On October 28, 2007, the standing committee of the National People’s Congress amended the Law on Lawyers, according to a Xinhua article of the same date. The law marginally changes the rules governing the legal profession in China. It also introduces additional protections of unclear practical importance for lawyers representing their clients.
- The amended law retains the dual management structure governing the legal profession in China, but relaxes some requirements for the establishment of law firms.
The amended law continues to vest responsibility for the
management and discipline of lawyers with both the Ministry of Justice and the
Chinese bar association. It specifically
allows for the creation of solo practitioner law firms and permits firms with
20 or more lawyers to establish branches.
- The amended law adds specific protections for lawyers meeting with criminal suspects and defendants.
Article 33 states that lawyers shall not be "monitored" (jianting) while meeting with criminal suspects and defendants. Prior language only gave lawyers the right to meet with their clients. The new phrasing appears to directly conflict with Article 96 of the 1996 Criminal Procedure Law, which states that when lawyers meet with criminal suspects in detention, investigation organs (i.e. the Public Security Bureau) can send personnel to be present at the meeting, depending on the circumstances and need. It is unclear how this conflict will be resolved in practice.
- The amended law appears to grant lawyers some degree of additional protection in conducting their representation of clients.
Article 37 protects from legal sanction courtroom statements by lawyers in
defense of their clients, but exempts from protection those
statements that "harm national security, intentionally slander others, or
seriously disrupt courtroom order." The
same provision also specifically provides that "if lawyers are detained or
arrested in the course of litigation activities on suspicion of a crime, the
detaining or arresting authorities must notify the lawyers' relatives, law
firm, and bar association within 24 hours."
- The amended law also warns lawyers against excessive involvement with citizen protests.
Article 40 adds a specific prohibition barring lawyers
from "inciting or abetting parties to engage in disturbing public order,
threatening public security, and other illegal methods to resolve
So what should one make of this? Well, my inclination is to read the amendments as reflecting the conflicted attitudes of Chinese authorities regarding lawyers and legal activists. Activist Chinese lawyers have brought a range of criminal and civil legal challenges to government practices in recent years. Party authorities are not interested in seeing the legal profession develop in a manner that might challenge their political controls. Retention of the dual management structure is intended to combat this. The specific language barring lawyers from "aiding or abetting parties to disturb public order" may be aimed at drawing a line in the sand, warning lawyers to confine their activities to the courtroom, and avoid entanglement with activists pursuing broader protest or petitioning strategies.
On the other hand, I suspect that some Chinese central officials recognize that public interest lawyers play a useful role in exposing and combating some local abuses that national officials would very much like to control themselves. The language regarding the detention or arrest of lawyers engaged in litigation-related activities reads to me like a shot across the bow of local officials who might be interested in casually seizing legal activists challenging corrupt or illegal practices of local governments.