(C) SHANGHAI LAWYERS SAY THEY ARE TOLD TO STAY AWAY FROM

C O N F I D E N T I A L SECTION 01 OF 02 SHANGHAI 000562 SIPDIS STATE ALSO FOR EAP/CM AND DRL NSC FOR LOI, KUCHTA-HELBING USDOC FOR ITA/MAC/OCEA - SZYMANSKI E.O. 12958: DECL: 12/18/2033 TAGS: PGOV PHUM SOCI ECON PREL CH SUBJECT: (C) SHANGHAI LAWYERS SAY THEY ARE TOLD TO STAY AWAY FROM "SENSITIVE" CASES REF: A. (A) SHANGHAI 513 ¶B. (B) SHANGHAI 19 ¶C. (C) SHANGHAI 552 CLASSIFIED BY: Christopher Beede, Political and Economic Section Chief, U.S. Consulate General, Shanghai, China, Department of State. REASON: 1.4 (b),(d) ¶1. (C) Summary. Shanghai attorneys say the Shanghai Bar Association informed its members to stay away from sensitive cases related to melamine and residents displaced by proposed Maglev construction (reftels). Many of the lawyers expressed concern that rule of law in East China is threatened by corruption, incompetence and political interference. They said there is a gap between rule of law in practice and how their legal training taught them to expect the system to work. End Summary. ¶2. (SBU) Congenoff met with lawyers in Shanghai during November and December 2008 to ascertain their views on a variety of challenges facing the legal profession. This report is the second of two readouts from those meetings; Shanghai 552 is the earlier report. Sensitive Cases "Need Not Involve" The Legal System -------------- -------------- ¶3. (C) Attorneys in Shanghai expressed their frustrations to Congenoff about the differences between theory and practice in the Chinese legal system. Luo Jie, an attorney who owns her own firm in Shanghai and also works for the Shanghai Bar Association (SBA),told Poloff that the SBA makes sure members understand that they should not be involved in sensitive cases. Specifically, she said the SBA instructed lawyers to not accept cases related to the milk scandal involving melamine (Ref A) and the displacement of Shanghai residents for construction of the high speed Maglev train extension (Ref B). ¶4. (C) Li Yunlong, an attorney at AllBright Law Offices, expressed frustration at being unable to use his skills to help people. "We need NGOs, real NGOs," he said, explaining that average Chinese have little understanding of a legal system and no way to access it. Li said that when government officials say they "will handle a problem," the issue is off limits for lawyers. Li would like to see the legal system be able to accept sensitive cases so that they are resolved in a more �0A;transparent manner. ¶5. (C) Luo stated that the ongoing effort to "democratize" the SBA is a "step in the right direction." Other Shanghai lawyers, however, believe the SBA's voting process -- whereby lawyers vote for delegates and then the Ministry of Justice selects the leaders of the SBA from those elected -- is a sham exercise. (Note: The meeting with five SBA members was held in a Starbucks because the SBA was not able to get approval from the Shanghai Municipal Bureau of Justice to host Congenoff. End Note.) ¶6. (C) None of the attorneys interviewed by Congenoff expressed interest in criminal defense. Many said Hong Kong and U.S. criminal law television dramas contributed to their initial interest in the legal profession, but none of them felt that it was a suitable field for them to practice. One postgraduate student at Fudan Law School had handled a criminal case, but he said he was not eager to repeat the experience. Several of the attorneys have friends who are prosecutors but very few know criminal defense attorneys well. Several of the attorneys said that focusing on transactional work helps them avoid getting involved with criminal cases which are often controversial. Defense attorney pay is lower than in corporate law and that the potential of political interference in sensitive cases limits the ability of defense lawyers to be effective advocates for their clients, dampening their enthusiasm for the practice. Domestic Employment Offers Limited Role for Lawyers -------------- -------------- ¶7. (C) Several lawyers told Congenoff that they believe they have a better chance of helping promote China's stability by studying and working abroad. Pan Weili, a legal consultant for international firm Weil Gotschal, said lawyers in Shanghai are uniquely positioned to facilitate international understanding SHANGHAI 00000562 002 OF 002 because of the high volume of interaction between foreign and domestic clients. Because international lawyers advise clients from many different cultures and legal systems, perhaps in the future young Chinese lawyers will be better spokespeople for explaining China's views to the rest of the world, Pan said. If she develops international expertise, Pan added, then she hopes she might have an opportunity one day to represent China at an international organization. ¶8. (C) Pan's coworker, Xu Haitang, said she wants to study in the United States because it is often very difficult to describe legal terms that do not directly translate between Chinese and Western legal thought. She expressed frustration that even though she has practiced law for two years, she still has difficulty providing clear explanations to Western clients on Chinese legal concepts. Pan Weili added that this is part of a broader problem in China's relations with the rest of the world where discussions between China and other countries often talk about the same subject but fail to express their ideas in a way that the other side can understand. ¶9. (C) Xu Sufei, a legal consultant, worries that without a better criminal justice system and ethics code, investor confidence may fall, causing investment projects to be moved to other countries. She expressed frustration at having to tell Western clients that just because they have an enforceable contract under the law, it may not be enforceable if a local government official wants to ignore the contract. Comment -------------- ¶10. (C) While the attorneys that spoke with Congenoff were very open about expressing their frustrations they were quick to point out that they hope to be positive factors in China's development. The several dozen attorneys interviewed appear to believe that there is slow progress on legal reform. Most of the lawyers said that greater judicial transparency would promote social stability by demonstrating that the legal system can serve as a fair arbiter, even on sensitive cases. Without judicial independence, however, there is no concept in East China of handling problems fairly according to the law. CAMP