In Whose Service? The Transnational Legal Profession's Interaction with China and the Threat to Lawyers
FORDHAM INTERNATIONAL LAW JOURNAL
Fordham International Law Journal
Copyright c 2018 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). https://ir.lawnet.fordham.edu/ilj
IN WHOSE SERVICE?
DOMESTIC VICTIMHOOD AND COMPLICITY....1266
TRANSNATIONAL IMPLICATION .........................1278
TENTATIVE CONCLUSION .....................................1290
When in May 2016, Peng Jiyue, a Chinese lawyer employed by
the Chinese part of the international law firm Dentons Dacheng,
undertook to represent the family of Lei Yang, a young environmental
activist who had died under suspicious circumstances in police custody,
it was an act of kindness, partly motivated by friendship with the
family. They had not formally appointed him in writing, but he
accompanied them to view the bruised body and called for an
independent autopsy on their behalf. The authorities claimed that Lei
had died of a heart attack during a raid on a brothel, whereas his friends
* Reader in Transnational Law, King’s College London; affiliated researcher, NYU
U.S.Asia Law Institute. The author would like to thank an anonymous current LL.B. student at
King’s College London for excellent assistance provided in the initial stages of this research,
and the KURF undergraduate research scheme at King’s College London for supporting his
research. Many thanks to Terry Halliday, Aruna Nair and Gearóid Ó Cuinn for most helpful
comments and suggestions.
1264 FORDHAM INTERNATIONAL LAW JOURNAL
and family thought he had been beaten to death as a result of his
A few days later, Lawyer Peng abruptly withdrew from the case.2
Shortly after his withdrawal, other lawyers from the same firm took on
the representation of the police officers alleged to bear direct
responsibility in Lei’s death. 3 Subsequently, another lawyer, Chen
Youxi, started representing the family. 4 A settlement between the
police and the family, reportedly reached due to great pressure on the
family, led to the dropping of charges against the officers in question.5
This sequence of events raised the question if Dentons had
become implicated in an apparent conflict of interest.6 There was also
the question why Lawyer Peng had withdrawn in the first place. Did
this happen following a request by the authorities? Much was left to
speculation, and the concerns that had been raised were not, apparently,
followed up. The incident illustrated, at any rate, how problematic
operating in the Chinese legal system can be. It suggested that this
system could pose threats to lawyers’ autonomy, as well as their
professional integrity, especially in “sensitive” cases.
The autonomy and integrity of the legal profession have long been
understood as a cornerstone of the rule of law, and lawyers have been
important actors in the struggle for more open societies in many
places. 7 The governments and civil society of the United States,
continental European nations, and the United Kingdom have long
engaged in efforts to develop and export what one might call rule of
law “best practice” models. They have trained key actors in the legal
system such as judges, lawyers, prosecutors and the police, and
conducted exchanges at with partners in authoritarian jurisdictions such
as China.8 The professional bodies representing the legal profession,
such as the Law Society of England and Wales and the Bar Council in
the United Kingdom, have long interacted with the All China Lawyers’
Association and its local branches to promote rule of law through
improvements for the legal profession.9
Against the wider background of collaboration and exchange,
foreign governments, legal professional bodies, and entities working
with them have also not shied away from criticizing the Chinese
government (and other governments) for persecuting human rights
lawyers. For example, in the wake of a crackdown that began in July
2015, the United Kingdom’s Bar Human Rights Committee issued a
joint statement condemning the crackdown for its flagrant violations of
human rights standards. 10 The Committee’s letter detailed these
violations and drew attention to the “significant implications” these
cases had for the rule of law and exercise of the legal profession in
China.11 Such engagement is very commendable; and it is important
that it continue. The situation has never been worse for China’s human
rights lawyers. The latest crackdown on human rights lawyers,
discussed later on, has made this entirely clear; it has seen hundreds of
lawyers and their assistants detained and questioned, as well as several
held incommunicado for long periods, tortured, and publicly paraded
“admitting guilt” and expressing repentance.12
1266 FORDHAM INTERNATIONAL LAW JOURNAL
But to be effective, commitment to the excellent standards
invoked here should be demonstrated throughout the legal profession’s
engagement with colleagues in authoritarian systems. China’s human
rights lawyers are a tiny group of legal professionals whose situation is
especially dire; but their predicaments reflect problems of the legal
profession more widely. Party-State control of the legal profession is
pervasive, and repression of forceful rights advocacy is inherent to the
political-legal system. When international firms go to China, do they
buy into such repression? When Chinese firms go abroad, do their
lawyers bring repressive regulatory demands and practices with them?
Up to a point. In this artcle, I discuss a few key aspects of control
of the domestic and international legal profession in China. I argue that
the regulatory scheme that international firms practicing in China
subscribe to systematically undermines the autonomy of the legal
profession, the lawyer’s duty (under UK rules, discussed by way of
example) to uphold the autonomy of the law, and the ability of law
firms and lawyers to keep client information confidential,. This has
further implications under international law standards. In addition,
weak rule of law and extra-legal, illegal or even criminal Party-State
interference with legal practice may affect the international legal
profession indirectly and end up implicating international law firms in
the human rights violations of the Party-State. However, attempting to
discuss the nexus between “big law” and human rights lawyer
persecution in authoritarian countries is an attempt to lift the lid of a
very large black box. The analysis that follows will in part consist of a
study of available rules, and in part rely on hypothesizing, rather than
proving, likely facts. A wider, systematic, evidence-based study of this
issue is as yet outstanding.
II. DOMESTIC VICTIMHOOD AND COMPLICITY
Domestically, the legal profession is subject to stringent controls,
most importantly through a licensing system that is maintained by the
Ministry of Justice (“MoJ”), aided by the All China Lawyers’
Association (“ACLA”), in accordance with the 2007 Law on Lawyers
and further regulations.13 ACLA claims to be a self-regulatory body.14
But both the MoJ and ACLA are subject to Party-State controls.15 As
argued in the following, all the officially recognized organizations of
the legal profession, including individual law firms, come within the
reach of Party-State control and are therefore potentially both victims
and complicit (if at times reluctant) supporters of a governance system
designed to repress activist and human rights defense-orientated
lawyering. The interlocking systems of control rely on mechanisms
of “relational repression” to achieve comprehensive control.16
To obtain a license to practice, lawyers must not only fulfil
professional requirements but also swear allegiance to the Party as well
as to the rule of law.17 Lawyers operate under an ethics code issued by
the ACLA, called the “Basic Rules on Lawyers’ Professional Ethics,”
according to whose Article 1 they “shall be firm in the ideal and belief
in socialism with Chinese characteristics, adhere to the essential
attribute of the socialist lawyer system with Chinese characteristics,
uphold the party’s leadership and the socialist system, and consciously
uphold the dignity of the Constitution and the law.”18 As the Party itself
and scholars commenting on these developments have pointed out,
“maintaining the leadership” of the Communist Party of China
(“CPC”) is increasingly a “fundamental requirement” of the Party’s
conception of law. 19 Genuine rule of law reform, understood as a
project enhancing control of public power and the protection of
fundamental rights, is increasingly in jeopardy, as recent commentary
from the Supreme People’s Court’s President Zhou Qiang illustrated.
20 The judiciary “should resolutely resist,” he said, “erroneous
influence from the West: ‘constitutional democracy,’ ‘separation of
powers’ and ‘independence of the judiciary,’ [and] make clear our
stand and dare to show the sword.” 21 In other words, becoming a
lawyer in China is premised on committing to upholding a
politicallegal system that lies well outside the normative framework of current
public international law which, inter alia, includes Basic Principles on
the Role of Lawyers and commitments to protecting Human Rights
To keep their license, licensed Chinese lawyers must pass an
annual re-assessment, which examines their overall performance, also
in terms of political conformity criteria. Law firms are subject to a
separate licensing system. 23 As has been widely documented,
assessment and re-assessment of lawyers serve, inter alia, the function
of controlling any political activity by lawyers.24 Numerous cases of
lawyers or law firms having their licenses suspended or revoked
because they handled “sensitive” cases or brought certain legal
challenges against the authorities have been documented, including
those of Liu Wei and Tang Jitian. 25 Due to the overwhelming and
paramount position of the Party, some of the aforementioned
problematic lawyer conduct mentioned results from their dependence
on Party leadership.
For example, upholding the party’s leadership may mean that a
law firm might tell its lawyer that they must refuse to accept
instructions for a client at the behest of a Party-State official – that is,
decision/?lang=en [https://perma.cc/8UGB-VFM6]; Chongyi Feng, Chinese Socialist Rule of
Law – A Critical Appraisal of the Relationship Between the Communist Party and
Comprehensive Law Reform, in JOHN GARRICK & YAN CHANG BENNETT, CHINA’S SOCIALIST
RULE OF LAW REFORMS UNDER XI JINPING 45-58 (2016).
20 . Michael Forsythe, China’s Chief Justice Rejects an Independent Judiciary, and
Reformers Wince, N.Y. TIMES, (Jan. 1
22. See generally Basic Principles on the Role of Lawyers, UNITED NATIONS
COMMISSION ON HUM. RTS. (Sept. 7, 1990), http://www.ohchr.org/EN/ProfessionalInterest/
Pages/RoleOfLawyers.aspx [https://perma.cc/8SBX-BP6X]; G.A. Res. 53/144 (Mar. 8, 1999).
23. See PILS, supra note 13.
25. He Yang, Disbarment (吊照门) (independent documentary film, 2010).
LEGAL PROFESSION'S INTERACTION WITH CHINA
for improper reasons. Lawyers have shared their early experience of
such practices in 2004, detailing in eloquent testimony how first the
authorities and then their own law firm bosses might instruct them not
to represent a “politically sensitive” client.26
The criminal justice system, too, has been used to control lawyers,
who have historically been charged with crimes affecting the integrity
of the judicial process, public order and national security, including
“falsifying evidence,” “obstructing public office,” “gathering a crowd
in a public place to obstruct order” and “[inciting] subversion of State
power or overthrow of the socialist system.” 27 As early as 2011, a
As long as you engage in rights defense, you may, superficially
speaking, act within the law; but the government will never see it
that way; for them, you attack them and shake their legitimacy
(dongyao ta de hefaxing).28
One of the key provisions that has been used to prosecute lawyers
is Article 306 of the Criminal Law (“CL”), which provides for criminal
punishment of lawyers who falsify or suppress evidence or instruct
their clients to falsify or suppress evidence. 29 The main problem with
Article 306 of the CL has been the retaliatory targeting of lawyers for
trying to challenge the prosecution’s evidence, e.g., by producing
witness statements contradicting those of the prosecution, or
challenging the reliability of confessions; and the provision is widely
held to have produced a chilling effect.30
Following the adoption of increasingly principled, autonomous
and vocal advocacy practices by some lawyers, the authorities have
tightened controls and the Party has sought to strengthen its role within
law firms. 31 This process, which could be observed throughout the
Reform and Opening era, accelerated under the leadership of Xi
Jinping, which, as I argue, abandoned the paradigm of gradual
transition to a more liberal system, and instead introduced explicitly
anti-liberal changes. 32 These changes have re-emphasized Party
control of the law and weakened rule of law protections. 33 Most
recently, they have resulted in constitutional revisions that enable Xi to
stay in power without term limitations, while also enshrining his
thought as guiding in the text of the Constitution.34
The shift toward anti-liberal law initiated under Xi Jinping has
had momentous consequences for all actors in the legal system,
especially lawyers, whose fundamental role made them particularly
vulnerable to being perceived as potential irritants and challengers.
This shift is reflected, inter alia, in what Ahl has termed the
“politicization of China’s judicial examination.”35 At the level of legal
rules, it became important to widen the mechanisms that allowed the
authorities to outlaw and vilify ‘rights lawyers’ as troublemakers and
rabble-rousers. For example, Article 309 of the CL, as revised in 2015,
[I]nsulting, defaming or threatening judicial personnel or litigation
participants, and not heeding the court’s admonitions, seriously
disrupting courtroom order . . . [as well as] other conduct seriously
disrupting court order.36
A MoJ Regulation on the Management of Law Firms, moreover,
requires Chinese law firms to ensure that the lawyers on their staff not
engage in too-vocal advocacy or political speech. 37 They must ensure,
inter alia, that their lawyers do not:
[P]ublish distorting or misleading information on cases handled by
themselves or others, or maliciously hype up cases, . . . [that they
not] put pressure on the authorities and attack legal authorities or
undermine the legal system by setting up groups, producing joint
letters, or by publishing open letters, . . . [that they not] humiliate,
defame, threaten or beat judicial personnel or participants in a
litigation, or engage in denial of the state-determined nature of an
evil sect organization or other conduct seriously disrupting court
order [sic]; . . . [and that they not] publish or disseminate speech
that denies the political order laid down in the Constitution, denies
fundamental principles or endangers national security, or use the
internet or the media to stoke discontent toward the Party and
Government.38 (Emphases added)
In the hands of a Party-State controlled judiciary, the language of
these newly introduced provisions is highly elastic. In practice, the use
of these provisions is likely to complement the already available
arsenal of criminal and other legal provisions hampering lawyers’
exercise of their profession. Such sweeping obligations imposed on law
firms are all the more problematic because lawyers are in some cases
compelled to use (otherwise arguably questionable) means such as
open letters about pending cases and peaceful online demonstrations
about procedural violations. They resort to such methods in order to
1272 FORDHAM INTERNATIONAL LAW JOURNAL
overcome inherent weaknesses of the judicial process, such as
violations of the right of access to lawyers of one’s own choice, the
lack of publicness and openness of judicial proceedings, and what Li
Ling has aptly described as the principle of Chinese judicial
dependence. 39 The new rules impose an explicit obligation on law
firms to ensure that their staff politically censor themselves.
Noncompliance puts the firms’ registration and hence their very
existence at risk.
Beyond the regulatory regime and the rules of criminal law,
lawyers who take on criminal defense cases or other cases involving
confrontation with the Party-State’s security apparatus have always
been at risk of wider persecution. 40 Such persecution has included
violence. 41 In many instances, lawyers have triggered persecution
simply by insisting on compliance with legal rules the authorities are
unwilling to follow, such as rules safeguarding the right to file cases,
securing their access to case files and defendants in custody.42 They
have also been persecuted for refusals to comply with unlawful orders
and instructions from the authorities and for complaining about
government illegality or criminality.43
While Lei Yang’s, the young environmental activist, unexplained
death in custody was a shock, it fit in with what human rights lawyers
had learned to expect. For example, in June 2016, in Nanning, lawyer
Wu Liangshu was beaten and had most of his business suit torn off
when questioning the necessity of undergoing an enhanced body check
in one of Nanning’s district courts of law.44 Perhaps more commonly,
lawyers engaging in work that provokes the authorities will be attacked
by persons referred to as “unknown thugs.”45 There can be a blurred
line between these actors, a sort of obscurity which can in turn be
exploited by the authorities. For example, the police threatened one
lawyer explicitly with “being Lei Yang’ed” if he failed to comply with
instructions; he bravely reported this later via social media.46
As already mentioned, moreover, some lawyers have been
subjected to even more severe measures such as enforced
disappearance and torture, as well as criminal convictions and
incarceration under various detention systems (the line between these
two is becoming increasingly blurred).47 I discussed the example of
lawyer Gao Zhisheng eleven years ago in these pages.48 A pioneer of
human rights lawyering in China, he later suffered brutal torture and
long-term detention at the hands of the police, who, on the occasion of
his first torture experience told him that he would be given the same
“treatment” as the clients he had sought to defend by exposing their
torture in open letters published online.49
The use of state-centered violence, too, has intensified under Xi
Jinping, which saw a particularly severe and extensive lawyer
crackdown that is still ongoing as of this writing.50 Beginning in July
2015, some three hundred lawyers and legal assistants were rounded
up and subjected to coercive questioning by the authorities. 51 The
majority were released after promising not to advocate on behalf of a
small number of lawyers subjected to secret detention, some of whom
were later convicted of political crimes.52 Of those who were forcibly
disappeared or held under extremely permissive rules on “residential
surveillance in a designated location,” some, such as lawyer Wang
1274 FORDHAM INTERNATIONAL LAW JOURNAL
Quanzhang, have not come back at all yet as of this writing.53 Among
those who came back, or were formally punished and could be visited
in prison, Li Chunfu, was diagnosed with serious mental illness the
following day. 54 A few days later, lawyer Xie Yang provided a detailed
account of his torture to his defense lawyer, who decided to publish the
55 By July 2017
, it had emerged that some six detainees claimed
to have been forcibly drugged. One of them commented in a
conversation in July 2017 that the forced drugging, in particular:
. . . made you think you were finished . . . you couldn’t know
[what you’d been given] and so you thought, for sure they want to
kill you. You won’t get out of here alive. It was only in there that
I really understood what torture was.56
The same month, lawyer Wang Yu released a statement in which
she described how she had been kept confined, deprived of food, and
tormented in various other ways during her detention.57 Releasing this
statement no doubt took great courage. It was also a step in a process
of recovery from what the authorities had put her through. Like others,
Wang Yu had been wheeled out in front of television cameras, where
they had to talk about their ‘crimes,’ admit guilt, profess to repentance,
and praise and thank the Party-State authorities.58
Wang Yu, having been detained for over a year “on suspicion of
state subversion,” spoke to the media in what appeared to be a holiday
resort, renouncing her former advocacy denouncing two foreign
organizations59 for human rights awards given to her earlier that year,
and thanking and praising the authorities. Her boss, Zhou Shifeng, at
his trial, similarly admitted guilt and spoke of his deep gratitude toward
the authorities that had already broadcast his statement of repentance
shortly after his initial detention and held him incommunicado for over
a year.60 To prepare for this strange performance, the authorities had
placed Zhou under “residential surveillance in a designated location”
without access to legal counsel, ensured his ‘representation’ by a
lawyer they had chosen and procured a note, handwritten by Zhou,
stating that he did not wish his family to attend the trial.61 Another
In a 10-minute final statement, the Peking University law school master’s degree
holder praised China’s legal system, saying it was “so much beyond the Western rule
of law,” and that the trial would “stand the test of the world.” The praise was not
included in the official transcript published hours later.
See, e.g., Jun Mai, How Chinese rights lawyer’s courtroom mea culpa went off script,
SOUTH CHINA MORNING POST (Aug. 2
61. Zhou Shifeng (周世锋), 天津二中院：周世锋向法院书面请求不希望亲友旁听庭
审 [Tianjin Second Intermediate Court: Zhou Shfeng submits written request to the Court,
stating that he does not wish for family and friends to audit his trial], PEOPLE’S NETWORK (Aug.
1276 FORDHAM INTERNATIONAL LAW JOURNAL
lawyer described at length how his own trial was negotiated, scripted
and, indeed, rehearsed, even though it was not selected for a “TV
trial.” 62 The effects of the TV trials were further amplified by
accompanying articles in the official news media, as well as further
audio-visual materials officially circulated video-clips that cast human
rights advocates as enemies of the People and the State.63
Of course, the vast majority of lawyers, and in particular those in
commercial practice, are not affected by the more intense repressive
measures outlined here Their professional experience, especially if,
like the vast majority of lawyers, they do not take on criminal cases, is
removed from that of the human rights lawyers who fall victim to
persecution. Contrary to how the Chinese and international legal
profession in China tend to be discussed by professionals and
academics, there is no neat and clear dividing line. There can be no
such line, not least because legal work does not always neatly fall into
separate categories. Many cases can engage the abuse-prone criminal
justice and/or Party investigation system or become ‘sensitive’ for
variety of other reasons. Even in the absence of such connections the
Party-State system deliberately uses the social and professional
networks on which lawyers depend to influence their actions. For
example, it uses the law firm and its head as a tool to pass on
instructions to individual lawyers, as when it instructs a ‘boss’ to
demand that a particular law firm employee cease to represent a
Indeed, there is every indication that the control of the legal
profession is not only intensifying with regard to perceived
‘subversive’ elements within the profession, but also being extended
further to all its members, as a few further examples of new practices
will illustrate. The first, perhaps most powerful and pervasive way in
which this is achieved is through the licensing system, which affects all
lawyers. 64 In a situation where, by nearly everyone’s admission, by
anecdotal accounts and according to official statements, corruption in
the judicial profession and more widely amongst actors in the legal
3, 2016), http://legal.people.com.cn/n1/2016/0803/c42510-28608968.html [https://perma.cc/
62. Anonymous conversation #300-17-1.
63. 林乐媛, 颜色革命 Color Revolution (Aug. 4, 2016), https://www.youtube.com/watch
?v=8qBt-i9ErSY. English translation available at
64. See PILS, supra note 13.
system, has long been endemic, lawyers’ independence from the
PartyState is adversely affected as it makes them vulnerable. 65 Scholars
investigating how corruption affects the legal profession have, for
example, described practice of “nurturing judges” (yang faguan) –
potentially meaning anything from taking them to restaurants to money
bribes – as widespread, and viewed as common and acceptable, at least
in some locations. 66 For example, lawyers encounter a world of ‘state
capitalism’ where legal rules of corporate governance are routinely
disrupted by the Party exercising control. 67 Defenders of the strict
licensing system requiring an annual re-assessment to keep one’s
license might contend that it is necessary to weed out corrupt lawyers.
But from the perspective taken here, this system is itself corrupted, in
ways indicated above; it is incompatible with rule of law principles.
Second, partly claiming to respond to malpractices in the legal
profession and wider legal system, the authorities are rolling out ever
more comprehensive programs of surveillance include the so-called
Social Credit System.68 Once this program is in place nationwide, all
lawyers, along with all other Chinese citizens, will be given a ‘social
65. Commenting on corruption within China’s court system, Supreme People’s Court
President Zhou Qiang said, for example, that “the situation is grim and the task arduous.” In
March 2016, after a year in which, according to the same official report, a total of 2,424 judicial
staff were investigated and punished over graft, he said, “we will continue to put high pressure
on corruption.” Every year, the Annual Work Report by the Supreme People’s Court President
(see, e.g., Zhou Qiang (周强 ), 最高人民法院工作报告— ——2017 年 3 月 12 日在第十二届
全国人民代表大会第五次会议上 [Supreme People’s Work Report —- submitted at the Fifth
Plenary Meeting of the Twelfth NPC on 12 March 2017], The Supreme People’s Court of the
People’s Republic of China (Mar. 1
http://www.court.gov.cn/zixun-xiangqing37852.html) includes a rundown of disciplinary procedures, investigations, prosecutions and
convictions for judicial corruption-related crimes, such as “bending the law” and bribe-taking;
and professional judges have been quitting in rather large numbers. See 法官离职潮背后:丰满
的理想抵挡不住现实骨感 [What lies behind the wave of judges quitting: fine ideals cannot
withstand sense of realism], SINA.COM (July 24, 2016),
66 . Outside litigation contexts, the situation is not necessarily better. See Sida Liu,
Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal
Services Market, 206 CHINA Q. 276, 276-93 (2011); see also TERENCE C. HALLIDAY & SIDA
LIU, CRIMINAL DEFENCE IN CHINA: THE POLITICS OF LAWYERS AT WORK (2016).
67. JiangYu Wang, Corporate Governance in China: The Law and Its Political Logic, in
Routledge Handbook of Corporate Law 183-211 (Roman Tomasic ed., 2017)
68. Yongxi Chen & Anne S.Y. Cheung, The Transparent Self Under Big Data Profiling:
Privacy and Chinese Legislation on the Social Credit System, 12 J. COMP. L. UNIV. H.K. 3
); Jeremy Daum, China’s Social Credit System, CHINA DIGITAL TIMES (Jan. 18, 2018),
[https://perma.cc/DZJ8-UTYE]; Merics, China’s Social Credit System, CHINA MONITOR (May
24, 2017), https://www.merics.org/en/microsite/china-monitor/chinas-social-credit-system.
1278 FORDHAM INTERNATIONAL LAW JOURNAL
credit’ score by the State, and this score will affect questions such as
whether they can travel abroad. 69 (An additional issue is the
government’s plans “to rank lawyers by seniority and restrict [the
handling of] key cases to ‘qualified’ advocates.”)70
Lastly, the Party has not only pursued a goal of achieving “total
coverage” of Chinese law firms’ establishment of Party branches
through “professional Party-building work.”71 As the abovementioned
MoJ Regulation indicates, Chinese lawyers and law firms are
increasingly required to aid the Party-State in ensuring political
selfcensorship.72 Through extensive reporting obligations in the context of
the re-assessment system as well as the penetration of law firms by the
Party, the wider Chinese legal profession is thus also affected by a
process of intensified “politicization,” or intensified Party control.
In sum, the arsenal of rules and measures by which the Party-State
controls the domestic Chinese legal profession is impressive, and it has
been further extended under Xi Jinping. The suggestion that lawyer
repression in China limited to a handful of marginalized human rights
lawyers is inaccurate, and there are plenty of trajectories whereby
undue pressure on legal professionals is extended to the wider,
including the commercial legal profession. International lawyers
coming to China might thus face many calls on their sense of solidarity
and responsibility for upholding the autonomy of the legal profession.
As the following section discusses, however, the system gives them
many reasons to stay silent.
III. TRANSNATIONAL IMPLICATION
When foreign lawyers go to work in China, they come under the
jurisdiction of domestic Chinese law. When Chinese lawyers work
abroad, they are required to obey local laws, too. In both cases,
however, they do not entirely shed the system of their jurisdiction of
origin; foreign lawyers generally remain bound by certain professional
standards grounded in the values of the legal system that admitted them
to the profession. Chinese lawyers remain bound not only by the rules
of their profession narrowly speaking; they also retain their status as
subjects of the Party-State and remain in important ways subject to its
control73 As shown in the previous Section, such control and influence
take a variety of forms, not all of which are legal even on the terms of
the domestic Chinese legal system.74 Moreover, domestically, lawyers
and law firms can be both victims and complicit supporters of
repression. The Chinese system’s transnational effects in some ways
reflect its domestic traits. In particular, foreign lawyers and law firms,
too, are at risk of becoming complicit in the repressive system, even
though a special system of rules has been devised for them, and even
though they are barred from directly competing with their Chinese
The regulatory regime governing foreign law firms in China is
based on the 2001 Regulation on the Management of Representative
Offices of Foreign Law Firms in China (“Representative Office
Regulation”) and its 2002 Interpretation Rules. 75 Formally, the
Representative Office Regulations are secondary legislation, and are
also governed by the 2007 Law on Lawyers (Article 58).76 Under these
rules, any international law firm setting up an office in China will be
required to go through a licensing system for setting up a
representation; and it cannot “practice Chinese law,” not even by
employing Chinese lawyer staff.
73. This includes registration and reporting requirements. See, e.g., ‘关于提供律师事务
所在境外设立分支机构详细信 息的通知 [notice on supplying detailed information on
establishment of law firm branches abroad],’ GZLAWYER.COM (Apr. 12, 2017),
[https://perma.cc/5JWZ5BSJ]. See also infra note 88 (discussing the Belt and Road Initiative).
74. See Jiayu, supra note 45.
75. 外国律师事务所驻华代表机构管理条例 [Regulations on the Administration of
Foreign Law Firms’ Representative Offices in China] LAWINFOCHINA.COM (2001),
司法部关于执行《外国律师事务所驻华代表机构管理条例》的规定 [Provisions of the
Ministry of Justice on the Execution of the Regulations on the Administration of Foreign Law
Firms’ Representative Offices in China], LAWINFOCHINA.COM, http://www.lawinfochina.com/
display.aspx?lib=law&id=2402&CGid. Law firms based in Hong Kong and Macau—which are
separate jurisdictions from mainland China—are subject to similar rules, see The People’s
Republic of China Law on Lawyers, supra note 13.
76. The People’s Republic of China Law on Lawyers, supra note 13.
The Representative Office Regulation requires that such
representative offices and individual representatives (lawyers) shall,
respect Chinese laws, regulations and rules, abide by Chinese
lawyers’ professional ethics and professional discipline, and not
harm China’s national security or social public interests.
The language of “professional ethics and professional discipline”
creates a link to domestic standards. Domestic lawyers found guilty of
breaches may face punishment under the Ministry of Justice “Measures
for Punishment of Unlawful Acts by Lawyers and Law Firms” (
“Measures for Punishment”).78 Misconduct by foreign lawyers would
be dealt with in accordance with Articles 24 and 31 of the the
Representative Office Regulation. 79 It stipulates that when foreign
lawyers engage in conduct endangering national security or public
order or “social management order” (a vague term), they too may be
subject to criminal or administrative punishment, although it does not
specify under what administrative rules.80
What is perhaps of more immediate practical relevance is that all
lawyers working in such representative offices are barred from actually
engaging in “practicing Chinese law.” 81 In practice, it is virtually
impossible to operate in China without in some way engaging in an
interpretation of Chinese law while providing services to clients. Any
specific activity may or may not constitute “provision of Chinese law
services” 82 – what matters, according to informal and confidential
conversations held with foreign lawyers of over ten years of experience
of practicing in law firm offices in China, is that this requirement hangs
“like a sword of Damocles” over each Representative Office.83 Falling
afoul of the requirement can result in suspension or revocation
(zhuxiao, diaoxiao) of the license (permit) to practice.84 One lawyer
observed that they did not think that any effective legal challenges to
license revocation or means of redress would be available in practice
in such a case.85 Low confidence in the possibility of challenging unfair
interpretations of such rules, due to the weak rule of law environment,
can only enhance their chilling effect.86
Partly in response to such pressure, but mainly for wider
commercial reasons, a growing number of foreign law firms is creating
loosely structured mergers.87 There is, for example, the form of the
Swiss Verein.88 The Verein merger retains separate local profit pools
for the two entities (the Chinese and foreign firms). 89 The verein
structure cannot necessarily avoid reputational liability for one’s
Some new local regulations have created further opportunities for
Chinese and foreign law firms to create joint offices. In particular,
administrative regulations created by the Shanghai Bureau of Justice,
allow for what is called “reciprocal assignment” (hupai) of legal
consultants between a Chinese and a foreign firm, and for “affiliated
operation” (lianying) of a Chinese and a foreign firm. 90 These new
opportunities would appear to reduce the risks of “providing Chinese
law services” by normalizing such activities but also bring some new
problems, since there would be even greater proximity to the
obligations and liabilities of domestic Chinese lawyers, and thus
greater risks of complicity with Party-State illegality or crime.
In parallel with this, the interaction between domestic and foreign
lawyers and law firms has come within the ambit of Xi Jiniping’s
global expansion project called the “Belt and Road Initiative”
(“BRI”).91 This initiative has not only led to ambitious attempts to
remodel law on anti-liberal les and weaken the international human rights
law regime by reinterpreting its fundamentals, such as human rights.92
It has also led to numerous subordinate initiatives and organizations
including a new “’Belt and Road’ Cross-border Lawyers” Talent Pool
90. See 中国（上海）自由贸易试验区中外律师事务所互派律师担任法律顾问的实
施办法 [Measures for the Implementation of the Reciprocal Assignment of Lawyers to Serve as
Legal Consultants by Chinese and Foreign Law Firms in the China (Shanghai) Pilot Free Trade
(promulgated by the Shanghai Bureau of Justice, People's Gov’t of Shanghai Mun.,
effective Nov. 18, 2014)
(addressing what is called the “reciprocal assignment” (hupai 互派) of
legal consultants between a Chinese and a foreign firm); 中国（上海）自由贸易试验区中外
律师事务所联营的实施办法 [Measures of the Implementation of Affiliated Operation between
Chinese and Foreign Law Firms in the China (Shanghai) Pilot Free Trade Zone]
by the Shanghai Bureau of Justice, People's Gov’t of Shanghai Mun., effective Dec. 21, 2014)
(involving the “affiliated operation” (lianying 联营) of the Chinese and a foreign firm).
91. See Building the Belt and Road: Concept, Practice and China’s Contribution, BELT
AND ROAD FORUM (May 11, 2017), https://eng.yidaiyilu.gov.cn/zchj/qwfb/12731.htm
92. See ‘首届”南南人权论坛”《北京宣言》[First South-South human rights dialogue
“Beijing Declaration”], XINHUA NET (Dec. 8, 2018),
http://news.xinhuanet.com/politics/201712/08/c_1122081753.htm [https://perma.cc/R3AT-2WWC]; see also 常驻联合国日内瓦办事
处俞建华大使 [Ambassador Yu Jianhua of the Chinese Mission to the United Nations Office
at Geneva], 坚持合作共赢 共促人权发展 [Win-Win Cooperation for the Common Cause of
Human Rights], PEOPLE’S REPUBLIC OF CHINA MINISTRY OF FOREIGN AFF.,
http://www.fmprc.gov.cn/web/dszlsjt_673036/t1538415.shtml (May 1, 2018) [https://perma.cc/
RS35-F2FW], translated in PERMANENT MISSION OF THE PEOPLE’S REPUBLIC OF CHINA TO
THE UNITED NATIONS OFF. AT GENEVA AND OTHER INT’L ORG. IN SWITZ., (Mar. 1, 2018),
whose establishment indicates that ACLA, as an organization of the
Party-State, intends to play a key role in the selection of foreign lawyers
invited to participate in BRI projects.93
In sum, international law firms in China operate at the sufferance
of authorities that have become increasingly intolerant of autonomous
legal practice over the past few years. They are required to follow a
rule of “not practicing Chinese law” that stifles their activities and
makes them vulnerable to pressure.94 While the regulatory framework
is somewhat obscure, these firms moreover seem to be subjected to
explicit requirements to ensure that their staff censor themselves
politically, avoiding any criticism of the government or the system
under which they operate. 95 Taking these factors into account, it is
perhaps not surprising that when the authorities launched their latest,
and thus far biggest, crackdown on Chinese human rights lawyers, The
American Lawyer reported, “In China’s crackdown on rights lawyers,
big law says little.”96 (In fact, it appears that Big Law said nothing at
all publicly, leaving expressions of concern and protest to be produced
by professional associations and their representatives.)
There are several problem areas of international (or transnational)
legal services with a China element.
The first is (client) confidentiality, an issue encompassing
different sets of rules that govern contractual obligations of
confidentiality, professional ethics regarding privileged information,
93 . The initiative is described as follows: “At the event, the All China Lawyers
Association announced the establishment of a ‘Belt and Road’ Cross-border Lawyers Talent
Pool. 143 Chinese and foreign law firms and 205 Chinese and foreign lawyers became the Pools’
inaugural members. It is reported that ACLA will further refine its management on the basis of
different national systems and areas of professional specialization and actively recommend
outstanding foreign legal service personnel to participate in the assessment and arbitration
organizations [评审、仲裁机构] of international economic and trade organizations, and to
recommend foreign legal personnel to participate in investment in Chinese enterprises in
countries and regions along the ‘One Belt and One Road’”. 中国律协与”一带一路”沿线多国
搭建法律服务合作网 [The All China Lawyers Association and the “One Belt, One Road”
Multinational State Building Legal Services Cooperation Network], XINHUA NET (June 24,
2017), http://www.xinhuanet.com/world/2017-06/24/c_1121203227.htm [https://perma.cc/6B
94. See Zhang, supra note 87.
95. See id.
96. In China’s crackdown on rights lawyers, big law says little, THE AM. LAW., (July 24,
2015), https://www.law.com/almID/1202733049955/?slreturn=20180127060251 [https://
perma.cc/M2U2-739G]. In fact, it appears that Big Law said nothing at all publicly, leaving
expressions of concern and protest to be produced by professional associations and their
1284 FORDHAM INTERNATIONAL LAW JOURNAL
and data protection and privacy rights. Lawyers pointed out that
electronic surveillance and data-selling are rife in China, and that
Chinese law firms in general feel unable to refuse requests to relinquish
information to the police or other authorities requesting them.97 As a
result, the promises made to clients that their information could be kept
confidential may be spurious.98 Academics, on the other hand, point to
the generally weak legal protection in this area. Thus Chen and Cheung
. . . [P]ersonal data as a general subject has yet to be clearly defined
and effectively protected under Chinese law [and that] rights that
data subjects are entitled to under a personal data protection
regime are rarely mentioned in China and are, at best, provided for
under scattered sector-specific laws . . . Given the inadequate
protection afforded to personal data in China, the country is an
ideal social laboratory for big data experimentation, data
intelligence and mass surveillance.99
Discussing the already-mentioned ‘Social Credit’ system being
rolled out, these authors point out that the authorities in charge can
gather records also from ‘industry associations,’ which may well be
understood to include the lawyers’ associations at various levels as well
as receive information supplied by private individuals. They also
discuss the many ways in which private entities may gain access to and
use information on ‘social credit’ or ‘public credit’ gathered in this
way. 100 Additionally, it is recognized that the Party-State uses
technology to practice involuntary cyber-surveillance.101 Even though
it is impossible at this stage to gain a detailed understanding of the
practices that may arise under these Party-State policies and practices,
it is not difficult to see that both the provision and the use of ‘public
credit information’ may be in tension with the obligations of lawyers
and law firms under rules devoted to protecting confidentiality,
privacy, and personal data, both with regard to clients, and with regard
to employees and colleagues.
It is imaginable that such issues might arise with regard to foreign
law firms operating in China, as well as with regard to Chinese law
firms operating in western countries. To give a randomly chosen
example of the latter case, lawyers working with King & Wood
Malleson are listed as working in both the London and Shanghai
branches of the firm.102 Of course, the Shanghai branch of this firm has
established a Party cell.103 It is not possible, without insider knowledge,
to determine what the role of this Party cell is, what decisions, if any,
it makes or passes on from the higher echelons of the Party leadership,
what study sessions it organizes, and overall what the influence of the
Party on the operation of the law firm is. But there can be no doubt that
having a Party cell has a powerful symbolic significance, at least. It
might serve to remind lawyers licensed under the Chinese system of
their legal obligation to show loyalty to the Party and to serve a system
in which the principle of Party leadership has been declared to be
identical with the principle of “socialist rule of law with Chinese
A second issue is the interaction of transnational law firms with
inherently abusive systems of discipline and criminal punishment in
China. For example, there have been cases in which the criminal justice
system was apparently abused by commercial actors seeking to put
pressure on competitors or opponents. 105 In China, the issue is
recognized and discussed as one of “turning private conflicts into
criminal cases.” 106 It can involve, for example, taking a business
competitor or opponent in a business lawsuit into police custody as a
1286 FORDHAM INTERNATIONAL LAW JOURNAL
“favor” from the police; 107 under the revised rules of criminal
procedure, this might include the use of “residential surveillance in a
designated location” or, as it has been dubbed, “non-residential
residential surveillance” of the target individual. Where such practices
do occur, they can raise the very difficult question of how far legal
representatives should go in exposing or challenging them.
The abuses, detailed earlier, against professional lawyer
colleagues are different yet raise somewhat similar issues and may
serve as a second example. Even where a lawyer or law firm has no
obligations toward a detainee as a client they may have obligations of
care or solidarity as an employer or colleague. Yet, the system provides
many incentives against exposure or challenges, and incentives for
participation in persecution, as has been discussed elsewhere. To give
just one example, when human rights lawyer Pu Zhiqiang tried to
expose abuses occurring in the Party-governed system for “discipline
and inspection” typically affecting Party members, such as officials or
CEOs of SOEs, who are suspected of corruption, he suffered severe
Due to the complexity and obscurity of abuses in the criminal
justice system and parallel systems for discipline and punishment, it
may be difficult to establish big law firms’ implication in abuses. But
as the example, discussed at the outset, of lawyer Peng Jiyue’s attempt
to help in the Lei Yang case illustrated, commercial law firms are not
isolated against criminal injustices just by virtue of their status.109 Their
dependence on the goodwill of the authorities for permission to operate,
moreover, exposes them to the same control techniues as other lawyers
in China, once they have become involved in a “sensitive” case.110
A third issue is potential threats arising from widely endemic
corruption, be it with regard to the judiciary or more widely. As noted
above, corruption in the judicial system, in particular, is a widespread
problem.111 In theory, because they commit to “not practicing Chinese
law,” foreign law firms are somewhat shielded from the implications
of such corruption. But through collaborative relationships, they may
at least acquire knowledge of ongoing corruption. Similarly, they may
risk becoming implicated in corrupt business practices of their clients.
The examples discussed here raise not only the question how, and
in whose service, such firms work when they operate transnationally
in business locations with autocratic legal systems. In the system
governing Chinese lawyers, at least, the obligations imposed on
domestic lawyers are incompatible with principled and professional
service to the client and adherence to the rule of law, on any credible
understanding of this concept. In some measure, Chinese lawyers are
instead required to serve the Party-State, and such obligations and the
problems they bring can affect collaboration with foreign legal
professionals operating in China, as well as Chinese legal professionals
operating abroad, as long as these individuals retain their status as
lawyers subject to the standards of the “sender” country. An even more
urgent concern is the potential for direct clashes between rules and
principles governing the legal profession “there” and “here.” For
example, “soft law” human rights obligations and professional legal
ethics obligations affect UK lawyers who go to China to work there.
First, UK lawyers working abroad operate under standards of
professional legal ethics, such as, the England and Wales Solicitors’
Regulation Authority’s 2013 Overseas Rules.112 These require, inter
alia, that solicitors practicing overseas “act with integrity.”113 (They
also require that solicitors “not allow [their] independence or the
independence of [their] overseas practice to be compromised.” 114
Even if only considering the obligations imposed upon
Representative Offices by the Representative Office Regulation in
conjunction with rules of professional ethics and discipline governing
Chinese lawyers, it is hard to see how Principles 2 and 3 can be honored
by lawyers admitted to practice in England and Wales who go to work
111. See PILS, supra note 40.
112. Solicitors’ Regulation Authority, SRA Overseas Rules 2013 (2017). See Solicitors
Regulation Authority, Introduction to SRA Overseas Rules (Oct. 1, 2017).
in China. There they will be required, inter alia, to take on
responsibility for their colleagues’ censoring themselves so as not to
“stoke discontent” with the Party-State. They will also work in an
environment where the Party-State routinely interferes with the
handling of certain kinds of legal case. Is working in and benefiting
from organisations submitting to such requirements and such
interference to act “with integrity”? Taking into account the wider
problems of the Chinese legal system as it operates “on the ground,”
including the “problem areas” briefly considered just above, there are
even more reasons to be concerned about whether UK lawyers can “act
with integrity” and fend off situations in which their independence is
From its published sources, it is not at this point clear what the
Law Society of England and Wales does to ensure that its Overseas
Rules are adhered to. Given its effective status as regulator, some
monitoring may reasonably be expected. It would in any event be
desirable for the Law Society and similar bodies to provide public
accounts of how they discharge their transnational responsibilities.
Second, ommercial law firms are under soft law requirements at
the international level. The UN Guiding Principles of Business and
Human Rights (“UNGP”), endorsed unanimously by the Human rights
Council in 20111, stipulate that business enterprises should respect
human rights. 116 Prima facie, the designation “business enterprise”
applies to large transnational law firms, whose operation can have a
direct impact on the well-functioning or otherwise of domestic legal
systems and hence on concerns such as access to justice, the right to a
115 . Additional concerns may arise with regard to the new solicitors’ qualifying
examinations (“SQE”) under the Solicitors’ Regulation Authority (“SRA”), a branch of the Law
Society of England and Wales. According to its recent consultation paper, it seems possible that
qualifying work experience could be gathered in China if it qualifies as a “a regulated, overseas
jurisdiction,” providing “the opportunity for them to develop the practical legal skills that the
SRA would [assess through the SQE].” SOLICITORS REGULATION AUTHORITY, A NEW ROUTE
TO QUALIFICATION: THE SOLICITORS QUALIFYING EXAMINATION (2017).
116. U.N. OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, GUIDING PRINCIPLES ON
BUSINESS AND HUMAN RIGHTS: IMPLEMENTING THE UNITED NATIONS ‘PROTECT, RESPECT
AND REMEDY’ FRAMEWORK (2011); John Gerard Ruggie, The social construction of the UN
Business and Human Rights Principles,
(Harvard Kennedy School Mossavar-Rahmani Center
for Business and Government Corporate Responsibility Initiative Working Paper No. 67, 2017)
Human Rights Due Diligence, BUS. AND HUM. RTS. RESOURCE CTR.,
(last visited July 3, 2018)
fair trial, and (as seen in the above context) on lawyers’ rights of
freedom of speech.117
As the International Bar Association (“IBA”) recognizes,
professional bodies representing the legal profession should instruct
their members on how the UNGP affect not only their clients, but
potentially them as well.118 Certainly, the IBA is correct in stating that
the UNGP cannot be taken to undermine any of the legal profession’s
most central roles in supporting the rule of law and human rights, 119
and this must include principles such as access to counsel for human
rights violators. However, precisely because the role of lawyers in
upholding human rights is so central, we surely need to hold them to at
least the same requirements as other businesses when it comes to
refrain from undermining rule of law and human rights principles, or
to acting to uphold these principles as best they can.
UNGP Principle no. 11 states that:
Business enterprises should respect human rights. This means that
they should avoid infringing on the human rights of others and
should address adverse human rights impacts with which they are
Principle no 13 states:
Business enterprises should not undermine States’ abilities to meet
their own human rights obligations, including by actions that
might weaken the integrity of judicial processes.121
According to the Commentary provided by the Office of the High
Commissioner for Human Rights, this means in particular that:
The responsibility to respect human rights requires that business
enterprises: (a) Avoid causing or contributing to adverse human
rights impacts through their own activities, and address such
impacts when they occur; (b) Seek to prevent or mitigate adverse
human rights impacts that are directly linked to their operations,
117. The UNGP do not provide a definition of “business enterprise.” See infra note 117
on the IBA’s interpretation.
118. See INTERNATIONAL BAR ASSOCIATION, IBA PRACTICAL GUIDE ON BUSINESS AND
HUMAN RIGHTS FOR BUSINESS LAWYERS 28 (2016),
119. See id.
120. U.N. Office of the High Comm’r for Human Rights, supra note 116.
1290 FORDHAM INTERNATIONAL LAW JOURNAL
products or services by their business relationships, even if
they have not contributed to those impacts. (Emphasis added)122
Principle no 23 states:
In all contexts, business enterprises should: (a) Comply with all
applicable laws and respect internationally recognized human
rights, wherever they operate; (b) Seek ways to honor the
principles of internationally recognized human rights when faced
with conflicting requirements; (c) Treat the risk of causing or
contributing to gross human rights abuses as a legal compliance
issue wherever they operate.123
Taken together, these principles clearly enunciate the idea that
business enterprises have human rights responsibilities. These
responsibilities not only commit them to carrying out what is termed
“human rights due diligence” to ensure that their responsibilities are
not violated. 124 They also mean that operating in a legal system that
contravenes human rights principles, the business enterprise is not
neutral; it must “seek ways to honor” human rights principles. The
failure to honor these responsibilities may result in specific legal
liabilities, as the introduction of tort law rules connecting to the UNGP
in France well illustrates.125
If transnational law firms may have been unaware that they could
not simply do business in China as if there were just a few, minor,
technical variations on legal practice that needed to be taken into
account, recent developments and discussions ought to have put them
on notice. As this article has sought to show, China’s legal system is
fundamentally incompatible with rule of law principles adhered to by
the legal profession in the UK and in other jurisdictions organized on
liberal principles. In the former, lawyers, law firms and the lawyers’
associations are expected to work in the service of a repressive
PartyState. In the latter, lawyers’ primary obligations are to law; and they
are obligated to act in the best interest of their clients. Their
independence is crucial; it is one of the principles that help protect
122. Id. at 14.
123. Id. at 25.
124. Id. at 5; see Ruggie, supra note 116.
125. See id.
those who might otherwise become defenseless against predatory
practices of the state, or of the market.
As the illiberal – or indeed, antiliberal – Chinese legal system
systematically undermines lawyers’ independence and submits them to
a thoroughly compromising system of regulation and oversight, it is
important that liberal systems whose legal professions increasingly
operate transnationally not neglect the ordering of the terms of their
lawyers’ operations abroad. Of course, it is in a sense up to a host
country, such as China, to set rules governing the foreign legal
profession. But this does not absolve the countries from whose
jurisdictions foreign lawyers come to China of the responsibility to
insist that the host country honor its international commitments, and to
create guidance for overseas legal practice compliant with basic rule of
law principles. The 2013 Overseas Rules well illustrate that in the
United Kingdom, this transnational responsibility has been recognized
in principle. The question is, how is adherence to these standards
ensured? Are problems with adherence addressed case by case? Do
regulatory authorities in liberal jurisdictions engage with the more
principled incompatibility issues such as those set out just above, and
do they provide guidance on these to their lawyers? What regulatory
mechanisms are in place to audit or investigate compliance with these
standards on the part of transnational law firms operating abroad?
Based on the analysis presented in this article, it is clear that law
firms operating in China ought to conduct robust ‘human rights due
diligence’ to ensure compliance with the UN Guiding Principles, and
that regulatory bodies in other countries, such as the England and
Wales Solicitors’ Regulation Authority, provide guidance on the
compatibility of their 2013 Overseas Rules with China’s restrictive
regulation and practices of extra-legal control of the legal profession.
Beyond these immediate responsibilities, it would also be desirable that
democratic parliaments scrutinise the effectiveness of the regulation of
domestic lawyers overseas practice, and their governments’ efforts,
through government level interaction, to ensure that these lawyers are
able to adhere to the professional standards they are bound to uphold,
also when working in China.126
126. In the context of a UK Parliamentary Inquiry concluded in January 2017, the author
produced a submission for the NGO “Global Legal Action Network” (“GLAN”) that set out
some of the concerns discussed in this Article. The submission was published on the parliament
website but there was no further response or engagement with the submission. See Eva Pils,
Written Evidence From the Global Legal Action Network, DATA.PARLIAMENT.UK (Jan. 2017),
1. Anne Henochowitz , Minitrue: Man dies in Beijing Police Custody, CHINA DIGITAL TIMES (May 10 , 2016 , 6 :19 PM), https://chinadigitaltimes.net/ 2016 /05/minitrue-beijing-mandies-police-custody/ [https://perma.cc/3FGJ-PV4B] ; Li Fangping , 大成律所历来不办类似案 件， 难道官方委托或指定除外？, WEIBO (June 28 , 2016 ) http://www.weibo.com/17868226 05/ DCibt6ZYI?type=comment#_rnd1467451531408 [screenshot of broken link on file with author] (discussing this case).
2. Samuel Wade , Lei Yang Case Closure Stirs Discontent, CHINA DIGITAL TIMES, (Dec. 29 , 2016 , 12 :06 AM), https://chinadigitaltimes.net/ 2016 /12/lei-yang -case-closure- relatedcensorship- stir-discontent/ [https://perma.cc/S78R-J9MD].
6. Dentons accused of conflict of interest over Chinese corpse , ROLLONFRIDAY (July 8 , 2016 ), http://www.rollonfriday.com/TheNews/EuropeNews/tabid/58/Id/4660/fromTab/58/ currentIndex/58/Default.aspx [https://perma.cc/NU6S-XVW8].
7. Terence C. Halliday et al., Introduction-The Legal Complex in Struggles for Political Liberalism, in FIGHTING FOR POLITICAL FREEDOM: COMPARATIVE STUDIES OF THE LEGAL COMPLEX AND POLITICAL LIBERALISM 1-42 (Terence C. Halliday , Lucien Karpik, Malcolm M. Feeley eds., 2007 ).
8. Thomas E. Kellogg , Western Funding for Rule of Law Initiatives in China: the importance of a civil society based approach , 2012 CHINA PERSP . 3 , 53 - 59 .
9. See, e.g., Holly McKenzie , Meeting with the China Law Society , THE L. SOC'Y (Nov . 8, 2017 , 4 :39 PM), http://communities.lawsociety.org.uk/international/regions/north-asia -andthe-pacific/china/meeting-with-the- china- law-society/5063447.fullarticle [https://perma.cc/6P KV-BWY5] (reporting on discussions about opening up markets in second tier Chinese cities ).
10. See Open Letter from Kirsty Brimelow QC, Chair, Bar Human Rights Comm . of Eng. and Wales to Xi Jinping, President of China (July 17 , 2015 ) http://www.barhumanrights.org. uk/wp-content/uploads/2015/10/china-activists.pdf [https://perma.cc/CQL9-D9E7] ; see also An Open Letter by Legal Professionals To President Xi Jinping On the Occasion of the anniversary of the 709 Crackdown, CHINA HUM . RTS. LAW . CONCERN GROUP ( July 15 , 2016 ), http://www.chrlawyers.hk/en/content/open-letter -legal-professionals-president-xijinping-occasion- anniversary- 709-crackdown [https://perma.cc/34KS-GX3E] [hereinafter Open Letter to President Xi Jinping] .
11. See Open Letter from Kirsty Brimelow QC , supra note 10; Open Letter to President Xi Jinping, supra note 10.
12. See infra note 37.
13. See EVA PILS , CHINA'S HUMAN RIGHTS LAWYERS: ADVOCACY AND RESISTANCE 146- 88 ( 2014 ) ; see also 中华人民共和国律师法 [People's Republic of China Law on Lawyers] (promulgated by the Standing Comm . Nat'l People's Cong ., Oct. 28 , 2007 , effective June 1, 2008 ) (for the Chinese text , see http://www.gov.cn/flfg/2007- 10/28/content_788495.htm [https://perma.cc/57WD-BS3A] ) (for an English translation, see National People's Congress of the People's of China, Law of the People's Republic of China on Lawyers ( 2007 ), http://www.npc.gov.cn/englishnpc/Law/2009-02/20/content_1471604.htm [https://perma.cc/4QT2-B2CB]).
14. PILS, supra note 13.
15. Id .
16. Yanhua Deng & Kevin O'Brien , Relational Repression in China: Using Social Ties to Demobilize Protesters, 215 CHINA Q . 533 , 533 - 52 ( 2013 ).
17. Joshua Rosenzweig , New Pledge of Allegiance for Chinese Lawyers , SIWEILUOZI'S BLOG ( Mar . 21, 2012 ), http://www.siweiluozi.net/ 2012 /03/new-pledge -of-allegiance-forchinese .html [https://perma.cc/5MQD-ZVEF].
18. 律师职业道德基本准则 [ Basic Principles of Lawyer's Professional Ethics], ALL CHINA LAW . ASS'N (June 2 , 2015 ), http://www.dffyw.com/faguixiazai/ssf/201506/38582.html [https://perma.cc/U597-3KVH].
19. 党的领导和社会主义法治是一致的，社会主义法治必须坚持党的领导，党的领 导必须依靠社会主义法治, translated by China Law Translate, CCP Central Committee decision concerning several major issues in comprehensively advancing governance according to law , CHINA L. TRANSLATE (Oct. 28 , 2014 ), http://chinalawtranslate.com/fourth-plenum-
26 . See , e.g., CHINA HUM. RTS. LAW . CONCERN GROUP, http://www.chrlawyers.hk/ en/content/%E9% A6%96%E9%A0%81 [https://perma.cc/SG5V-H9FQ]. Further examples are discussed in Pils, Chapter 5, which also discusses the problematic regulations requiring lawyers to submit information on their handling of 'sensitive' cases to the authorities .
27. Teng Biao , The Political Meaning of the Crime of “Subverting State Power, translated in LIU XIAOBO, CHARTER 08 AND CHALLENGES OF POLITICAL REFORM IN CHINA (Hong Kong University Press, 2012 ).
28. # 21 2011 - 2 30. In Chinese characters, 动摇它的合法性.
29. Criminal Law of the People's Republic of China (promulgated by the Nat'l People's Cong. , July 1 , 1979 , amended Feb. 25 , 2011 , effective Mar. 1 , 2011 ), art. 306 .
Article 307 CL addresses non-lawyers and stipulates different rules for charges against them, creating bias. See Criminal Law of the People's Republic of China, CONG.-EXECUTIVE COMMISSION ON CHINA , http://www.cecc.gov/resources/legal-provisions/ criminal-law-of-thepeoples-republic-of-china [https://perma .cc/48EX-L9AT] (last visited Dec . 25 , 2013 ).
30. Ng Tze-wei, Until clause goes, defense lawyers are just decoration, SOUTH CHINA MORNING POST (July 7, 2011 ), http://www.scmp.com/article/972741/until-clause -goesdefence-lawyers-are-just-decoration [https://perma .cc/9A9P-9CMZ] (“An All China Lawyers' Association officer, who asked not to be named, said in the 10 years after the clause was introduced in 1997, at least 200 lawyers had been detained under clause 306 . At least half were proven innocent or not prosecuted, but those convicted faced jail terms and were disbarred for life .”); Mao Lixin (毛立新), '律师伪证罪的追诉程序探析 [Analysis of the handling of crimes of falsification of evidence by lawyers] (Aug . 30, 2011 ), http://blog.sina. com.cn/s/blog_4e7afe890102dssf.html [https://perma.cc/7YQB-T92U] ; Ran Yanfei, When Chinese Criminal Defense Lawyers Become the Criminals, 32 FORDHAM INT'L L.J . 988 ( 2009 ).
31. See PILS , supra note 13 (discussing this process through 2013, which was the beginning of the Xi era ).
32. Eva Pils , The Party and the Law , in HANDBOOK ON THE CHINESE COMMUNIST PARTY 248 , 248 - 65 ( 2018 ).
33. Id .
34 . Jerome A. Cohen , Xi Jinping amends China's Constitution, JEROME A . COHEN: JERRY'S BLOG , ( Mar . 8, 2018 ), http://www.jeromecohen.net/jerrys-blog/ 2018 /3/8/xi-jinpingamends - chinas-constitution [https://perma.cc/FD8B-GHR5].
35 . See generally Bjoern Ahl, The Politicization of the Chinese National Judicial Examination , 2007 - 2012 , 44 MODERN CHINA 208 ( 2017 ).
36. China Law Translate, People's Republic of China Criminal Law (amended 2015 ), http://chinalawtranslate.com/% e4%b8%ad%e5%8d%8e%e4%ba%ba%e6%b0%91%e5%85% b1%e5%92%8c%e5%9b%bd%e5%88%91%e6%b3%95%ef%bc%882015%e5%b9%b4% e4% bf%ae%e6%ad%a3%ef%bc%89/?lang=en (last visited May 31, 2018 ) [link broken].
37. 律师事务所管理办法 [Regulation on the Management of Law Firms] (promulgated by edict 133/2016 of the Ministry of Justice on Sept . 6 , 2016 ), http://www.gov.cn/gongbao/content/2016/content_5109321.htm [https://perma.cc/6UWYU3LF].
38. Id .
39. Li Ling , The Chinese Communist Party and People's Courts: Judicial dependence in China, 64 AM . J. COMP. L. 4 ( 2016 ).
40 . EVA PILS , CHINA'S HUMAN RIGHTS LAWYERS: ADVOCACY AND RESISTANCE ( 2014 ) 189 - 231 .
41. Id .
42. Id .
43. Id .
44. Stephen McDonnell , The Chinese lawyer who had his clothes ripped off in court, BBC NEWS: CHINA BLOG, (June 7, 2016 ), http://www.bbc.co.uk/news/blogs-china-blog- 36466485 [https://perma.cc/5KZF-U7W8]. The article contains a picture of Lawyer Wu wearing the remnants of his suit with his bare leg and underpants showing .
45. Li Jiayu , Mob storms into hotel, beats up two defense lawyers , GLOBAL TIMES, (July 20 , 2011 ), http://www.globaltimes.cn/content/666978.shtml [https://perma.cc/3BMK-J7JU].
46. Social media post, on file with the Author .
47. See PILS , supra note 40.
48. Eva Pils , Asking the Tiger for His Skin: Rights Activism in China, 30 FORDHAM INT'L L.J. , 1209 - 87 ( 2006 )
49. Gao Zhisheng (高智晟), Dark Night, Dark Hood, and Kidnapping by Dark Mafia - (my account of more than 50 days of torture in 2007 ), SINA (Mar. 10 , 2009 , 12 :07 AM), http://blog.sina.com.tw/64777/article.php?pbgid=64777&entryid=595609&comopen=1&track open=1 [https://perma.cc/A9NE-DN63].
50. Wang Yu , The Nightmare - An Excerpt of Lawyer Wang Yu's account of 709 detention and Torture , CHINA CHANGE (Nov. 13 , 2017 ), https://chinachange.org/ 2017 /11/13/thenightmare -an-excerpt-of-lawyer-wang-yus-account-of-709- detention- and-torture/ [https://perma.cc/X57C-2JMM].
51. A Year On China's Crackdown On Human Rights Lawyers , AMNESTY INT'L (June 22 , 2015 ), https://www.amnesty.org/en/latest/campaigns/2016/07/one -year-since-chinas-crack down-on-human-rights-lawyers/ [https://perma.cc/6JPG-X9RY].
52. Fu Hualing , The July 9th (709) Crackdown on Human Rights Lawyers: Legal Advocacy in an Authoritarian State, 112 J. CONTEMP. CHINA 554 ( 2018 ) ; Eva Pils, China's turn to public repression: the case of the 709 Crackdown on human rights lawyers, 3 CHINA L . SOC'Y REV . 1 , 1 - 47 (forthcoming 2018 ).
53. China human rights: Wife marches for 'vanished' husband , BBC NEWS (Apr. 4 , 2018 ), http://www.bbc.co.uk/news/world-asia-china- 43644599 [https://perma.cc/B8GA-XU7K].
54. Wang Qiaoling , Chinese Rights Lawyer Li Chunfu Mentally Disturbed and Physically Ruined After Abuse in Custody , CHINA CHANGE (Jan. 13 , 2017 ), https://chinachange.org/ 2017 /01/13/chinese-rights -lawyer-li-chunfu-mentally-disturbed-and-physically-ruined-afterabuse-in-custody/ [https://perma.cc/6HEP-CG56].
55. Xie Yang & Chen Jiangang, Transcript of Interviews with Lawyer Xie Yang (3) - Dangling Chair, Beating, Threatening Lives of Loved Ones, and Framing Others , CHINA CHANGE (Jan. 21 , 2017 ), https://chinachange.org/ 2017 /01/21/transcript-of -interviews-withlawyer-xie-yang-3-dangling-chair-beating-threatening-lives-of-loved-ones-and-framingothers/?.
56. Eva Pils , A new torture in China , ASIA DIALOGUE (Aug. 10 , 2017 ), https://cpianalysis. org/ 2017 /08/10/a-new-torture-in-china/ [https://perma.cc/4DLJ-4KBJ].
57. Wang Yu , 王宇、包龙军：致敬！“ 709 ” 案辩护人 [Wang Yu , Bao Longjun: Saluting the “ 709 ” criminal defenders!], BOTAN WEB ( July 12 , 2017 ), https://botanwang.com/ articles/201707/% E7%8E%8B%E5%AE%87%E6%9B%9D%E5%85%89%E9%85%B7%E5 %88%91%E3%80%80%E6%84% 9F%E8%B0%A2%E5%85%B3%E6%B3%A8%E4%BF%8 3%E5%A4%84%E5%A2%83%E6%94%B9%E5%96%84 .html [https://perma.cc/V9NWEA7X].
58. See Pils supra, note 56 .
59. Namely , the American Bar Association and the Ludovic Trarieux Human Rights Prize Committee. Chinachange James Podgers, Chinese lawyer Wang Yu given ABA International Human Rights Award in absentia , ABA JOURNAL , 6 ( Aug . 6, 2016 ), http://www.abajournal.com/news/article/chinese_lawyer_ wang_yu_given_inaugural_aba_inter national_human_rights_award; The XXIst Ludovic Trarieux International Human Rights Prize 2016 , LUDOVIC TRARIEUX , http://www.ludovictrarieux.org/uk-page3. callplt2016 .htm; China Change, “ My son is everything to me:” how China forced lawyer Wang Yu to denounce her human rights award, H.K . FREE PRESS (May 13, 2018 ), https://www.hongkongfp.com/ 2018 / 05/13/son-everything -china-forced-lawyer-wang-yu-denounce-human-rights-award/.
60. Esteemed Presiding Judge, judges, state prosecutors and my two esteemed defense lawyers: you have all been put to so much trouble! Through todays trial, I have come to realize fully what crimes I have committed, and the harm my actions have caused to the Party and the Government. I hereby express my deepest repentance toward our government! [Bows.] I trust that a trial so replete with fairness and justice and the rule of law as this will result in a fair verdict, and that it shall stand the test of history and legal scrutiny. I admit guilt and repent, admit guilt and subject myself to the law; and I will never appeal!. . . . I thank the court! I thank the prosecutor! I thank my lawyers! See Annotated Excerpts from Hu Shigen and Zhou Shifeng's Trial Transcripts, HUM . RTS IN CHINA (Aug. 12 , 2016 ), http://www.hrichina.org/en/annotated-excerpts -hu-shigen-and-zhoushifengs-trial-transcripts [https://perma .cc/XDS2-NT98]. See also Vivienne Zeng, Human rights lawyers targeted in unprecedented crackdown , HONG KONG FREE PRESS (July 13 , 2015 ), https://www.hongkongfp.com/ 2015 /07/13/human -rights-lawyers-targeted-in-unprecedentedcrackdown/ [https://perma.cc/8PUF-LEDH]. Some commentators thought Zhou was intentionally ironic .
69. Jay Stanley , China's Nightmarish Citizen Scores Are a Warning For Americans , AM. C.L. UNION (Oct. 5 , 2015 ), https://www.aclu.org/blog/privacy-technology/consumerprivacy/chinas-nightmarish -citizen-scores-are-warning-americans?redirect=blog/free-future/ chinas-nightmarish-citizen-scores-are-warning-americans [https://perma .cc/97TY-JSZX].
70. Jun Mai , Justice fears over reform plans to rank China's lawyers, SOUTH CHINA MORNING POST (Nov . 19, 2015 ), http://www.scmp.com/news/china/policies-politics/article/ 1880166/plan-chinese -lawyers-be-ranked-sparks-fears-over [ https://perma .cc/47RN-DVJP].
71. See PILS , supra note 13.
72. See PILS , supra note 40.
77. Regulations on Administration of Foreign Law Firms' Representative Offices in China (promulgated by State Council of the People's Republic of China on Dec . 22 , 2001 , effective Jan. 1 , 2002 ), art. 3 [hereinafter the Representative Office Regulation] .
78 . Ministry of Justice, ' 律 师 和 律 师 事 务 所 违 法 行 为 处 罚 办 法 [Measures for Punishment of Unlawful Acts by Lawyers and Law Firms] (promulgated on April 8 , 2010 , effective June 1, 2010 ), MINISTRY OF JUST. OF THE PEOPLE'S REPUBLIC OF CHINA (Apr . 10, 2010 ), http://www.moj.gov.cn/government_public/content/2010-04/10/fggz_6422.html [https ://perma.cc/9PVJ-VJ3K].
79. Representative Office Regulation, art. 24 .
80. Id .
81. Article 15 of the Representative Office Regulation lists the activities they are allowed to engage in, explicitly excepting “Chinese law services Zhongguo falü shiwu . ” Id. art. 15.
82. On detailed questions, see , e.g., Andrew Godwin , The Professional ' Tug of War': The Regulation of Foreign Lawyers in China, Business Scope Issues and Some Suggestions for Reform, 33 MELB U .L. REV. 132 ( 2009 ).
83. Anonymous conversation # 400 - 17 -1.
83. In accordance with Article 26 (1) of the Representative Office Regulation, see Representative Office Regulation , supra note 77 , art. 26 ( 1 ).
85. Anonymous conversation # 400 - 16 -1.
86. Whether the current restrictions imposed on foreign lawyers and law firms in a legal services market perspective are in compliance with China's international obligations, in particular under World Trade Organization (“WTO”) rules, has been a matter of debate for some time. After China's accession to the WTO, some argued that the WTO presented challenges to the domestic legal services market, and that China was deviating from its WTO commitments. See Jane Heller, China's New Foreign Law Firm Regulations: A Step in the Wrong Direction, 12 PAC . RIM. L & POL'Y J . 751 , 765 ( 2003 ) ; see also Rachel E . Stern & Su Li , The Outpost Office: How International Law Firms Approach the China Market , 41 L. & SOCIAL INQUIRY 184 ( 2016 ). The focus of the present discussion is not on restrictions of the legal services market as such but, rather, on the effects existing restrictions have on the autonomy of the legal profession .
87. Anna Zhang , Will More Law Firms Look to Joint Ventures For China Business? , ALM (Oct. 24 , 2016 ), http://www.law.com/sites/almstaff/2016/10/24/will-more -law-firms-look-tojoint-ventures-for-china-business/?kw= Will%20More%20Law%20Firms%20Look%20to%20 Joint%20Ventures%20For%20China%20Business?&et=editorial&bu=International&cn=2016 1024&src=EMC-Email&pt=Asian%20Lawyer%20News&pc=ASLNALERT&slreturn=2016 0926100151 [https://perma.cc/3EVU-D9Z2].
88. A representative example for this sort of merger is that of Dentons and Dacheng. The firm in China now uses both names ( 大 成 ) . See DENTONS DACHENG , https://www.dentons.com/zh [https://perma.cc/5UFH-6G2U] (last visited June 3, 2018 ).
89. A verein is an association of independent legal entities for specifically defined purposes - generally, marketing and branding in nature. Financial separation and local entity independence of control for each verein member law firm is confirmed in the verein's governing documents, and reaffirmed in dedicated disclaimer and notice sections prominently featured on the website of every verein member, along with the important note that the verein itself does not practice law anywhere .
See Edwin B. Reeser & Martin J. Foley , Are verein-style law firms ignoring the fee-splitting ethics rules? , ABA J. (Oct. 1 , 2013 ), http://www.abajournal.com/legalrebels/article/are_vereinstyle_law_firms_ignoring_fee-splitting_ethics_rules/ [https://perma.cc/8HRN-GPK2].
97. Anonymous conversation # 401 - 16 -1.
98. Id .
99. Yongxi Chen & Anne S.Y. Cheung , The Transparent Self Under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System, 12 J. COMP . L. 356 , 357 ( 2017 ).
100. Id . at 366- 71
101 . See Maya Wang , China's Dystopian Push to Revolutionize Surveillance, THE WASHINGTON POST (Aug . 18, 2017 ), https://www.washingtonpost.com/news/democracypost/wp/2017/08/18/chinas-dystopian -push-to-revolutionize-surveillance/?noredirect=on&utm _term= . 29fadb8f24b0 .
102 . See KING & WOOD MALLESONS , http://www.kwm.com/en/cn [https://perma.cc/ F8R5-ZLD5].
103. Lüxinshe (律新社), 献礼十九大！上海哪 33 家律所的党建工作走在了前列？ [Tribute to the Nineteenth [Party Congress]! Which 33 Shanghai Law Firms are at the Forefront of Party-Building Work?] , (Oct. 19 , 2017 ), http://www.lvxinweb.cn/detail.aspx?wid=35&aid= 6135&openid=loseopenid [https://perma.cc/PR8P-6W7B].
103. CCP Central Committee Decision concerning Several Major Issues in Comprehensively Advancing Governance According to Law , CHINA L. TRANSLATE (Oct. 28 , 2014 ), http://chinalawtranslate.com/fourth-plenum-decision/?lang=en [https://perma.cc/9S5E7F3T].
105. One such case affected a German businessman residing in China. See Kunstspediteur darf Deutschland wieder verlassen , Sueddeutsche Zeitung , (May 21, 2013 ), http://www.sueddeutsche.de/panorama/inhaftierter-nils -jennrich-deutscher-kunstspediteurdarf-china- verlassen-1 .1677561 [https://perma.cc/T8RW-U6LC].
106. Yu Lujuan & Zheng Weihong (于禄娟 郑伟红) , 民事纠纷刑事化的根源及对策 [Root causes and responses to the practice of turning private conflicts into criminal cases] , PEOPLE'S TRIBUNE , ( Jan . 11, 2013 ), http://paper.people.com.cn/rmlt/html/2013-01/11/content_ 1195145.htm?div=-1 [https://perma.cc/B567-C5WK].
107 . For a somewhat conservative analysis illustrating that the problem is widely recognized, see Yu Lujuan & Zheng Weihong (于禄娟 , 郑伟红), 民事纠纷刑事化的根源及对 策 [ Turning private conflicts into criminal ones - causes and ways of tackling the issue] , PEOPLE'S TRIBUNE (Nov. 1 , 2013 ), http://paper.people.com.cn/rmlt/html/2013-01/11/content_ 1195145.htm?div=-1 [https://perma.cc/RSB9-PNB6] ; see also Xu Xin (徐昕), '在刑事法庭解 决民事纠纷，是法治的灾难 [Resolving civil disputes through criminal litigation is a disaster for the rule of] , SOHU (Nov. 15 , 2017 ), http://www.sohu.com/a/204495601_570256 [https://perma.cc/BUG4-JA2B].
108 . See JMSC HKU , Interview on “Ningyuan Shuanggui”by Pu Zhiqiang (English Subtitles) , VIMEO (Aug. 21 , 2014 ), https://vimeo.com/104070378 [https://perma.cc/882ZD94Y]; see also Tom Phillips, Pu Zhiqiang given three-year suspended sentence , THE GUARDIAN (Dec. 22 , 2015 ), https://www.theguardian.com/world/2015/dec/22/pu-zhiqiangchinese -human-rights-lawyer-sentenced-to-three-years [https://perma .cc/3SVJ-T3PH].
109. See Henochowitz, supra note 1; Fangping, supra note 1.
110. See supra Part II (discussing the control of the legal profession ).