CASE AGAINST MU SOCHUA'S LAWYER COULD SET

UNCLAS SECTION 01 OF 03 PHNOM PENH 000368 SENSITIVE SIPDIS STATE FOR EAP/MLS, P, D, DRL E.O. 12958: N/A TAGS: PGOV PHUM PREL KJUS CB SUBJECT: CASE AGAINST MU SOCHUA'S LAWYER COULD SET PROBLEMATIC PRECEDENT REF: A: PHNOM PENH 297 B: PHNOM PENH 295 C: PHNOM PENH 279 D: PHNOM PENH 273 SENSITIVE BUT UNCLASSIFIED ¶1. (SBU) SUMMARY: As the public political struggles over defamation have played out between Prime Minister (PM) Hun Sen and Sam Rainsy Party Parliamentarian Mu Sochua, the PM's high-profile lawyer has pursued an ethics complaint at the Cambodian Bar Association in a parallel course of action against Mu's lawyer. Post outlines the precarious situation that Mu Sochua's lawyer has managed to create for himself in the context of standards of behavior for lawyers in Cambodia. Possible sanctions, if the lawyer violated the Code of Ethics, range from a letter of warning to disbarment. END SUMMARY. ¶2. (SBU) While a pair of lawsuits between the PM and Mu Sochua (Reftels) has largely receded from public view, a secondary conflict has emerged as the PM's lawyer, Ky Tech, filed an ethics complaint with the Cambodian Bar Association against Mu Sochua's lawyer, Kang Sam Onn. NGOs are closely monitoring the Bar Association's investigation of this complaint. (NOTE: Ky Tech is a high-profile lawyer and former Bar Association President known for his personal ambition and aggressive style. END NOTE.) ¶3. (SBU) During an April 23 press conference, Kang Sam Onn stated that Mu's lawsuit would be filed that day; it was subsequently filed on April 27. He was quoted by newspapers saying that the PM "must be responsible" for his comments, that those comments were an "undeniable" reference to Mu Sochua and constituted insults or defamation. Ky Tech, in his few public comments regarding the Bar Association complaint, indicated that his reasons for filing the complaint were that Kang Sam Onn announced an intent to file a defamation suit before filing the suit, and that Kang Sam Onn claimed Hun Sen defamed Mu Sochua before the court made a decision on that matter. ¶4. (SBU) The Cambodia Bar Association convened a panel to investigate the ethics complaint filed by Ky Tech. The panel planned to meet on May 25, but two of the five members failed to appear for the session. One inspector, Hem Socheat, subsequently stated that he wanted no part of the investigation because he "felt the lawyer had done nothing wrong." The panel convened again on June 1. Kang Sam Onn reported to Poloff that he appeared before the panel, and presented a letter requesting that the panel consider replacing one inspector, Hem Voun, an attorney at the Cambodia Law Firm, which is run by Ky Tech. The panel adjourned shortly thereafter, with no indication of when it might meet again. -------------- Attorneys' Obligations in a Civil Code System -------------- ¶5. (SBU) Cambodia's legal system is a civil code system adapted from the French system. There are no juries, and no trials, other than a summary trial at the end of the process that is typically very short. The case is a confidential file to which all parties have access and to which they may add information. The judge bases a decision on the information contained in that file. The judge's verdict may contain some of the information in the case file, but the full file remains confidential in perpetuity. Under the Code of Ethics, lawyers are bound absolutely by professional confidentiality. ¶6. (SBU) Attorney Yong Phanith of the NGO Cambodian Defenders Project said that attorneys in Cambodia must take care not to pronounce judgment in a case before a judge has ruled. Lawyers may quote their clients words, which are not restricted, but doing so potentially opens the attorney to countersuit by the opposing side. Drawing on a hypothetical example of a murder complaint, where Mr. A accuses Mr. B of murdering his wife, Mr. Yong explained that Mr. A's lawyer may not call Mr. B a murderer - but Mr. A may do so. Mr. A's lawyer may quote his client's statement, but Mr. B might then choose to file a complaint about Mr. A's lawyer with the court, and Mr. A's lawyer might also be subject to investigation and disciplinary action by the Bar Association. -------------- Attorneys and the Media -------------- PHNOM PENH 00000368 002 OF 003 ¶7. (SBU) Article 15 of the Code of Ethics for Lawyers Licensed With the Bar Association of the Kingdom of Cambodia states that media activity by a lawyer is allowed only in strict accordance with his professional obligations, and that such activity requires great caution. It also requires a lawyer to inform and consult with the President of the Bar Association prior to media activity, unless it's impossible to do so. ¶8. (SBU) Several trial attorneys told Poloff they believed the pre-notification requirement was fairly new, instituted in 2007 by the Bar Association under the leadership of Ky Tech. Hong Kim Suon, a lawyer with the NGO Cambodian Defenders Project, gave an example of his 2003 defense of a teacher charged with defamation and disinformation, and said that during the judicial process he frequently discussed the case with the media. After 2007, he said he stopped discussing cases with the media except in very rare circumstances. Sok Sam Oeun, the Executive Director of Cambodian Defenders Project, said the Bar Association made several such changes between 2005-2007, which he believed brought the Bar Association rules in line with government rules for employees contacting the media. (NOTE: Article 15 has been part of the Code of Ethics since it was written in 1995, so it may be that Ky Tech chose to outline more explicitly the President's role and to enforce strictly a provision that was already part of the Code. END NOTE.) ¶9. (SBU) Mr. Sok said that if journalists contacted a lawyer about a specific case, he believed the lawyer may answer the questions, but would need "to be very careful" to avoid giving offense or breaching confidentiality. He stated that, in a similar situation, he would not have held the press conference, but would have counseled his client and then allowed the client to hold the press conference alone. (NOTE: None of Poloff's sources were willing to give an opinion on the possible outcome of the case. END NOTE.) -------------- What's At Stake? -------------- ¶10. (SBU) If the Bar Association found that Kang Sam Onn violated the Code of Ethics, the punishments prescribed by the 1995 National Law on the Bar include a warning, verbal reprimand, suspension not to exceed two years, or disbarment. The law does not specify which sanctions might be applied in which types of cases; the Bar Council makes this determination at the time of their decision. ¶11. (SBU) A number of local and international human rights NGOs expressed concern over the Bar Association being drawn into the middle of the defamation claims. On May 21, Lawyers' Rights Watch Canada wrote to the President of the Cambodian Bar Association urging the Bar to forestall its investigation until the court ruled on the legal complaints. And several NGOs in Cambodia expressed concern that the Bar Association's investigation would have "a chilling effect" on the legal profession in general and the ability of lawyers to represent their clients. -------------- COMMENT -------------- ¶12. (SBU) The PM has had little to say about the Bar Association complaint; it appears that Ky Tech is in charge and managing his client as he follows through on the action against a fellow lawyer. This was particularly evident on May 27, when Ky Tech offered to drop the separate defamation legal case against Kang Sam Onn if the Bar Association would "thoroughly investigate and punish" the lawyer for misconduct. The applicable rules are broad and open to interpretation. Comparing Kang Sam Onn's actions to the example provided by Mr. Yong, it appears that Kong Sam Onn opened himself up to counter-claims by Ky Tech by extemporizing on the case, and implying that the result would be a foregone conclusion. Considering the political nature of this case, together with the fact that Kang Sam Onn may have stepped beyond the boundaries of what other lawyers would do and his former role as an NGO lawyer, it's not surprising that Kang Sam Onn is an attractive target. The lawyer's plight could affect the legal profession down the road. At the very least, the case sends a message to lawyers to exercise extreme caution in representing their clients in the press. ¶13. (SBU) Post will continue to follow this case, especially PHNOM PENH 00000368 003 OF 003 as it pertains to freedom of speech, fair comment against public officials, and media access for all political parties. END COMMENT. RODLEY