Criminal Defense in China: The Politics of Lawyers at Work
By Sida Liu and Terence C. Halliday
221 pages. Cambridge University Press.
In December 2009, Li Zhuang, a partner from an elite corporate law firm in Beijing, traveled to Chongqing in western China to meet with a local businessman facing a raft of criminal charges, including murder.
As Li launched a zealous defense — insisting on private meetings with his client, among other things — he clashed with local authorities and wound up being charged twice with “lawyer’s perjury” — accused of instructing his client to lie. For the first charge, in 2009, he spent 18 months in prison, but by 2011, authorities agreed to drop the second charge thanks in part to an uproar among lawyers in the country who rallied to his defense.
“The Li Zhuang case marks … a watershed event in the history of the Chinese legal profession,” the authors of a new book about lawyers in China write. “It was the first time that lawyers across China mobilized collectively to defend a fellow professional whom most of them had never even met or heard of.”
Written by Sida Liu, a University of Toronto sociology professor and faculty fellow at the American Bar Foundation, and Terence Halliday, co-director of the Center on Law and Globalization at the American Bar Foundation, the book “Criminal Defense in China” probes the future of the country’s legal and political reforms. Specifically, it describes how lawyers are shaping a fight for “basic legal freedoms” in “an illiberal society.”
For lawyers in China, there is a growing tension between the urge towards professionalization — advocating for a client through a strict adherence to legal process — and an urge toward populism, or using political connections to advocate for a client, Liu and Halliday explain in the book.
By looking at the two different outcomes in 2009 and 2011 for Li, whose insistence on legal process angered Chongqing authorities, the authors suggest that professionalism within and among lawyers in China is growing, although they note it is a slow process.
Liu, a Chinese national who is a lawyer and sociologist by training, has written extensively about the legal profession in China, including multiple articles in 2016 on how China’s own law firms are evolving. In December, he wrote an article outlining three different growth strategies used by Chinese law firms that have started to compete on a global level.
“Big Law is not dead,” Liu wrote in the article in Harvard Law’s The Practice. “Even if it has experienced a period of restructuring in the West after the 2008 global financial crisis, in China and in other emerging economies such as India and Brazil, we have witnessed the rise of (non-Western) Big Law in the early 21st century.”
For their book about Li Zhuang‘s trial, which studies the professionalization of lawyers through an in depth look at the risks that criminal defense lawyers face, the authors drew on 12 visits to China, and more than 300 interviews conducted between 2000 and 2015.
Li’s trial has been called ‘China’s Trial of the Century’ because of the way it captured national attention and brought to the surface a debate among the country’s lawyers about their profession’s role in society.
Until he lost his law license as a result of the charges in 2010, Li had been a partner in Beijing Kangda, a corporate law firm that is Chambers-ranked for its dispute resolution practice and “noted for its representation of clients from both the public and private sectors.” The authors describe the firm as “elite” and “nationally renowned.” According to its website, clients include People’s Bank of China, Bank of Communications, China Resources National Corporation and others.
Nonetheless, despite the prestige of his firm, within days of Li landing in Chongqing in Sichuan province, local police arrested and charged Li. His subsequent trial, in 2010, has been called “China’s Trial of the Century” because of the way it captured national attention and brought to the surface a debate among the country’s lawyers about their profession’s role in society.
The media played a large role in shaping the debate among and about lawyers, according to the book: Four days after Li’s original arrest, the China Youth Daily published an article, which was reprinted throughout the country, titled ‘The Surprising Exposure of ‘Lawyers Falsifying Evidence.” It alleged Li had collected a large retainer from his client’s relatives, then texted a colleague to come quickly because there were “stupid people, plenty of money.”
Li was accused of “lawyer’s perjury,” often referred to as ‘Big Stick 306’ by lawyers in China.
According to the book, the article also quoted an anonymous local government official with other unsavory things to say about Beijing lawyers who arrive in Chongqing looking for business opportunities. The official said the lawyers rarely win for their clients, never apologize and that taxpayers ultimately foot the bill. It passed judgment on the entire legal profession as “mercenary” and unethical, the authors write, and immediately generated “thousands of lawyer critiques.”
“It is not an exaggeration to say that the China Youth Daily article turned the plight of one Beijing lawyer … into an event of collective action, in which the entire Chinese legal profession mobilized and fought against media and public prejudices toward lawyers,” the authors write.
Li was accused of “lawyer’s perjury,” often referred to as “Big Stick 306” by lawyers in China, Liu and Halliday write, because they believe police often abuse it “to take revenge on those defense lawyers who dare to vigorously challenge the prosecution.” Specifically, authorities said Li instructed his client to falsely claim he had been tortured for eight days while in police custody, according to the book.
Li’s case is recounted in a full chapter and has the makings of a movie script: For instance, Li admits his guilt in open court, but provides an accompanying written admission with a secret anagram that proclaims his innocence. He only made the admission because prosecutors promised to drop the charges if he did so, the anagram and Li claim.
At his first trial, in 2009 and 2010, Li was found guilty of tampering with evidence and sentenced to 18 months in prison. In April 2011, he faced trial for a second time on more charges that Chongqing authorities added from past cases he had handled, and it was broadcast in real time on the internet by local Chongqing media and by many lawyers on Twitter, the book states.
As a result, thousands of Chinese professionals and legal scholars, as well as the general public, were following the case in April 2011, when prosecutors withdrew charges because of evidence Li’s defense lawyers presented, according to the book.
“This outcome … pleasantly surprised many legal professionals … some of whom even shed tears when hearing the decision,” the authors write.
The difference in outcome between 2009 and 2011 points to the growing influence of professionalism — that is, fidelity to legal procedure — over urges for ‘populist’ justice within the legal community, according to the book. Whereas at one point in time only a “small network of notable activist lawyers in China” took on sensitive cases, the Li case mobilized a wider group of lawyers, including “elite members of the Chinese legal profession” to leverage greater tolerance of lawyer professionalism from the Chinese government.
In July 2015, the Chinese government launched a crackdown against what the authors characterize as “die-hard” lawyers, who take on the most politically sensitive cases, such as death penalty, torture, and abortion. After one of the first lawyers was arrested, more than 100 signed a petition demanding to know her whereabouts, the authors note in an example of further mobilization. But many of the lawyers who signed were themselves arrested, some detained for 24 hours and some still in custody, according to the book.
Meanwhile, China’s domestic corporate law firms have stayed silent on the sidelines, even though many of the corporate lawyers possess liberal values, because “they seem content to bury those values under their largely non-political practice,” the book states.
“With the exception of Li Zhuang who was a partner in an elite corporate law firm in Beijing, the plight of Chinese lawyers in criminal defense work generated limited concern or support from their colleagues in commercial work,” the authors write.
Still, the authors write that “over the last 400 years … across the world,” there are multiple examples of lawyers working alone or collectively to push for greater legal freedoms “vibrant civil societies, and moderate states.” They ask: will this also happen in China? But their answer is that there is no straight line in history, and there will likely be false starts and setbacks to progress, with a detailed look at how lawyers survive in the meantime.
At the beginning of their book, they compare Li’s trial and his clash with top Politburo members in Chongqing to 18th century France when the “Parisian Order of Baristers” went on strike, seeking to place limits on the monarchy. Ultimately, the Crown conceded the battle to the lawyers.
“It marked the beginnings of a movement, said Voltaire, where ‘simple citizens triumphed, having no arms but reason,” they write.
Below is an interview with Liu about his findings, edited for clarity and brevity in some parts.
Big Law Business: Tell me about the criminal defense lawyers your book focuses on.
Liu: Criminal defense is one of the most difficult and dangerous areas of law within China. It’s hard to prove innocence in China. The conviction rate is extremely high, like 99.9 percent. But if you look at Japan, it’s about the same. In China, sometimes, something very simple, even meeting their clients is difficult. Or taking evidence. There’s this crime of fabricating evidence and there’s all kinds of difficulties and risk that they face. There are some very successful criminal defense lawyers in China but the majority are not very well-paid and risk their lives and safety.
Mostly, the very successful ones handle white-collar crimes, representing government officials or rich businessman. They can charge a lot of money because their clients have a lot of money. They still lose most of their cases, but they can help their clients reduce sentencing. Sometimes they can change a death penalty into a life sentence. That’s why clients will pay quite substantial sums.
Big Law Business: Your book divides lawyers up differently than Big Law and non-Big Law so to speak.
Liu: We divide lawyers into five categories. The most successful we call the progressive elites. They push for criminal justice reforms.
There are also pragmatic liberals. They’re highly embedded in the system but don’t actually mobilize politically to pursue modern freedoms. Then there are notable activists and grassroots activists. They don’t really do the most sensitive human rights cases. They do more ordinary cases. There are also ordinary criminal defense lawyers, who are not very successful. They represent petty criminals and do a lot of trials.
I think Li may be the only true partner in the Kangda law firm who does criminal defense. Most of the other partners do high end corporate transactions. There are many high end firms in Beijing that only do transactions and others have senior partners who do criminal defense work. As you know, Xi Jinping started an anti-corruption campaign about three or four years ago, and actually it generated a lot of business for the law firms.
Big Law Business: How does that compare to the U.S.?
Liu: I would say these five categories, you can find them a lot of places, even in the U.S. In China, if you want to uphold the rule of law, it often puts you in direct confrontation to the state. Here, you can say it’s a difficult case, but it’s very rare the lawyer would face safety issues or real risk. But in the U.S., some lawyers are more actively advocating human rights and some lawyers are just practicing criminal law for a living. So you do similarities.
Big Law Business: What was your methodology?
Liu: We conducted 329 interviews in at least eight or nine different provinces and tried to talk to different types of lawyers. And of course we spent most of our time in Beijing. We started in 2005 and spent 11 years. Last year there was a big crackdown. Many of our informants, we actually follow them. Some of them are still awaiting trial.
Big Law Business: That crackdown received a lot of press. What happened?
Liu: The state basically tried to frame it as a small scale crackdown on lawyers trying to subvert state power: ‘We’re not really arresting and detaining 200 or 300 lawyers across the country, we’re just trying to punish those lawyers who violate criminal law – subverting state power.’ It happened in July last year. Within a week, more than 200 – some people say 200, at least 200, maybe 300 lawyers were taken in by the police for questioning. Many were released after 24 hours. But quite a number, at least 10 were detained for months. Several were convicted and some are still awaiting trial.
Many people would say this is just some bad lawyers. The state is punishing them. But these lawyers, they do a lot of really important work. Their work is relatively unknown for the majority of people because they’ve been blocked from the media. They can’t really talk to the domestic media, they can only talk to the international media. That’s why quite a few are internationally known but not well known in China.
Big Law Business: How new is the legal profession in China?
Liu: Lawyers, as a profession, were abolished in 1957. Basically from 1957 to 1980, there were no lawyers. 1980 was the year lawyers as a profession in China was formally revived. Then, until around 1988, all lawyers worked for state-owned law firms. So then there’s a process of privatization that happens until around 2000. They want to have a more modern and global legal profession, so by 2000, more than two-thirds became partnerships. Today, the vast majority are private. There are still a limited number of state-owned law firms but only in rural areas where lawyers couldn’t really survive, so they’re subsidized by the state.
Big Law Business: The book mentions a key trial in 1980. What happened?
Liu: In 1980, there’s an interesting trial, called the Trial of the Gang of 4. It was 10 criminals during the Cultural Revolution. They were on trial. So there were 10 lawyers recently revived, appointed as the defense counsel for these 10 major criminals. They were just called criminals, not even criminal suspects. So that was kind of a symbolic event because the entire trial was televised. It showed that even the worst criminals need lawyers. But if you look at what happened, 35 years later, Chinese lawyers still face a lot of problems in their criminal defense work.
Big Law Business: Will this book limit your ability to return to China?
Liu: I go back pretty regularly, usually two or three times a year. Usually for conferences, sometimes talks. I’ve never had any problems so far, never been stopped at the border, or questioned by security, so I hope it will stay that way. But last week, an Australian scholar was blocked from leaving China for a week or two, so it’s generating a lot of concerns, including from myself.
Our book itself is just an academic book. Its not like we’re tying to use the book to overthrow the communist government. But we did have a division of labor. For the most sensitive interviews, my co-author Terence Halliday went by himself, as a protection to me, because I’m a Chinese citizen, and he’s an American citizen, so he’s a little better protected.