China Legal -- The Good, The Bad, And The Ugly

This is Doug Berman's second report from the Indiana University Kelley School of Business sponsored conference on "Capitalism with Chinese Characteristics" Doug's first post was entitled "Capitalism/Socialism With Chinese Characteristics -- A Reporter's Notebook."

This post focuses on the practice of law in China and, more particularly, on Chinese lawyer dissatisfaction.  Because it so much deals with research conducted by Dr. Michelson, I will be discussing Dr. Michelson and his research a bit before going to Doug's report.

Dr. Ethan Michelson is a professor in both Indiana University's Sociology and East Asian Languages and Cultures departments.  Dr. Michelson lists the following as his present focus of research:

My current research is divided into three separate but closely related projects. First, my research on the revival and development of the Chinese legal profession focuses on the paradoxical consequences of the bar's rapid privatization. Rather than serving to advance judicial autonomy and rule of law, the bar's growing autonomy from the state has done more to buttress the authority of the Chinese Communist Party by heightened lawyers' socioeconomic and political insecurity and vulnerability. Second, I am studying the reasons why and the methods by which Chinese lawyers screen cases. This project focuses on (1) how the institutional structure of legal practice discourages lawyers from representing some of China's most aggrieved citizens and (2) lawyers' micro-level discursive methods of deflecting legal needs away from the legal system. Third, I am studying the sources of popular grievances and what ordinary people do about them in both urban and rural China.

Dr. Michelson has been studying and writing about Chinese lawyers since at least 1998.  His doctoral dissertation, written in 2000, is entitled, "Unhooking From the State: Chinese Lawyers in Transition."  The dissertation is a 500+ page study of Chinese lawyers.  Volume I of the dissertation (in PDF) can be found here, with volume II, here.  I have read the first 100 or so pages of Volume I so far, and the words, "fascinating" and "hugely impressive" instantly come to mind.

On his own website, Dr. Michelson summarizes his dissertation as follows:

This dissertation observes contemporary Chinese lawyers at a watershed, a critical historical moment since their revival in 1979. During the time of my field research between 1999 and 2001, Chinese lawyers were at the final stage of "unhooking" from the state, a transition ongoing since the mid-1980s away from their official status as a public profession of "state legal workers" to an official status as a private profession of self-reliant, fiscally autonomous, entrepreneurial practitioners. Their transition from state-sector membership to private-sector membership mirrors a larger transition underway throughout Chinese society as a whole. I argue that the challenges and difficulties lawyers face in their everyday practice, their marginalization and overwhelming sense of insecurity, can only be understood in this larger context. The unclear and weakly protected status of lawyers is manifested in the same array of difficulties private business entrepreneurs have learned to negotiate, including routine administrative interference, official rent-seeking, and police harassment and intimidation. The inseparability of law from politics in the socialist context further exacerbates the vulnerability of lawyers, particularly criminal defense lawyers. Insofar as the plight of lawyers mirrors that of private business entrepreneurs, so too do their adaptive responses. Their dependence on key gatekeepers and decision-makers in government agencies, including judges, prosecutors, and police, has reinforced the importance of social connections and personal relationships as a basis for professional survival and success. In the process of making this argument I provide a history of the reemergence and development of lawyers in post-Mao China; a detailed descriptive overview of the organization of legal work, including the market for legal services and the structure of law firm organization (and variations thereto); a discussion of the uneasy relationship between lawyers and the state both in contemporary China and in historical perspective; and an analysis of the extent and bases of inequality. Evidence is marshaled from a survey I conducted in the summer of 2000 of 980 lawyers in 25 cities across China; from interviews with 67 lawyers, legal scholars, government officials, and journalists; and from observations of 48 lawyer-client consultation sessions observed at a single law firm in Beijing.

I think it important to quote from the very beginning of Dr. Michelson's dissertation:

The danger of conducting research on any aspect of contemporary Chinese society is that it will be out of date by the time it is completed.  With bodies of laws and regulations being promulgated and revised on what seems like a daily basis, this danger is particularly acute in the study of China's legal reforms.  This dissertation is certainly not immune to this danger.  Indeed, the main theme of this dissertation -- the division between the state-owned and private segments of the Chinese bar -- is already largely the stuff of history.

Dr. Michelson continues to study and write about China's legal system and Chinese lawyers.  He had such an article published already in 2006, and he has two more forthcoming.  Dr. Michelson knows the Chinese legal business. 

Doug's report now follows. 

In his presentation, Dr. Michelson had two main points: first,
the legal profession in China today is 'difficult.'  The legal profession is difficult because it is relatively easy for a lawyer to be arrested, detained, and pressured by the 'gongjianfa' (police, bureaucracy, courts) and difficult because gathering evidence and assisting a client can sometimes be next to impossible.

Dr. Michelson talked about how lawyers in China are generally an aggrieved bunch.  In measuring the satisfaction rates among, full-time private lawyers, part-time lawyers, (most of whom are full-time law faculty members), and special procurates (party-appointed lawyers), Dr. Michelson found that full time lawyers experienced the least job satisfaction. According to Dr. Michelson, the key point here is that one's ability to practice one's profession depends on how entrenched one is politically.  Lacking political 'juice,' it is natural for the full-time private Chinese lawyer to consider him or herself to be vulnerable and, thus, to express more anxiety.  The lawyer's responses to Dr. Michelson's survey seems to reveal that being a lawyer in China is a dreary and even sometimes dangerous profession.

Since Dr. Michelson's big survey in 2000, however, most law firms in China have been privatized and there are no longer procurates.  Dr. Michelson asserts that many of those former government lawyers are getting squeezed out or retiring. 

Over lunch, I [Doug] asked Dr. Michelson whether the lawyers in his studies expressed so much dissatisfaction because lawyers so much like to voice their grievances or whether it was because there is something intrinsically unsatisfactory to doing legal work?  After all, in the United States, where lawyers are generally viewed as belonging to an elite echelon of society and the practice of law is generally a financially rewarding profession, dissatisfaction with the practice is still quite common.

Dr. Michelson agreed it was possible the Chinese lawyers simply like to complain, but he felt it important to look at what they were complaining about.  He also pointed out how uniform many of the responses were regarding particular problems.

I was struck by Dr. Michelson's comments on how easy it was to get lawyers to voice their opinions.  It appears lawyers are opinionated in
every society.  He made a comparison to a farmer in the field, who would be quite reluctant to voice any dissatisfaction or who would be unable to express his problems clearly.

This comparison makes me wonder if asking lawyers their view of the legal profession has both positive and negative repercussions. On the
one hand, talking with attorneys makes it relatively easy to get a large sampling of informed and articulate opinion.  On the other hand, it is the nature of lawyers to understand how the 'system' operates.  Unlike, say, a farmer in the field plowing his crops, lawyers are much more concerned with both the social setting within which they operate and their profession as a whole.  As a result of this, they may be more inclined to speak for the profession, as opposed to speaking only for themselves.  This may lead to a magnification of certain problems. I do not think this challenges Dr. Michelson's findings, but it does suggest we need to be careful how we interpret these grievances.

I [Dan Harris talking now] would love to meet Dr. Michelson to discuss his work with him and I intend to e-mail him so we can perhaps do so in China some time.  As an international lawyer, I am always fascinated by the role of lawyers in other countries and though I know and work with many Chinese lawyers, my view of the Chinese legal profession is terribly skewed.  My experiences with Chinese lawyers have, for the most part, been confined to the tiny subset of Chinese lawyers who work with foreign companies and these lawyers are truly at the top of the China law heap. 

I constantly receive e-mails from Chinese lawyers and law firms from all around China asking if my firm would be interested in "cooperating" with them.  I always respond by thanking them for contacting me and I tell them that if they ever have need legal assistance in the United States or elsewhere, we would love to help and that if we ever have any legal issues in their city, we will consider contacting them.  None of these interactions have ever gone beyond this.  My internet research of these lawyers and law firms (when it reveals anything at all) usually indicates these e-mail writers are with former government firms. 

But the lawyers with whom we work in China are thriving.  These lawyers (and this is true of all the lawyers with whom we have worked, not just those in Beijing and Shanghai) are, to a large extent, the kings and queens of their cities.  Almost without exception, these lawyers are between 30 and 40 years old and they graduated at or near the top of their class from China's top law schools.  None of them have ever worked for the government.  These lawyers are also savvy businesspeople. 

These lawyers are most emphatically neither distressed nor fearful.  Far from it. 

Both Steve (in Chinese) and I (in English) have had long conversations with them regarding their practices and their lives and their views are definitely not those generally ascribed to lawyers in Dr. Michelson's studies.  The lawyers with whom we work have more work than they can handle and they are making a lot of money.  They all drive new luxury cars and many of them own multiple houses.  They send their kids to private school and they take vacations in places like Hainan and Thailand, where they stay in luxury hotels.  Most of them have been to places like London, New York, Tokyo, Seoul, or Brussels on business.  These Chinese lawyers are very much like the lawyers we work with in Korea and in Japan. 

I mention my experiences with Chinese lawyers not to in any way challenge Dr. Michelson's findings.  I am always appalled by the businessperson who spends a week in Shanghai and then returns claiming to understand China and my claiming to know the Chinese legal profession based on my severely limited experiences would be nearly as absurd.  My dealings with China's top international lawyers no more constitute a valid measure of China's lawyers than would the lawyers of Sullivan & Cromwell constitute a valid sample of U.S. lawyers. 

Doug's third and final post will focus on the concept of Chinese exceptionalism.