The right to an attorney [and your attorney’s rights] in China

China is testing new rules aimed at ensuring that all criminal defendants have access to a lawyer. This is a big deal.

The criminal representation rate now is generally said to be somewhere between 30-50%, and access to an attorney is essential to meaningful exercise of procedural rights. The rules even go so far as to make failure to appoint counsel grounds for receiving a retrial.

To understand the larger meaning of this reform, however, it needs to be considered in context, and that means discussing two trends that may seem in direct contradiction with each other.

First, is an ongoing pattern of absolutely unacceptable government action against Chinese lawyers. Well-respected law firms have been searched, and lawyers have been disbarred, detained, or even disappeared. When formally prosecuted, lawyers have sometimes been denied access to their families or the legal counsel of their choosing. Repressive rules of professional conduct have limited all lawyers’ ability to do their jobs and have restricted their civil rights.

At the same time, China’s leading legal institutions have continued to release a series of documents billed as protecting lawyers from retaliation and facilitating their ability to meaningfully serve clients.[i] Criminal procedure as a whole is being rapidly reformed to allow more meaningful trials in contentious cases. Lawyers’ ability to meet with clients, access case files, conduct independent investigations, and (less frequently) call witnesses, are all the focus of reforms which have recently gained momentum.

Critics will see the first trend as entirely obscuring any progress, saying that procedural rights are irrelevant where the State can bypass them at will and where lawyers are afraid to provide a vigorous defense. At worst, the reforms might even be viewed as nothing but disingenuous lip service to rule of law.

Supporters won’t deny the crackdowns, but will dismiss them as applying to only to a very small number of politically sensitive cases. They will counsel patience, saying that eventually even these atypical cases will be handled in accordance with law, but that progress is necessarily gradual.

While there is a certain intuitive logic to both of these positions, they both feel incomplete because they simply disregard what doesn’t fit their expectations. The more direct way of understanding how China can be bolstering the defense bar at the same time as it thins their ranks is to read the recent reforms as envisioning a fundamentally different notion of the role of defense lawyers.

The lawyers that the Party wants are not independent advocates, but ‘socialist legal workers’.[ii]   Lawyers are meant to be functionaries guiding clients through the legal process along established paths, not criticizing existing policies, rules, or their implementation. [iii]  Those who attempt to use the law, or their professional stature, as a platform for accelerating social change or furthering legal reforms may be viewed as overstepping their role and held accountable.

In criminal cases, lawyers are a part of the criminal justice system first and their clients’ representatives second. Their job is to facilitate the trial process by clearly presenting the facts and guiding correct application of the law. Lawyers who make cases more complicated by obfuscating the facts or introducing uncertainty are unwelcome, and this explains in part why they aren’t allowed in interrogations.  Casting doubt on adverse testimony that the lawyer personally suspects is true may be considered disruptive and even unethical.

The new documents promoting defense practice aren’t meant to uproot this conception of lawyers, they are meant to codify it. They empower lawyers to play their limited role, but remind them to go no further. Even in the new pilot rules guaranteeing counsel, a document more about allocating legal resources than discussing practice rights, Article 21 contains an intimidating litany of vague and subjective limitations on defense counsel, saying they must not:

• incite defendants’ family and friends to express their demands in unlawful ways;
• maliciously sensationalize cases or give misleading commentary;
• disclose important information and evidence that they learn of through handling the case;
• Instigate the defendants to recant confessions; [making it difficult to ever challenge coerced confessions]
• exhibit any other conduct that disrupts judicial proceedings and activities.

This doesn’t mean that criminal defense reforms are meaningless, but concerns the scope of their impact. To entirely write off what lawyers are able to do would be needlessly insulting to the courageous lawyers and legal reformers who are struggling to aid individual clients and to make the system fairer.  Lawyers are essential to informing clients of what options they do have at trial. While a not guilty verdict is unlikely in China, lawyers are often able to help defendants get a reduced sentence by presenting evidence of mitigating circumstances. Their participation at any level can also help increase the professionalism of police and prosecutors even just by having critical eyes reviewing their work and by bearing witness to the treatment of defendants.

Providing  defense counsel in a large number of cases really is a big deal. That doesn’t suggest it indicates a shift toward rule of law. ‘Rule of Law’ requires equal access to justice, equality before the law [including the government and political actors], and use of legal rights as a limit on government power. A leadership that insists on clamping down on any alternative power and influence bases is never going to fully embrace those ideals. At the same time, legitimizing the criminal process, particularly preventing wrongful convictions, has been identified as critical for maintaining public confidence and social stability, and a dedicated and professional corps of defense lawyers might well make an impact in a great number of individual criminal cases.

[i] See eg https://www.chinalawtranslate.com/lawyers-practice-rights/?lang=en

[ii] A term, strikingly similar to the pre-1979 phrasing of “State Legal Workers”, and which is used regularly in documents on the legal profession, such as draft legal practice norms. At article 5.

[iii] There are causes of action or grounds for appeal by which lawyers can challenge government action, but these are best understood as helping the government find officials who have abused their power or discretion, rather than challenging the official government stance.