal Bureau of Justice as a co-issuer of the notice.