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Lawyers in ChinaA “flourishing” profession in a rapidly changing society?

In recent years, the legal profession has been referred to by the Chinese as a “flourishing industry”, with the connotation that it is overwhelmingly popular, promises a decent income and consequently enjoys an increasingly higher level of social prestige. In a country where resentment of lawyers is a deeply-rooted tradition and, moreover, where the resumption of a system of lawyers has only a twenty year history, the current standing of the profession has aroused international interest. It can be said that the rapid development of the legal profession is a reflection of rapid legal development in the People’s Republic of China (PRC) in general. Meanwhile, the close link between legal practitioners and economic reform has driven the former to evolve faster than other legal professionals. In today’s China, judges, procurators, law researchers and teachers enjoy far less fashionable careers than lawyers do.

However, being a lawyer in China is not the ideal profession many think it to be as Chinese lawyers encounter many awkward problems in day-to-day practice that are hardly imaginable in the Western world. This article briefly examines the history of the legal profession in China before analysing the basic rules governing legal practice as provided in the 1997 Lawyers Law. China’s ongoing economic, legal and political reforms offer lawyers unprecedented and wide-ranging opportunities to practise law, but at the same time the transitional nature of China’s economic and political system causes this profession some unique problems. This article not only discusses the rapid expansion of the legal profession, the positive role lawyers have been playing in building up the rule of law in China, but also delves into some of the challenges for, and significant troubles of, this infant professional group.

Lawyers in Pre-PRC Time

According to scholars of Chinese legal history, ancient China had developed some rules to regulate litigation. For instance, the principle that members of the same household could not testify against one another—especially not before the state authorities. The same principle applied to the relationship between master and servant. Anyone violating the principle and lodging an appeal would be punished. In addition, compliance papers had to be written according to a certain form; otherwise the plaintiff would be punished. Since ordinary people had no knowledge of litigation, they had to seek expert help. Thus, some “intellectuals” became specialised in assisting people to make complaints. They were called “litigation tricksters” (songgun). In the Ming and Qing dynasties, litigation tricksters were widely known in society (1). However, in imperial China this did not result in the emergence of a lawyer’s profession. Moreover, these litigation tricksters were condemned or even punished by the authorities (2). “The legal annals of the Qing dynasty contain a number of reports of cases in which legal draughtsman received three years of penal servitude or worse for their efforts” (3).

Lawyers first appeared in China in the modern era as the result of foreign influence. After the Opium War in 1840, when several European countries acquired extra-territorial consular jurisdiction and established consular courts, foreign lawyers started to work in China. They initially worked in foreign concessions, and later also acted as legal counsels or representatives in Chinese courts. They represented not only foreigners but also Chinese citizens. Concerned about the situation that some Chinese were relying on foreign lawyers to defend them in conflicts with foreigners, the Minister for Law Reform of the late Qing Dynasty, Shen Jiaben, wrote to the Emperor saying that foreign lawyers would not help the Chinese where this might disadvantage that lawyer’s own countryman. He thus suggested the establishment of a system that should produce Chinese lawyers. Consequently, the criminal and civil procedure codes, which were drafted in 1910, imitated the Western system, providing qualification, registration, responsibility, punishment provisions and the like. However, the draft codes never became effective (4).

In 1911, Sun Yat-sen led the Xinhai revolution, which overthrew the Qing dynasty and established the Republic of China. Sun Yat-sen supported the drafting of a law on lawyers, but his government survived for only three months and the draft law was never issued (5).

In 1912, Yuan Shikai set up the Peking government and inherited the legal system created at the end of the Qing Dynasty. The government issued the Provisional Regulations on Lawyers, the Provisional Regulations on the Registration of Lawyers and other detailed rules. These laws laid down the basic rules for lawyers. They had to be above the age of 20, graduating of universities of politics and law, and had to have passed the lawyer’s examination. Women were not allowed to become lawyers. To practise law, a lawyer had to be a member of a lawyers association (6). The Provisional Regulations laid down the lawyer’s functions in court. Lawyers could appear in ordinary and special courts, either appointed by a client or by court order. This was the first time that lawyers were specifically authorised to appear in Chinese courts. When the Provisional Regulations were revised in 1917, other functions of lawyers were formally recognised, such as their appointment by clients for the drafting of contracts and wills, or their entering into contracts and other legal documents on a client’s behalf (7).

From 1927 to 1944, the Chiang Kai-shek government continued to apply the previous lawyer system, while it revised old laws and enacted new ones. Women were subsequently allowed to become lawyers. The minimum permitted age for a lawyer was raised to 21. The rights of lawyers associations were expanded to include making proposals to the Minister of Justice on law reform. A special procedure for handling the punishment of lawyers was established. These laws constituted the basis of the lawyer system during the Kuomintang period and are the origin of the lawyer system in today’s Taiwan today (8).

Obviously, from the late Qing dynasty to the Republic of China, each authority paid some attention to the lawyer system. Consequently, the legal profession gradually became established and bar associations appeared in big cities. The Shanghai Bar Association was the most dynamic. It had, in particular, acted effectively against foreign legal privileges and in championing judicial independence (9). However, due to continuous war, frequent changes of government, and the lack of a tradition of using lawyers in Chinese society, the lawyer system never flourished. In 1913, there were only about 1,700 lawyers registered with the Ministry of Justice. By 1935, the number had risen to 10,249, while by 1943 it had dropped slightly to 9,245. By the early 1940s, the population in China was about 450 million. Though China had about 10,000 lawyers, the overall ratio of lawyers to the population was hence one per 45,000 (10).

Lawyers in PRC

The establishment and development of the lawyer system since the founding of the PRC has been bumpy. It can be roughly divided into three stages.

1950 to 1957

When the PRC was established on October 1st 1949, the government issued a Common Programme (11) (provisional constitution) and announced the abolition of the Kuomintang legal system. The judicial system, along with the affiliated legal profession, was no exception. The Circular Concerning the Abolition of Underground Lawyers and Litigation Tricksters” issued by the Ministry of Justice in December 1950, clearly stated the abrogation of the lawyer system, the dissolution of the lawyers organisations, and the cessation of lawyers’ activities under the previous regime (12). Lawyers from the defeated regime were denounced as representatives of an exploiting class and “Only a few lawyers were upright and fair-minded and dared to speak for the people” (13).

After abolishing the old system, the government tried to set up a new system by enacting new laws. The General Principles of People’s Courts, issued by the central government in 1950, the 1954 Constitution and the Organic Law of the People’s Courts provided the right for an accused person to be defended and established a system of defence lawyers (14).

In July 1954, the Ministry of Justice authorised Peking, Shanghai and a couple of other large cities to set up legal advice offices to engage in lawyers’ work (15). In January 1956, the Ministry of Justice submitted a Report Concerning Establishing Our Country’s Lawyers’ Work, which suggested setting up a lawyer system by enacting rules on a national level. Consequently, the Provisional Regulations on Lawyers were drafted in 1957. Up to June 1957, 19 lawyers associations and 817 legal advice offices were established. There were about 2,500 full time lawyers and 300 adjunct lawyers working in 33 cities in China. Lawyers were treated as public servants and private law firms were not allowed to exist. The professional work of a lawyer included criminal defence, acting as legal advisers and representatives in civil cases, drafting legal documents and responding to legal inquiries (16).

1957 to 1977

The characteristic feature of this period was the absence of practising lawyers in China. In the middle of 1957, the expansion of the Anti-Rightist Movement resulted in many lawyers being treated as rightists; as a result, they were sent to the countryside. The lawyer system was criticised as a capitalist remnant of a bygone era. In 1959, the Ministry of Justice was removed. Lawyers organisations were also soon dismantled (17).

1978 to the present

As part of the nation-wide reconstruction of its legal system, the government decided to revive the legal profession. The 1978 Constitution re-established the system of advocacy. The 1979 Criminal Law, the Criminal Procedure Law and the Organic Law of the People’s Courts provided the right for the accused to be defended as well as the basic principles of criminal defence by lawyers. In 1979, experimentation with professional legal work began; in Hulan county of Heilongjiang province, criminal defence by lawyers was allowed on a trial basis; in Canton, a legal advisory office was established to handle foreign-related maritime cases; and in Shanghai, a lawyers association was established (18).

In September 1979, the Ministry of Justice was re-established. Among other functions, it was authorised to take charge of the administration of the legal profession. In August 1980, the Provisional Regulations of the People’s Republic of China on Lawyers were promulgated by the National People’s Congress Standing Committee (19). Provisions were made for the responsibilities, rights, qualifications and business organisation of Chinese lawyers. Lawyers were defined as “legal workers of the State” with the task of providing legal assistance to government, enterprises and citizens. “Legal advisory offices” were the business organisations in which lawyers practised. Lawyers could serve as legal advisers, act as representatives in civil litigation, mediation or arbitration, and defence counsel in criminal cases, and to give legal assistance in non-litigation matters, provide consultative advice and draft various legal documents. To be qualified as a lawyer, one had to cherish the PRC, support the socialist system, have the right to vote and stand for election and, moreover, had to be examined and approved by the Bureau of Justice Office affiliated to the provincial government.

Although the Regulations contained only 21 general provisions, they legitimised the legal profession in China. Since then, the ranks of the legal profession have expanded swiftly. It is estimated that from 1979 to 1984, there were about 11,000 lawyers in China. This number had increased to 45,666 by 1992; 68,834 by 1993; 83,619 by 1994; 90,602 by 1995; 100,198 by 1996; and 98,902 by 1997 (20). By the end of 1998, there were around 110,000 Chinese lawyers in the PRC (21). The government target was to have approximately 150,000 lawyers by the end of 2000. The aim is that by then around 50% would hold a Bachelor’s degree (xueshi) in law; 30% under the age of 40 in large and medium-sized cities and economically developed coastal areas would possess a Master’s degree (suoshi), and that there would be about 10,000 high-level lawyers who understood law, economics and foreign languages (22).

Along with the expansion of the number of lawyers, a lawyer system has gradually taken shape. Since 1986, a national bar examination has been administered by the Ministry of Justice initially on a biannual basis, and annually since 1993. In 1986, 11,024 candidates sat the examination of which 3,307 passed. Ten years later, the number of candidates increased to 127,000. In November 1998, 180,000 candidates took the bar exam. In the last ten years, only 10% of the candidates passed it. Candidates ranged in age from young graduates to older retired judges and prosecutors (23).

Business organisations in which lawyers practise have also undergone considerable change. The state-owned law firms were the only organisations in which lawyers could practise law until 1988 when the first co-operative law firm appeared in Baoding city in Hebei province. Subsequently, similar law firms began to appear in other large cities (24). In May 1988, the Ministry of Justice issued the Trial Scheme for Co-operative Law Firms which formally legalised these firms. In 1993, the Ministry of Justice issued Proposals on Deepening Lawyers’ Reform, which legitimised the existence of partnership law firms (25).

The number of fields of legal practice has also increased. Gradually, the profession has expanded into participating in contract negotiation, acting as agent ad litem in trademark, patent and copyright matters, and dealing with matters in other emerging and more technical fields. In large cities, lawyers are deeply involved in foreign investment and other highly profitable commercial areas.

The Lawyers Law of the PRC

The expansion in both the number of lawyers and the quantity of their work increased the requirements and expectations of their professionalism. In 1989, the Ministry of Justice started to draft a law to govern the profession of lawyers. It took about seven years before the Lawyers Law of the People’s Republic of China on Lawyers was finally promulgated by the National People’s Congress Standing Committee on May 15th 1996 (26). It came into force on January 1st 1997. This Law contains 53 Articles covering the qualification of lawyers, the management of law firms, the rights and duties of lawyers, legal liability and legal aid.

Qualification requirements

To practise as a Chinese lawyer, the candidate must first meet the qualifications required to become a lawyer and then must obtain a certificate to practise.

• Lawyer’s qualification

Under the Lawyers Law, there are two avenues by which a person may qualify as a lawyer (27). The first is to pass the national bar examination (NBE). Qualified candidates include: (a) those who have studied in law faculties of universities and obtained diplomas at tertiary level (zhuanke) or higher; (b) those who hold the same level of professional skills as in (a); and (c) those who have received a Bachelor’s degree or above in other university subjects. The second avenue is to be granted the title of “lawyer” upon assessment and approval (kaohe) by the judicial administrative department of the State Council. Eligible candidates include those who have obtained a Bachelor’s degree or higher from law faculty of a university, and are engaged in research or teaching law with senior professional titles, or who have attained the same level of professional skills.

Passing the NBE is the most common way of obtaining a lawyer’s qualification. The kaohe system is only supplementary to the NBE (28). However, allowing such a two-track system is open to criticism. The Minister of Justice defended this dual system by claiming that candidates qualified through the kaohe system “are of a higher cultural level and have engaged in legal professional work for a longer period of time and are of a higher level of legal proficiency” (29). Many do not view this as a satisfactory institution of qualification. In view of rapid legal development and the increasingly sophisticated legal profession in the PRC, these experienced professionals may not be up to date with the latest legal developments. The NBE has become increasingly difficult in recent years, so it might entail a considerable loss of face for experienced practitioners if they were to fail an NBE imposed on them. It seems likely that an exception has been made for those older and experienced professionals based on other considerations. A further drawback to the kaohe system lies in its inconsistent control from region to region which will eventually affect the quality of the legal profession. It can be predicted that this system will fade away while the unified NBE, based on principles of fair and equal competition, will become the only way to qualify as a lawyer.

As regards the requirement of legal study, the Lawyers Law takes a rather minimalist approach by requiring only a law diploma at the tertiary level. In China, only two years are needed to obtain a zhuanke degree. Within this period, the student spends about half a year studying courses on philosophy, political economy and politics, which also includes a period as a trainee of at least three months. Thus, the student spends less than one and a half year specialising in the study of law itself (30). No matter how hard a student studies, this limited time does not suggest that the student will be able to obtain a reasonable understanding of the various subjects of law. Of course, it could be argued that the choice of a low level of knowledge for a law degree is based on the assumptions that self-study should be encouraged and that very few people have the opportunity to study for four years to obtain a Bachelor’s degree. In the meantime the market continues to demand more lawyers.

However, the low level of academic knowledge required has caused serious concern regarding the competence of Chinese lawyers, in particular among foreign lawyers. These latter complain that many Chinese lawyers “express opinions without legal basis, fall back on general claims about PRC law unsupported by reference to specific clauses, or appeal to general notions of fairness and what should, at least in the eyes of the particular lawyer, be the case. When they do cite specific provisions, there is often no analysis of how the provisions apply to the particular factual situation or support their conclusions. The work product of many local lawyers also often suffers from a lack of attention to detail, both in terms of the presentation of the material and the substantive analysis” (31).

• License to practise

After obtaining a qualification certificate as a lawyer, one may apply to the Bureau of Judicial Office at the provincial level (sifaju or sifating) for a certificate to practise law. In addition, Article 8 of the Lawyers Law also requires that practising lawyers must uphold the Chinese Constitution, undertake a traineeship with a law firm for more than one year, and demonstrate good conduct. A lawyer’s licence is renewed every year. On this occasion, lawyers must submit an application, a summary of their work during the previous year, a certificate of completion of training (32), a report concerning compliance with professional responsibilities and disciplinary rules, and a certificate proving the fulfilment of these obligations as provided in the articles of association of the bar association (33).

It should be noted that not everyone who shows a card with the title of “lawyer” is a qualified, licensed lawyer. In fact, misuse of the title to practise law is not at all uncommon. It is said that to be a successful, modern law firm in China, three kinds of personnel need to be employed: those who have ample knowledge of substantive law, those who know how to conduct litigation, and those who have “a wide network of relations” in order to acquire business for the firm. For their own convenience, some law firms allow personnel who are not qualified, to act as lawyers. In response to this problem, the Lawyers Law specifically prohibits those who have not obtained a certificate for practising as a lawyer (Article 14). If they do so, an order to cease these illegal business activities may be made, any illicit gains may be confiscated, and fines can be imposed (Article 46).

• Restrictions on the practice of law by certain persons

According to Article 9 of the Lawyers Law, persons who cannot be granted certificates to practise law include those who have no capacity or limited capacity for civil conduct (34); who have been subject to a criminal penalty (with the exception of a crime of negligence); who have been dismissed from public employment or whose certificate to practise as a lawyer has been revoked.

In face of the problem that many government officials moonlight as lawyers, Article 13 of the Lawyers Law prohibits employees in government institutions from acting concurrently as practising lawyers. Article 36 requires that lawyers who were formerly judges or procurators must not serve as agents ad litem or defence counsel within two years of leaving their post in courts or procuratorates. In practice, many practising lawyers have a background of having worked in a court or procuratorate. There is strong support for restricting their engagement in litigation because their background and network may harm the normal legal practice and endorse judicial corruption. In a popular Chinese TV series entitled “Single Parent Families”, a female judge resigned from the court in order to become a lawyer to defend her friend at the same court where she had worked. Indeed, under such a situation her relationship with the judges may raise doubts concerning fairness for the opposing party. Implementation of Articles 13 and 36 continuously face problems as governmental officials and former judges and procurators conduct the same activities but under the guise of “legal consultants” (35).

Law firms

For a lawyer to practise law, association with a law firm is an absolute requirement. A lawyer cannot accept a case in his or her own name; instead, law firms accept cases in a uniform manner and conclude contracts with their clients (Article 23).

The following criteria which must be met to establish a law firm are not complicated: name, address and articles of association, assets of more than 100,000 yuan and at least three full-time lawyers (Article 15).

The Lawyers Law classifies law firms into three types of: state-funded, co-operative and partnership.

State-funded law firms are those established by judicial administrative organs with state funds, which carry out legal business operations independently, and assume limited liability for the debts of the firms with their whole assets (36). A lawyer’s salary is based on an efficient flexible system, taking into account the years that a lawyer has worked in a law firm, experience, quality and the quantity of cases handled, etc (37). State-funded law firms were the first organisations in which Chinese lawyers practised law after the resumption of the lawyer system in 1979. Initially, lawyers enjoyed civil servant status and received a fixed salary from the state. From 1983, reforms have been framed to make them financially self-sufficient. By June 1995, of the 5,500 state-funded law firms which account for 76.4% of total law firms, 2,674 (48.6%) no longer rely on government financial support (38).

Co-operative law firms are set up by partners on a voluntary basis with assets owned equally by all lawyers. The law firms bear limited joint liability for the debts of the firm on the basis of their entire assets. A lawyer’s income is based on the same principle as that applied in state-funded law firms (39). Originally, such firms were instituted by lawyers who had resigned from state-funded law firms and who felt confident that they would have a sufficient number of cases to generate a reasonable income.

Partnership law firms were also initially set up by lawyers who had resigned from state-funded law firms. The firm’s property is provided by the partners and belongs to the firm. Partners bear unlimited joint liability for the debts of the firm (40). The total income of such a firm, after deduction of costs, taxes and reserved funds, is divided by the partners according to arrangements made between them. Lawyers hired to work for such a firm receive a beneficial salary. Details of remuneration are stipulated in an agreement between the partners and the hired lawyers.

By the end of 1997, there were approximately 5,519 state-funded law firms, 1,014 co-operative and 1,851 partnership law firms, accounting for about 70%, 10% and 20% respectively of total law firms in the PRC (41). State-funded law firms are the mainstay, generally because the other two types of firm involve a measure of risk. Politically speaking, even though the central government has announced its determination to develop a socialist market economy with the intention of privatising many sectors, concerns about the policy change have not completely disappeared (42). State-funded law firms have offered some privileges, such as job security and other government-subsidised treatment, including housing, medical insurance and child-care, even though these privileges are gradually disappearing as economic reform deepens. Most private law firms are located in the most economically developed areas as the economic boom has provided fertile soil for their growth.

Because of the controversial opinions expressed in the process of its drafting, the Lawyers Law avoids mentioning individual law firms, though in reality many such firms exist, particularly in the Special Economic Zones. For instance, in June 1996 the Standing Committee of the People’s Congress in Hainan province passed the Regulations of the Hainan Special Economic Zone on Practising Lawyers. The Regulations were the first in local law to legitimise individual law firms. In 1997, there were 34 state-funded, 38 partnership and 14 individual law firms in Hainan province (43). Recently, a number of Chinese lawyers, after years of studying and working abroad, have returned to China to open private law firms. Such firms deal mostly with foreign-related commercial and civil cases. Some firms have earned domestic as well as international reputations, such as Duan & Duan Law Firm in Shanghai (44).

Most Chinese law firms undertake a general legal practice. Only since the 1990s in economically developed cities have some law firms become specialised in foreign-related legal business, intellectual property rights, securities, real estate, international tourism (45), and so forth.

In China, practising law in certain fields requires an extra licence. For instance, if a lawyer wants to engage in securities, he needs approval from the China Securities Regulatory Commission and the Ministry of Justice. After obtaining a permit, the lawyer can practise securities law in a law firm where two other lawyers have the same permit. There are now about 1,655 lawyers holding such a qualification and 322 law firms are qualified to engage in securities (46). In addition, in 1997, the Ministry of Justice, the State Commission on Science and the State Bureau for the Administration of State-owned Property provided a training course for lawyers wanting to engage in demarcating the property rights of collectively-owned hi-tech enterprises. This resulted in about 800 lawyers passing the examination to qualify in dealing with legal matters in this field (47).

Most law firms are on a small scale, consisting of between 10 and 30 lawyers, only a few have more than 40 or 50 lawyers (48). The larger firms may have various departments: international commerce, real estate, banking and securities, company and taxation, shipping and marine insurance, intellectual property, litigation and arbitration. In recent years, the Ministry of Justice has encouraged law firms to increase their competitiveness at the international level by mergers between them. On June 26th 1998 the first inter-regional firm, Guo Hao Law Firm, opened in Peking. It is a large co-operative law firm established by three existing well-known law firms (i.e., Zhang Yongtao Law Firm in Peking specialised in finance, Wanguo Law Firm in Shanghai specialised in securities, and Tangren Law Firm in Shenzhen specialised in investment and company mergers) (49). It remains unclear whether large-scale law firms will be a trend encouraged by the government. If the government believes such a firm structure would be beneficial in strengthening the international competitiveness of Chinese law firms, measures to foster mergers can be anticipated.

Management system of lawyers and law firms

Since 1980, the Ministry of Justice and its affiliated bureaus of justice at the local level have always exercised organisational leadership (zuzhi lingdao) and professional supervision (yewu jiandu) over law firms. The Lawyers Law is intended to modify this system by combining the administrative leadership of judicial administrative authorities and the professional administration of lawyers associations, and gradually transforming these into a system with association management as the core with macro-level guidance from judicial administrative organs. In other words, the aim is to increase the administrative functions of lawyers associations and reduce the burden on the judicial administrative organs.

Under the Lawyers Law, the Ministry of Justice is in charge of conferring certificates of qualification as a lawyer (Article 6). The local judicial administrative organs at provincial level award certificates to practise law (Article 11), examine and verify the establishment of law firms (Article 19), issue a warning to revoke or revoke a lawyer’s certificate to practise for lawyers who have conducted activities prohibited by the Lawyers Law (Articles 44 and 45). In addition, the major task of the Ministry of Justice is to establish rules for the implementation of the Lawyers Law. For instance, in November 1996, the Ministry issued the Measures for the Administration of Lawyers Practising Certificate and the Administrative Measures for the Administration of Persons Who Practise Law on a Part-Time Basis, and in January 1997 issued the Measures for Punishing Illegal Activities of Lawyers.

The All-China National Lawyers Association (ACNLA) was established in July 1986. Many local lawyers associations have also been set up at provincial level and in municipalities with districts. Chinese lawyers must be members of the local lawyers association of their place of residence; simultaneously they also become members of the ACNLA (Article 39).

Although the Lawyers Law describes lawyers associations as self-regulating incorporated social organisations of lawyers, such associations are not the independent professional organisations they are in Western countries. Lawyers associations in China are led by the Ministry of Justice and its local bureaus. The Lawyers Law provides that lawyers associations have the functions necessary to safeguard lawyers’ rights to practise law; to summarise and exchange the work experience of lawyers; to organise professional training; to educate, examine and supervise lawyers in professional ethics and legal practice disciplines; and to mediate in disputes arising during the course of legal practice.

In recent years, lawyers associations have played an increasingly important role in protecting lawyers’ legitimate rights and interests. Local lawyers associations usually report cases of serious violation of lawyers’ rights to the ACNLA which then sends an investigation team to help resolve the problem. For cases with nation-wide impact, the Association sometimes organises a meeting of experts to seek solutions. It has also sent the most qualified lawyers to participate in the defence or representation of lawyers whose rights have been violated. Further, the ACNLA is active in reporting cases to relevant central governmental organisations, and in involving public media to help solve some difficult cases. However, of the cases reported to the ACNLA only about 30% are resolved. In order to improve the effectiveness of its work, the ACNLA set up a Committee for the Protection of Lawyers’ Legitimate Rights and Interests in July 1998, consisting of 60 lawyers recommended by lawyers associations at the provincial level. Such committees also exist in various localities (50).

Scope of professional activities

Article 25 of the Lawyers Law outlines seven types of lawyers’ activities in general terms. They can act as legal advisors or as agents ad litem in civil and administrative cases, handle criminal cases, serve as agents in various petitions, participate in mediation and arbitration, handle non-litigation legal matters, provide advice through consultation and draft legal documents. Since their re-establishment, the scope of lawyer’s activities has gradually been expanding. Some Chinese scholars have undertaken thoughtful studies on the role of lawyers in meeting the needs of society. From the table, some conclusions can be drawn (51).

Most notably, the number of all types of legal services have increased. In the period from 1985 to 1993, the following increases were noted: 670.1% for non-litigation services, 371.3% for company legal advisors, 346.7% for civil and economic litigation cases, 89.7% for drafting legal documents, 79.2% for criminal litigation and representations, and 47.6% for legal consultation. The average rate of increase for all services is 267.4% (52).

Also, the provision of non-litigation legal services has increased dramatically. Such services can be classified into contentious and non-contentious. The former include participating in mediation, arbitration, administrative review and acting as a representative in administrative petition, etc. The latter refer to broad participation in trade, investment, intellectual property protection, security, finance, taxation, real estate, maritime affairs and other civil and commercial matters. It is estimated that the main potential for the enlargement of legal practice lies in non-litigation services, especially in the sphere of non-contentious work (53).

Furthermore, the number of cases handled by lawyers in criminal litigation and representation decreased in 1991, and then rose again slightly in later years. However, when compared with other legal services, there was no major expansion in this field. Some scholars estimate that around 70% of criminal cases are currently tried without defence counsel (54). It is true that lawyers are reluctant to handle criminal cases as the financial rewards are too low and the risks too high. The most common of these risks include lawyers being verbally attacked and abused by opposing parties; physical attack by the detainee in an attempt to escape; being framed by officers in detention units who pass letters or banned goods to the detainee when things are brought to light; provision of false information by detainees and their relatives in an attempt to escape the charges, whereby lawyers take the risk of offering false evidence which is itself a crime; being turned on by the accused person if he/she is dissatisfied with the lawyers defence; being set upon by judicial workers in courts, procuratorates and public security organs who do not respect lawyers’ rights and consider them to be “siding with the bad guys”, and “absolving the accused from guilt”; lawyers have even been forced to leave the courtroom (55).

Despite these problems, it is correct to assert that: “following the resumption of the role of defence counsel in 1980, their ability actively [to] participate in judicial activities has been strengthened—notably in the greater furnishing of case information and the freedom to conduct judicial defence” (56). In recent years, government authorities have initiated legal aid programmes to implement a criminal defence system. A number of local justice bureaus require law firms to take an annual quota of criminal defence cases. For example, lawyers in Nanjing are required to take four criminal cases each year as a prerequisite for renewal of their licences, or pay 500 yuans per case into the criminal defence fund. In Beijing, as from 1996, newly licensed lawyers are required to take five criminal defence cases during their first year of practice (57).

Rights and duties

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 1995 with 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 1998 lawyer 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 (60).

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 306 of 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 38 of 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 45 of 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 (61).

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 75 minutes 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 (64).

• The right of enquiry

Article 31 of 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 (65).

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 49 provides 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 49 is 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 (68). 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 (69).

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 (70). 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 1985 to 1991, the Ministry of Justice approved the revocation of 63 lawyers’ licences: among these, 24 were revoked for bribery, larceny and the like; 21 were revoked because the lawyer in question had frequented brothels or had conducted an improper relationship with relatives of the parties, or due to “hooliganism”; 18 were revoked for breach of professional ethics. In Guangdong province, during the 15 years following the resumption of the lawyer system, 31 lawyers were punished for breach of the law or discipline, including 22 revocations 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” (71).

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” (72).

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 (73).

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 30 to 150 yuan ($US 1 = 8.84 yuan). For drafting civil contracts, fees range from 10 to 50 yuan. In dealing with civil cases involving property relationships, handling costs range from 100 to 200 yuan; 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 5,000 yuan, 3% can be charged for the part between 5,001 to 10,000 yuan.

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 300 to 500 yuan (74). Lawyer Zheng Chuanben in Shanghai charged 160,000 yuan for defending two murder suspects (75). 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 (76).

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 20 years, 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 (77). 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 1997 Lawyers 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.