Identifier
Created
Classification
Origin
09PHNOMPENH368
2009-06-04 08:28:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Phnom Penh
Cable title:
CASE AGAINST MU SOCHUA'S LAWYER COULD SET
how-toVZCZCXRO0211 PP RUEHCHI RUEHDT RUEHHM RUEHNH DE RUEHPF #0368/01 1550828 ZNR UUUUU ZZH P 040828Z JUN 09 FM AMEMBASSY PHNOM PENH TO RUEHC/SECSTATE WASHDC PRIORITY 0776 INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
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
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
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