China was not on my list of places to visit. My interests were in other places--but a letter from an ABA friend telling me he was leading a People-to-People delegation of lawyers to mainland China for meetings with our Chinese counterparts was too much to resist. In mid-September of 2007, the 18-day improbable journey began.
I had forgotten much of what I had learned about China in school. As part of our orientation, we were reminded that in 1949 the Communist government closed all law schools and eliminated lawyers as we know them. The few lawyers who remained on mainland China became government employees and while they could represent individual clients, they had a duty to report their clientsí activities to the government on a weekly basis.
Most lawyers left China at that time and only a few of them returned in 1996 when the government changed the law to once again allow lawyers to become independent. Law schools re-opened and a new generation of young lawyers began to create a legal profession. In many ways, todayís lawyers find themselves in an immature profession trying to get their bearings without the benefit of historical underpinnings.
We met with representatives from both local and international law firms. The differences were striking. The international firms represented international businesses with offices or factories in China. The local firms represented Chinese individuals and most of those lawyers spoke no English, making the interpreter the most important person in the room. There is rarely any overlap between the two groups in terms of clients or services.
We met with a managing partner of an international firm who described a set of challenges that makes practicing in U.S. law firms seem simple. For starters, lawyers in international firms are not allowed to give advice on Chinese law, even if they employ Chinese lawyers. A Chinese lawyer working for an international firm must give up his/her license to practice while so employed. Some lawyers acknowledge it is impossible not to give advice on Chinese law and they recognize that they run the risk of being closed down.
The managing partners of international firms agree that the training and mentoring of young Chinese lawyers poses a unique challenge. Due to the nature of Chinaís authoritarian society, law students donít ask questions in class and they never challenge their professors. Their schooling involves memorizing the law rather than analyzing legal problems. As a result, the law firms have to reverse the indoctrination and train Chinese law graduates to be analytical and to feel free to challenge the firmís partners.
One major distinction in China is that the law does not involve precedent Judges are required to interpret the law without the benefit of prior reported decisions. Decisions are primarily influenced by the individual judgeís interpretation of the law. From the litigantís perspective, predictability is difficult, if not impossible. Commercial contracts have arbitration clauses because international businesses are not about to trust their issues to Chinese judges.
There are some stark differences between their laws and ours. Those accused of crimes are presumed guilty and have the burden of proving their innocence. Ped-estrians never have the right of way, but if they are struck down, drivers are always responsible.
Watching bicycles interact with vehicles in a busy traffic circle defies description. Stealing bicycles is a national pastime, as the police are too busy on more important matters. If a bike is stolen, the accepted remedy is for the "victim" to steal someone elseís.
Landlords can use the courts to evict tenants who do not pay their rent, but self-help law enforcement (in the form of a tenantís broken legs, etc.) is more prevalent.
Land is leased from the government for 50 years. Developers are constructing high-rise commercial buildings throughout China with no idea of what will happen at the end of the 50 years. Over-development is rampant. Yet there are millions of Chinese workers in government factories receiving just a few dollars a month, plus dormitory room and board. Any beneficial relationship between a booming private economy and a repressive one-party government does not seem to exist.
We were greeted enthusiastically at each stop. Lawyers in the international firms wanted to tell us of their challenges. Local Chinese lawyers were more curious about practice management issues. Most of their questions involved how to compensate partners, how to retain associates, how to get business and what methods to use in billing clients, thereby demonstrating the realm of law is, in some respects, the same the world over.
Law graduates are required to take a bar exam. The government is limiting the number of lawyers with a pass rate to about 7%. Chinese lawyers are required to join firms; there are no solo practitioners.
We also responded to questions from law students at a Shanghai law school. Several had questions about what credentials they would need to have to practice in the United States. A more revealing question was asked by a student who wanted us to give examples demonstrating that our system was fair. (Our delegation leader earned his money that day!) In a follow-up question, that student referenced O. J. Simpson and Kobe Bryant. It was a sad commentary on their perception of our system.
On the plane trip home I came across an article in a Hong Kong newspaper about a human rights lawyer in Beijing who had been beaten by government-connected thugs. At the end of the beating they warned the lawyer to, "stop practicing beyond permissible limits." But of course, that article would not be read in Beijing, as it is illegal to transport a Hong Kong newspaper onto mainland China.
All-in-all, China is a fascinating place to visit, especially since only a few years ago it was essentially closed to Westerners. The one-party system is accepted by the locals because they are better off than they were a few years ago and they believe that there are too many people in the country for them to be governed democratically. But the economic growth boggles the mind; the inescapable conclusion is that China will soon be the economic center of the world.
And last but not least, I now know the answer to the question, "How many Chinese meals does it take before a Big Mac tastes good?"