The New-Breed, “Die-Hard” Chinese Lawyer: A Comparison with American Civil Rights Cause Lawyers

Washington and Lee Journal of Civil Rights and Social Justice, Mar 2019

In times of social upheaval, lawyers can mark the way toward social change. In particular, when lawyers become more aggressive than traditional lawyers in the cause of fighting injustice, they face backlash from multiple sources, including government and their own profession. Such was the case during the U.S. civil rights movement. Unusually aggressive behavior by cause lawyers was met with hostility from their own profession and from government action. Those lawyers, while battered at times with physical violence, bar ethics charges, contempt of court, and state hostility, survived and changed social conditions at the same time they altered the culture of their own profession. Some have blamed them for the so-called civility crisis in the legal profession. A phenomenon with some, but not perfect parallels is happening in China. Activist human rights and criminal defense lawyers have undertaken tactics that are dramatically outside norms of behavior for Chinese lawyers and arguably in violation of law. In general, they face even harsher retribution than American civil rights lawyers did, although the small number of American lawyers who faced violence and near-death in racially-motivated violence could have faced no harsher retaliation. The parallels, while far from completely matching the two circumstances, are worth exploring and considering as the world watches developments in the Chinese justice system.

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https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1464&context=crsj

The New-Breed, “Die-Hard” Chinese Lawyer: A Comparison with American Civil Rights Cause Lawyers

Washington and Lee Journal of Civil Rights and Social Justice The N ew-Breed, ?Die-Hard? Chinese Lawyer: A Comparison with American Civil Rights Cause Lawyers James E. Moliterno 0 1 2 3 Recommended Citation 0 Thi s Article is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 1 Washington and Lee University School of Law , USA 2 James E. Moliterno and Rongjie Lan, Th e New-Breed, ?Die-Hard? Chinese Lawyer: A Comparison with American Civil Rights Cause Lawyers, 25 Wash. & Lee J. Civ. Rts. & Soc. Just. 99 (). Available at: https://scholarlycommons.law.wlu.edu/crsj/vol25/iss1/6 3 Southwestern University of Finance & Economics , Chengdu China Part of the Civil Rights and Discrimination Commons; Comparative and Foreign Law James Moliterno* Lan Rongjie** In times of social upheaval, lawyers can mark the way toward social change. In particular, when lawyers become more aggressive than traditional lawyers in the cause of fighting injustice, they face backlash from multiple sources, including government and their own profession. Such was the case during the U.S. civil rights movement. Unusually aggressive behavior by cause lawyers was met with hostility from their own profession and from government action. Those lawyers, while battered at times with physical violence, bar ethics charges, contempt of court, and state hostility, survived and changed social conditions at the same time they altered the culture of their own profession. Some have blamed them for the so-called civility crisis in the legal profession. A phenomenon with some, but not perfect parallels is happening in China. Activist human rights and criminal defense lawyers have undertaken tactics that are dramatically outside norms of behavior for Chinese lawyers and arguably in violation of law. In general, they face even harsher retribution than American civil rights lawyers did, although the small number of American lawyers who faced violence and near-death in racially-motivated violence could have faced no harsher retaliation. The parallels, while far from completely matching the two circumstances, are worth exploring and considering as the world watches developments in the Chinese justice system. * Vincent Bradford Professor of Law, Washington & Lee University. ** Lan Rongjie, Southwestern University of Finance & Economics, Chengdu China. Many thanks for excellent research assistance from Zherong Kang, a Washington and Lee student. I. Introduction .....................................................................100 II. Who or What Is the ?Die-Hard? Chinese Lawyer?..........105 I. Introduction A new breed of lawyer is practicing criminal defense in China.1 Dubbed the ?die-hard lawyer? by the press, but sometimes self-eschewing the label, these new lawyers say they are simply representing their clients zealously, advancing their interests by whatever legitimate means are at hand.2 What is being said of them in the press?3 What do they say about themselves?4 How do they compare with the American civil rights era cause lawyer?5 Both groups of lawyers have been derided by the traditional elements of their professions; members of both groups were occasionally incarcerated by the government; both groups used previously unused, aggressive methods to challenge the status quo.6 The aggressive lawyering of the civil rights era cause lawyer eventually became one of several accepted ways of lawyering in the U.S.7 The long-term effects of developments in China remain to be seen.8 But there is no question of the stir that has been created by the die-hard lawyer.9 Like that of the American civil rights era cause lawyer, it is a stir that is being felt at the highest levels of government and established power structures.10 3. See id. (noting that these lawyers are being talked about in the press). 4. Interview by Professor James Moliterno with two of the more prominent new breed of Chinese lawyers (July 2014). 5. See infra Section IV (comparing the Chinese die-hard lawyers with U.S. civil rights cause lawyers). 6. See Teng Biao, Opinion, Chinese Human Rights Lawyers Under Assault, WASH. POST (July 25, 2009), http://www.washingtonpost.com/wpdyn/content/article/2009/07/24/AR2009072402940.html (describing the emergence of Chinese human rights lawyers, their motivations, and the consequences they face for their insistence on the rule of law) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). See generally VOICES OF CIVIL RIGHTS LAWYERS: REFLECTIONS FROM THE DEEP SOUTH, 1964?1980 (Kent Spriggs ed., 2017) [hereinafter VOICES OF CIVIL RIGHTS LAWYERS] (recounting the professional development of civil rights lawyers, the various causes they pursued, the consequences they faced, as well as the historical context of civil rights litigation, in the 1960s). 7. See generally ALAN W. HOUSEMAN & LINDA E. PERLE, SECURING EQUAL JUSTICE FOR ALL: A BRIEF HISTORY OF CIVIL LEGAL ASSISTANCE IN THE UNITED STATES (rev. ed., 2007) (describing the efforts and impact of legal aid lawyers, a ?new breed of lawyers,? during the twentieth century). 8. See Olesen, supra note 1 (discussing the new phenomenon created by the lawyers in China and the uncertain long-term effects). 9. See id. (referring to an article in a Communist Party journal that complained that die-hard lawyers, ?a ?poisonous cancer? on society,? were ?disrupting social order and undermining public safety?). 10. See id. (?The Chinese government is clearly worried about the so-called diehards? impact, and is moving to trim it . . . responding with an ?increasingly repressive policy? that is trying to rein in the legal profession.?). Perhaps it seems exaggerated to compare the torture of Chinese human rights lawyers to the hardships of U.S. civil rights lawyers. This is a fair point, and to be sure, we do not suggest the situations are precisely the same. We mean only to compare two core aspects of the two sets of mistreatment that are strikingly similar. Both groups of lawyers have ?committed? the same core offense: They are disrupting deeply-entrenched, well-guarded social orders and power structures, and both groups of lawyers are engaging in lawyering conduct that disturbs the norms of traditional lawyer conduct. In these two ways, ways we suggest are significant, the two groups of lawyers have parallel experiences and potential impacts. In this article, we will both compare and contrast the two sets of lawyers. Although the torture, ?disappearance,? and risk endured by aggressive Chinese lawyers undoubtedly outstrips the day-to-day life risks endured by U.S. civil rights lawyers, it bears remembering the fervor and passion with which authorities, especially but not exclusively in the South, endeavored to protect the continued forms of slavery and white supremacy that continued to thrive in the 1940s?1970s (and in some ways until the present).11 Intent on maintaining a legal system of white supremacy, authorities abandoned all sense of humanity when dealing with the most audacious and the most successful civil rights lawyers.12 While some such lawyers were run off, some were physically beaten, and a few were bombing and lynching targets.13 The ferocity of treatment by authorities was sometimes cloaked in the surface civility of a judge?s ruling against an out of state lawyer?s pro hac vice motion, and was sometimes as raw as attempted murder by local law enforcement and the local citizens that the authorities tolerated and with whom they sometimes conspired.14 11. Compare infra Part II (describing the harsh treatment of criminal defense and human rights lawyers in China), with infra Part IV (describing the treatment of U.S. civil rights lawyers). 12. See infra Part IV (describing the treatment of U.S. civil rights lawyers). 13. See infra Part IV (describing the unfortunate consequence of being a civil rights lawyer). 14. See infra Part IV (discussing how the effort against civil rights lawyers When they were charged with a crime, the criminal charge of choice against civil rights lawyers was practicing law without a license or various forms of professional misconduct such as barratry.15 These were lawyers, properly licensed in their home states in the North, to be sure, but they were charged with practicing without a Mississippi or Louisiana or Georgia law license.16 Then, as now, it is common practice for a lawyer to be temporarily out of his home state representing a client in a state where he lacks a license.17 The common practice in litigation settings is to associate with a local lawyer and ask the local court?s permission to represent the lawyer?s client pro hac vice.18 Such requests are routinely granted, although there is no due process right to be heard on such a request and it can be denied without any cause.19 These requests are a normal part of interstate practice, and are rarely denied except when a local judge has some active dispute with the lawyer or the client.20 For civil rights was typically local). 15. See VOICES OF CIVIL RIGHTS LAWYERS, supra note 6, at 167?95 (detailing the arrests of John C. Brittain, Armand Derfner, and Richard Sobol for practicing without a license); see also NAACP v. Button, 371 U.S. 415, 445 (1963) (Douglas, J., concurring) (?Arkansas, Georgia, Mississippi, South Carolina, and Tennessee passed laws following our 1954 decision [in Brown v. Board of Education,] which brought within their barratry statutes attorneys paid by an organization such as the N.A.A.C.P and representing litigants without charge.?). Virginia later joined the ranks of those states by enacting similar laws in 1956. NAACP, 371 U.S. at 445. 16. See VOICES OF CIVIL RIGHTS LAWYERS, supra note 6, at 167?95 (explaining that these lawyers were in good standing in their home states). 17. See Leis v. Flynt, 439 U.S. 438, 451 (1979) (Stevens, J., dissenting) (?[A]ppearances by out-of-state counsel have been routine throughout the country . . . .?). 18. See MODEL RULE ON PRO HAC VICE ADMISSION (AM. BAR ASS?N 2016 ) (providing the current procedure for pro hac vice admission). 19. See Leis, 439 U.S. at 442 (finding that because the right of an out-of-state lawyer to appear pro hac vice is not a ?cognizable property interest? protected by the Fourteenth Amendment, the Constitution does not obligate state courts to provide procedural due process to lawyers applying for pro hac vice admission). 20. See id. at 451 (Stevens, J., dissenting) (?The custom is so well recognized that . . . there ?is not the slightest reason to suppose that a qualified lawyer?s pro hac vice request will be denied.?? (quoting Spanos v. Skouras Theatres Corp., 364 F.2d 161, 168 (2d. Cir. 1966))). lawyers, that dispute was their disruption of social order and their challenge to entrenched power structures.21 In China, human rights lawyers are typically charged with disrupting public order, picking quarrels and causing trouble, or inciting state subversion.22 In reality, that is also what the U.S. civil rights lawyer was being charged with, but there was (and is) no U.S. law criminalizing such conduct. But unmistakably, the U.S. civil rights lawyer was under attack in the South for disrupting social order and causing trouble, and indeed, as in China, for threatening the status quo power structure. In the U.S., civil rights lawyers were subject to short jail terms, some beatings, a rifle in the mouth, car bombings, house bombings, and lynch mobs.23 In China, typically pursuant to the RSDL (Residential Surveillance at a Designated Location) statute,24 detained lawyers are subject to sleep deprivation, food deprivation, mental anguish on relatives and friends, denial of counsel, mental/emotional torture, and some physical beatings.25 Many such disappearances ended in forced confessions, broadcast on television and reported in the state print media.26 In both situations, massive state power was brought down on lawyers.27 One enormous difference: In the U.S., ultimately but often belatedly, federal authority was on side of civil rights lawyer.28 Not so in China. II. Who or What Is the ?Die-Hard? Chinese Lawyer? As groundwork for understanding the new breed of more aggressive Chinese lawyer, one must first recognize that Chinese Lawyers Law (the rough equivalent of laws on advocates in European countries or the rules of professional conduct adopted by each of the United States, usually by their state supreme courts) places State interests above those of clients.29 To be sure, Western lawyers must obey laws and balance their duties to clients with their positions as ?officers of the court.?30 But the understanding in China that the State comes first is made explicit by the Chinese Lawyers Law: ?Practice by lawyers shall be subject to supervision of the State, society and the parties concerned.?31 The foundational SCENES OF CHINA?S FORCED TELEVISED CONFESSIONS (Rachel Tyrell ed., 2018) [hereinafter SAFEGUARD DEFS., SCRIPTED AND STAGED] (analyzing forty-five forced confessions between 2013 and 2018). 27. See infra Section II (comparing the respective government responses to lawyer activism in contemporary China and in America during the civil rights movement). 28. See NAACP v. Button, 371 U.S. 415, 429 (1963) (holding that the activities of the NAACP, its affiliates and legal staff are modes of expression and association protected by the First and Fourteenth Amendments, which Virginia may not prohibit under its power to regulate the legal profession as improper solicitation of legal business). 29. See Zhonghua Renming Gongheguo L?shi Fa (??????????) [Lawyer Law of the People?s Republic of China] (promulgated by the Standing Comm. Nat?l People?s Cong., Sept. 1, 2017, effective Jan. 1, 2018) , P.R.C. Laws, 2018, art. 3. (?In legal practice, a lawyer shall subject himself to the supervision of the State, society and the parties concerned.?). 30. See MODEL RULES OF PROF?L CONDUCT Preamble (AM. BAR ASS?N 2018) (?A lawyer?s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.?). 31. See Zhonghua Renming Gongheguo L?shi Fa (??????????) [Lawyer Law of the People?s Republic of China], (promulgated by the Standing Comm. Nat?l People?s Cong., Sept. 1, 2017, effective Jan.1, 2018) , P.R.C. Laws, independence of lawyers in the United States is at least implicitly prohibited and replaced by a foundation of State supervision. III. Some History of Post-Revolutionary Chinese Lawyer Regulation 1949?2012 In 1949, the newly established People?s Republic of China abolished all of the laws under the old Republic of China government, under the spirit of ?contempt and criticize the counterrevolutionary law and regulation of the KMT,32 contempt and criticize Euro-American-Japanese capitalist anti-people law and regulations.?33 Beginning in 1950, China experimented with a new lawyer system, modeled after the Soviet system, which made lawyers part of the government employee.34 Under the strong ideology of class struggle, criminal defense lawyers were seen as defending bad people, which was an abandonment of class warfare.35 The initial lawyer system was discontinued during the 2018, art. 3. 32. Refers to Kuomintang, the Chinese Nationalist Party, which was defeated in the revolution. 33. Zhang Zhiming (???), Huimou he Zhanwang: Bainian Zhongguo L?shi de Fazhan Guiji (?????: ???????????) [Looking Back and Forward: Lawyer?s Development in China in the Past Century], Guojia Jianchaguan Xueyuan Xuebao (?????????) [Journal of National Prosecutors College] (2013 vol. 1); see Zhongyang Guanyu Feichu Guomindang Liufaquanshu he Queding Jiefangqu Sifa Yuanze de Zhishi (????????? ???????????????????) [The Party Central?s Guidance Regarding the Abolishment of KMT?s Six Codes and the Establishment of Judicial Principles of the Liberated Area], (Feb. 22, 1949) http://cpc.people.com.cn/GB/64184/64186/66650/4491574.html# (deriding the laws and policies of the KMT and calling for their abolition) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 34. Zhang, supra note 33 (describing the historic development of lawyer system in China). 35. See id. (describing the public opinion towards lawyers in China in the 1950s) . ?anti-rights movement? in 1957, when many lawyers were criticized as rightists, and some were sent to labor camps.36 During the Cultural Revolution (1966?1976), the legal system as a whole was abolished when the ?authoritarianism of the mass? replaced the police-prosecutor-court system.37 During this period, philosophically, there was no need for courts, judges, prosecutors, and defense lawyers.38 The public was encouraged to take matters of loyalty to the Party into their own hands and enforce these norms.39 The results included rampant mob confiscation and destruction of property belonging to ?landlords,? and the meting out of punishment for perceived offenses against the Chinese Communist Party (CCP or Party) in the name of the revolution. The Red Guards ruled. Formal justice administration by courts and their officers was superfluous. The lawyer system was reinstated in 1978 when China ended the Cultural Revolution and was on its way toward the Reform and Opening Up.40 In April 1979, the National People?s Congress (NPC) set up a special team for drafting regulations on lawyers, and in July, the Criminal Procedural Law was passed and the lawyer?s participation in the legal system was officially established through this law.41 In August 1980, the NPC Standing Committee passed the Temporary Regulation on Lawyers.42 The reinstated lawyer system was similar to the one established in the 1950s in which lawyers were ?legal professionals 36. See id. (describing the impact of anti-rights movement on lawyers and the end of the lawyer system in China). 37. See id. (describing the abandonment of the law during the Cultural Revolution). 38. See id. (explaining the incompatibility of the western lawyer system to the revolutionary China). 39. See id. (explaining that political ideology was more important than the law during the Cultural Revolution). 40. See id. (describing the reinstatement of the lawyer system in China). 41. See id. (explaining the legislative effort to reinstate the lawyer system in China). 42. Xiong Qiuhong (???), Xin Zhongguo L?shi Zhidu de Fazhan Licheng ji Zhanwang (???????????????) [Lawyer Development History and Expectations of the New China], Zhongguo Faxue (????) [China Legal Science] 15 (1999 Vol. 5). of the state.?43 All lawyers worked for the ?legal consultancy bureau (?????),? (later called Lawyer Affair?s Bureau (??? ??), which is the same word used by private law firms today) which was a government-organized nonprofit organization.44 Starting in 1988, the State Council (essentially the central government body) started to experiment with partnership models for law firms where the partners no longer worked for the government and the law firms were no longer in the government budget.45 This activity was one small part of this period?s general phenomenon in China of slightly opening the economic system while maintaining tight control over political processes.46 In this period, the Soviet Union first opened the political process, resulting in massive instability, collapse of the Union, its economy, and its control over its satellite states in Eastern and Central Europe. China followed largely an opposite path from that of the Soviet Union. These new experiments with private lawyering and partnerships were legalized in 1993 when State Council passed the Ministry of Justice Plan for Deepening Lawyer Reform (???? ????????????).47 NPC Standing Committee passed the PRC Lawyer?s Law (??????????) in May 1996,48 which defined lawyers as ?professionals that provide legal services to the society, who have obtained professional license according to law? (???????????????????????) instead of the ?legal professional of the state? (???????) in the old system.49 Lawyers became private practitioners instead of government employees.50 43. See Zhang, supra note 33 (comparing the lawyer system in the 1980s with 1950s) . 44. See id. (describing the public service nature of the lawyer in the 1980s) . 45. See Xiong, supra at 42 (describing the privatization of lawyers in China). 46. See id. (describing the privatization of the legal profession as part of the market economy reform). 47. See id. (describing the privatization of lawyers in China). 48. See id. at 15 (describing the privatization of lawyers in China). 49. See id. (describing the privatization of lawyers in China). 50. See id. at 16 (describing the privatization of lawyers in China). China?s Legal Reform 2012?2015 Since Xi Jinping took power as the General Secretary of the Chinese Communist Party in 2012, China has undergone significant legal reform.51 Revisions in criminal and administrative procedural laws seemed to allow lawyers to play a larger role in the legal process.52 A range of wrongful criminal convictions were overturned, many after decades, and received huge media attention as the success of the legal reform.53 Human rights lawyers and activists were at first encouraged by these reforms and many believed they signaled an opening up to a heightened role for lawyers in the justice system.54 Ironically, given later events, the apparent reforms during the early period of President Xi?s term may have emboldened human rights lawyers in a way that alarmed the Party.55 This alarm may have contributed to the 709 Crackdown.56 51. See China Focus: China Scores New Achievements in Judicial Protection of Human Rights, XINHUA (July 15, 2017, 9:52:28 PM), http://www.xinhuanet.com//english/2017-07/15/c_136446475.htm (identifying different areas of legal reform since 2012) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 52. See id. (detailing new or revised laws that protect lawyers? right of practice and rules criminal defense lawyers may use to exclude illegally obtained evidence). 53. See id. (indicating that certain judicial reform initiatives aimed at quelling the miscarriage of justice led to the overturning of wrongful convictions); see also infra Part II.A.2.c (describing some of the wrongful convictions that were overturned). 54. See XINHUA, supra note 51 (explaining how human rights lawyers were encouraged by the reforms). See id. (explaining how the reforms possibly emboldened human rights 56. July 9, 2015 marked a months-long sweep of more than 300 human rights lawyers, legal assistants, and activists. China: On ?709? Anniversary, Legal Crackdown Continues, HUM. RTS. WATCH (JULY 7, 2017 1:54 AM), https://www.hrw.org/news/2017/07/07/china-709-anniversary-legal-crackdowncontinues (on file with the Washington & Lee Journal of Civil Rights & Social Justice). Amendments in Legislation 1. Criminal Procedure Law The Criminal Procedure Law went through extensive revision in 2012, aiming to increase the role of trials, judges and lawyers, and thus rid the courts? reputation as rubber stamps for the state.57 The revision added five articles (articles 54?58) that purport to preclude the use of evidence obtained through torture.58 The new Criminal Procedure Law also encouraged the taking of witness testimony in the courtroom for the first time.59 In the past, witness testimonies were only presented to the court on paper and judges made decisions purely from the paperwork.60 Cross-examination of witnesses was rare.61 The newly revised Article 59 requires that witness testimony must be examined by both sides to be admitted.62 Newly added Articles 62 and 63 contemplated the protection and compensation for witnesses who appear in court.63 Newly added Articles 187 and 188 regulated what kind of witnesses must testify (in court) and compulsory attendance measures for witnesses who do not appear in court without adequate excuse.64 Revised Article 192 allowed expert witnesses to testify in trials for the first time.65 Starting from early 2017, the Supreme People?s Court (SPC) initiated a national campaign to ?substantialize criminal trials,? requiring participation of defense lawyers and live witnesses in more criminal trials.66 Together these revised articles and following reforms described a possible conversion from largely paper trials to trials dominated by live testimony.67 In practical application, despite the vast revisions and some increase in the use of live testimony, trials today are still largely based on paper.68 On paper, the revisions expanded the scope of the defense lawyers? participation throughout the criminal process.69 Article 36 was changed so that lawyers may ?participate? in the investigation stage, rather than ?assist,? as the old law allowed.70 Lawyers were also allowed to participate in the review of death penalty cases with the Supreme Court.71 An ambitious reform proposal recently 64. Id. ? 71. 65. Id. ? 72. 66. Sup. People?s Ct., Zuigao Renmin Fayuan Guanyu Quanmian Tuijin yi Shenpan wei Zhongxin de Xingshi Susong Zhidu Gaige de Shishi Yijian (???? ????????????????????????????) [Enforcement Opinion of the Supreme People?s Court on Carrying out Criminal Procedure Reforms Centered on Trials] (Feb. 17, 2017). 67. See supra notes 57?66 and accompanying text (noting how trial practice has changed). 68. See generally Zhuohao Wang, supra note 60. 69. See Sup. People?s Ct., Zuigao Renmin Fayuan Guanyu Quanmian Tuijin yi Shenpan wei Zhongxin de Xingshi Susong Zhidu Gaige de Shishi Yijian, supra note 66 (explaining the work defense lawyers would participate in). 70. Quanguo Renmin Daibiao Dahui Guanyu Xiugai Zhonghua Renmin Gongheguo Xingshi Susongfa de Jueding (?????????????????? ???????????) [Decision of the Nat?l People?s Cong. on the Amend. of the Crim. Proc. L. of the People?s Republic of China] (promulgated by the President of the People?s Republic of China, Mar. 14, 2012, effective Jan. 1, 2013) , at ? 8, https://www.cecc.gov/resources/legal-provisions/second-amendment-tothe-criminal-procedure-law-of-the-peoples-republic-of (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 71. See China?s New Criminal Procedure Law: Death Penalty Procedures, HUM. RTS. J. (Apr. 3, 2012), https://www.duihuahrjournal.org/2012/04/chinasnew-criminal-procedure-law-death_03.html (referring to the amendment to Article 240, which requires the Supreme People?s Court to listen to the opinion of promulgated aims to provide professional assistance to every criminal defendant,72 although currently less than 30% of defendants have a lawyer.73 2. Administrative Procedure Law The 2014 Administrative Procedure Law revision changed the case acceptance system of courts from ?review system for case docket? (?????) to ?registration system of case docket? (??? ??).74 The revision means that when plaintiffs file cases in a court, the court will no longer decide whether to accept the case depending on the merits of the case, but the court will accept and register all the cases, or will provide a written explanation of why the case is not accepted within seven days of filing.75 This change defense attorney upon his or her request during the death penalty review process) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 72. See Guanyu Kaizhan Xingshi Anjian L?shi Bianhu Quanfugai Shidian Gongzuo de Banfa (?????? ??? ?????????????????? ????) [Sup. People?s Ct. & Ministry of Just. Pilot Plan of Universal Coverage of Law. Def. in Crim. Cases] (effective Oct. 11, 2017), http://www.court.gov.cn/zixun-xiangqing-62912.html (detailing defense counsel representation reform plans) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 73. CONG.-EXEC. COMM?N ON CHINA, DEFENSE LAWYERS TURNED DEFENDANTS: ZHANG JIANZHONG AND THE CRIMINAL PROSECUTION OF DEFENSE LAWYERS IN CHINA 11 (2003) (citing Wang Jin, Are Defense Lawyers Able to Enjoy ?Special Rights,? BEIJING YOUTH DAILY, May 22, 2001). 74. Susan Finder, New Docketing Procedures Come to the Chinese Courts, SUP. PEOPLE?S CT. MONITOR (June 18, 2015), https://supremepeoplescourtmonitor.com/2015/06/18/new-docketing-procedurescome-to-the-chinese-courts/ (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 75. Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiugai Zhonghua Renmin Gongheguo Xingzheng Susongfa de Jueding (??????? ???????????????????????????) [Decision of the Nat?l People?s Cong. Standing Comm. on the Amend. of the Admin. Proc. L. of the People?s Rep. of China] (promulgated by the Standing Comm. Nat?l People?s Cong., Nov. 1, 2014, effective May 1, 2015) , at ? 31, http://www.npc.gov.cn/npc/xinwen/2014-11/02/content_1884662.htm (on file with the Washington & Lee Journal of Civil Rights & Social Justice). made it easier for people to file administrative lawsuits. In the past, courts were reluctant to review administrative lawsuits against the government that they considered too ?sensitive.?76 The 2014 Administrative Procedure Law revision also added a clause prohibiting administrative agencies from interfering with the courts? filing of administrative cases and requiring agencies to appear in court for lawsuit hearings.77 In February 2018, the Supreme People?s Court released an interpretation document for the Administrative Procedure Law.78 It removed ten kinds of actions from the jurisdiction of administrative courts.79 Among them are claims based on actions of public security and state security agencies authorized under the Criminal Procedure Law, which include detention under RSDL.80 76. See For Some Plaintiffs, Courts in China are Getting Better, ECONOMIST (Sep. 30, 2017) https://www.economist.com/china/2017/09/30/for-some-plaintiffscourts-in-china-are-getting-better (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 77. See Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Guanyu Xiugai Zhonghua Renmin Gongheguo Xingzheng Susongfa de Jueding (???? ??????????????????????????????) [Decision of the Nat?l People?s Cong. Standing Comm. on the Amend. of the Admin. Procedure L. of the People?s Rep. of China] (promulgated by the Standing Comm. Nat?l People?s Cong., Nov. 1, 2014, effective May 1, 2015) , at ? 3, http://www.npc.gov.cn/npc/xinwen/2014-11/02/content_1884662.htm (detailing the revised procedural requirements) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 78. Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Xingzheng Susongfa de Jieshi (??????????????????????? ????) [Interpretation of the Sup. People?s Ct. Concerning the Application of the Admin. Proc. L. of the People?s Rep. of China] (promulgated by the Jud. Comm. of the Sup. People?s Ct., Nov. 13, 2017, effective Feb. 8, 2018), http://www.court.gov.cn/zixun-xiangqing-80342.html (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 79. See id. art. 1. 80. See id. 1. Judicial Independence Besides the legislative changes, statements, and regulations from the CCP, in other ways the government suggested the leadership was committed to increasing the role of lawyers and bringing more independence to the courts. Starting in 2015, the SPC started to set up circuit courts that are separated from local governments and directly report to the SPC in Beijing.81 Within two years, the SPC set up six circuit courts around the country.82 The President of the Second Circuit Court, Hu Yunteng, wrote at the time in Qiu Shi, one of the most influential political commentary magazines published by the CCP, that setting up the circuit courts was aimed to ensure the independence of the judiciary from the influence of local authorities.83 In March 2015, the CCP and State Council jointly issued a regulation on the prevention of and penalties for local government officials intervening in judiciary activities.84 In November of the 82. Id. at 265. 83. See Hu Yunteng (???), Wei Shenme Yao Sheli Xunhui Fating? (?? ?????????) [Why Do We Need to Set Up Circuit Courts?], Qiu Shi [?? ] (June 15, 2015, 8:00 AM), http://www.qstheory.cn/dukan/qs/201506/15/c_1115588377.htm (explaining that the circuit courts were established to separate the judicial system from administrative divisions and to guarantee an independent, fair, and impartial judiciary) (on file with the Washington & Lee Journal of Civil Rights & Social Justice); see also Carl Minzner, Legal Reform in the Xi Jingping Era, 20 ASIA POL. 4, 7 (2015) (?The creation of cross-jurisdictional local courts and procuratorates seeks to cut across existing administrative lines of authority and curb the influence of local officials.?). 84. Guanyu Lingdao Ganbu Ganyu Sifa Huodong Chashou Juti Anjian Chuli de Jilu, Tongbao he Zeren Zhuijiu Guiding (????????????????? ????????????????) [Regulation on the Recording, Reporting and Accountability Measures for Intervention of Judicial Activities and Meddling of Specific Cases by Officials] (promulgated by the General Office of the Communist Party of China and General Office of the State Council, effective Mar. 18, 2015) http://www.gov.cn/guowuyuan/2015-03/30/content_2840521.htm (on file with the Washington & Lee Journal of Civil Rights & Social Justice). same year, and again in February 2016, the CCP?s Central Political and Legal Affairs Commission published a combination of twelve typical examples of prohibited intervention by government officials in judicial activities.85 These cases include local government officials, judges, prosecutors, and police officers trying to influence cases by exercising their public authority.86 The term ?judicial independence? in China only means independence from the personal interests of officials or the undue influence of local governments.87 It does not mean independence from the CCP leadership.88 The ideological control by the CCP is a foundational aspect of the justice system; at least in matters of interest to the CCP, there is no judicial independence from the interests of the CCP.89 In fact, the CCP ideological control has been 85. See Zhongyang Zhengfawei Tongbao 5 qi Ganyu Sifa, Chashou Anjian Chuli Dianxing Anjian (???????5????????????????) [Central Political and Legal Affairs Commission Reports 5 Typical Cases of Intervention of Judicial Activities and Meddling of Cases], RENMIN WANG (??? ) [PEOPLE?S NETWORK] (Nov. 6, 2015 11:17 AM), http://fanfu.people.com.cn/n/2015/1106/c64371-27785727.html [hereinafter 2015 Cases of Intervention] (providing examples of five government officials intervening in judicial activities and specific cases) (on file with the Washington & Lee Journal of Civil Rights & Social Justice); see also Zhongyang Zhengfawei Tongbao qi qi Ganyu Sifa Dianxing Anjian (????????????????? [Central Political and Legal Affairs Commission Reports Seven Typical Cases of Intervention of Judicial Activities] RENMIN RIBAO (????) [PEOPLE?S DAILY] (Feb. 2, 2016, 7:30 AM), http://fanfu.people.com.cn/n1/2016/0202/c6437128102905.html [hereinafter 2016 Cases of Intervention] (providing seven examples of government officials intervening in judicial activities and specific cases) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 86. See Cases of Intervention, supra note 85. 87. See Judicial Independence in the PRC, CONG.-EXEC. COMM?N ON CHINA, https://www.cecc.gov/judicial-independence-in-the-prc (last visited Oct. 16, 2018) (describing the more limited concept of judicial independence that exists in China as compared with that in the West) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 88. See id. (explaining that the leadership of the Party, the people?s congresses, and the procuratorate ?are generally not considered improper restraints on judicial independence?). 89. See id. (noting that ?judges are expected to adhere to the leadership of the Party? and that while ?Party interference is less common than local government official interference . . . this distinction is clouded in practice, as most growing even stronger, even among legal professionals. At a conference with provincial high court presidents in 2017, the SPC?s president, Zhou Qiang, explicitly addressed the importance of ideological work and categorized the western ideas of ?constitutional democracy,? ?checks and balances,? and ?judicial independence? as ?wrongful thought.?90 Although it caused a huge backlash from the public, the SPC did not back down from Zhou Qiang?s statement.91 Instead, the SPC published two commentaries three days later supporting the statement, further explaining why the western legal system is not suitable for China and why promoting western ideology is dangerous to the country.92 Despite technical improvements in independence from local key government officials are also Party members?). 90. Supreme People?s Court (??????), Zhou Qiang: Zhashi Zuohao Renmin Fayuan Gexiang Gongzuo, Yi Youyi Chengji Yingjie Dang de Shijiuda Shengli Zhaokai (????????????????????????????? ???) [Zhou Qiang: Solidly Accomplish all the Tasks of the People?s Courts, Welcome the Victorious Opening of the Nineteenth Party Congress with Excellent Achievements], SINA WEIBO (Jan. 14, 2017, 7:14 PM), https://weibo.com/3908755088/EqOiSharJ?type=comment#_rnd1519865052159 (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 91. See Michael Forsythe, China?s Chief Justice Rejects an Independent Judiciary, and Reformers Wince, N.Y. TIMES (Jan. 19, 2017) https://www.nytimes.com/2017/01/18/world/asia/china-chief-justice-courts-zhouqiang.html?_ga=2.186358443.369514703.1519864599-175205695.1517193387 (addressing the frustrations felt in China and abroad with Zhou Qiang?s rejection of the Western concept of judicial independence) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 92. See Supreme People?s Court (??????), Guchui Cuowu Sichao Weiji Guojia Zhengzhi Anquan (??????????????) [Promoting Wrongful Thoughts are Dangerous for the Political Security of the Country], SINA WEIBO (Jan. 17, 2017, 11:38 PM) https://weibo.com/3908755088/ErijuBj4q?type=comment#_rnd1519866340176 (providing support for Shou Qiang?s statement) (on file with the Washington & Lee Journal of Civil Rights & Social Justice); see also Supreme People?s Court (? ?????), Dui Cuowu Sichao Liangjian Shi Women de Lishi Shiming (??? ????????????) [Challenging Wrongful Thoughts is Our Historical Mission], SINA WEIBO (Jan. 17, 2017, 11:39 PM), https://weibo.com/3908755088/ErijQecNt?type=comment#_rnd1519866312942 (same) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). authorities, ideological control is not going away in the Chinese court system but, instead, is growing even stronger.93 2. Protecting Lawyers? Professional Rights Even after the 709 Crackdown, in September 2015, the Supreme People?s Court, the Supreme People?s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice jointly issued the Regulations on Protecting Lawyers? Professional Rights According to Law.94 Similar to the added professional rights for lawyers in the Criminal Procedure Law amendment,95 this Regulation is a reiteration of the lawyer?s rights and an implementation guide for the agencies.96 Although the Regulation shows the commitment to protect the lawyers? rights, violations are still common.97 93. See Forsythe, supra note 91, (describing President Xi Jingping?s demand for obedience from the judiciary). 94. See Guanyu Yifa Baozhang L?shi Zhiye Quanli de Guiding (????? ??????????) [Regulations on Protecting Lawyers? Professional Rights According to Law] (promulgated by the Sup. People?s Ct., the People?s Procuratorate, Ministry of Public Security, Ministry of St. Security, and Ministry of Just., effective Sept. 16, 2015) http://www.xinhuanet.com/legal/201509/20/c_1116616593.htm (outlining the rights of Chinese lawyers) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 95. Quanguo Renmin Daibiao Dahui Guanyu Xiugai Zhonghua Renmin Gongheguo Xingshi Susongfa de Jueding (?????????????????? ???????????) [Decision of the National People?s Congress on the Amendment of the Criminal Procedure Law of the People?s Republic of China] (promulgated by the Nat?l People?s Cong., Mar. 14, 2012, effective Jan. 1, 2013) , http://www.npc.gov.cn/huiyi/lfzt/xsssfxg/2012-03/15/content_1717671.htm (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 96. Guanyu Yifa Baozhang L?shi Zhiye Quanli de Guiding (??????? ????????) [Regulations on Protecting Lawyers? Professional Rights According to Law] (promulgated by the Sup. People?s Ct., the Sup. People?s Procuratorate, Ministry of Pub. Security, Ministry of St. Security, and Ministry of Just., effective Sept. 16, 2015) http://www.xinhuanet.com/legal/201509/20/c_1116616593.htm (on file with the Washington & Lee Journal of Civil Rights & Social Justice). of the testimony taken in this matter . . . completely exonerates Brown from any improper conduct.?331 Once Northern lawyers began to undertake representation and organization of Southern civil rights clients and causes, new forms of professional harassment emerged. Among the lawyers whose work acted as a lightning rod for organized bar criticism was William Kunstler.332 Kunstler?s identification with his activist clientele broke sharply with traditional lawyer norms of professional separation from clients and earned him a folk hero status among law students and young lawyers.333 Kunstler went from representing civil rights workers including Mississippi Freedom Riders334 and other protesters in the South, to Black Panthers,335 to the Chicago Seven.336 Kunstler was not a large firm, New York lawyer who took up civil rights causes.337 His early practice in the 1950s was characterized by undistinguished representation in will, domestic relations, and real estate closing matters, with one ironic exception: referred by classmate Roy Cohn, Kunstler drafted a will for the soon-to-be-infamous Joseph McCarthy.338 district court judge due to his engagement in litigation seeking desegregation of certain Mississippi schools). 331. Id. at 909?10. 332. See Moliterno, supra note 279, at 744. 333. See Victor S. Navasky, Right On! With Lawyer William Kunstler, N.Y. TIMES MAGAZINE, Apr. 21, 1970, at 30. (referring to Kunstler as a ?radical lawyer of the century?). 334. See Jerry Schwartz, ?Chicago 7? Attorney William Kunstler Still Champion of the Political Underdog, L.A. TIMES, Apr. 5, 1987 (?Then, in 1961, the ACLU asked [Kunstler] to go to Mississippi to assist local lawyers representing the Congress of Racial Equality?s freedom riders.? (internal quotation marks omitted)). 335. See Navasky, supra note 333. 336. See Schwartz, supra note 334 (?But to many, [Kunstler] is linked forever with the Chicago 7 conspiracy trial . . . .?). 337. See DAVID J. LANGUM, WILLIAM M. KUNSTLER: THE MOST HATED LAWYER IN AMERICA 44 (1999) (describing Kunstler?s early years of legal practice during which he and his brother established Kunstler & Kunstler, ?a rather ordinary practice? on Fifth Avenue in New York City). 338. See id. at 44?45. As a traveling civil rights activist lawyer, Kunstler needed pro hac vice admission in various courts to represent his clients, which was not always freely given.339 Interestingly, Kuntsler regarded himself as a modern-day, ?itinerant lawyer in the colonial tradition.?340 The image of Lincoln, riding circuit with his colleagues from rotating court-day to court-day341 is not one that traditional lawyers would have attached to Kunstler. And to be sure, the political nature of their practices bears no comparison whatever. But in another sense, the comparison to a 17th or 18th century lawyer traveling from court to court to meet his clients and represent them, is apt. The mode of transportation and its speed and capacity had changed dramatically, but it was true that Kunstler seemed to be everywhere, especially throughout the South in the 1960s. Between the time of colonial lawyers and later Lincoln?s circuit-riding and Kunstler?s traveling civil rights lawyer show, UPL (unauthorized practice of law) restrictions on cross-border law practice had become far more stringent.342 The Chicago Seven representation won him national attention and, in some circles, derision.343 The circus nature of the Chicago trial, and especially Kunstler?s openly hostile, two-way war with Judge Julius Hoffman, produced four years? worth of contempt citations which were later reversed by the Seventh Circuit. 344 The bar reaction to his ferocious representation in Chicago was strikingly swift.345 The Association of the Bar of the City of New York so anxiously awaited the opportunity to discipline Kunstler that it began proceedings before the Chicago Seven trial had ended, violating its own rules of procedure.346 In the end, confession came, as some elements within the organized bar realized that repressive mistakes had been made, especially in the context of efforts to chill zealous representation of the so-called ?new left.?347 The bar had ?misconstrued . . . the dimensions and causes of courtroom disorders . . . confus[ing] zeal in the defense of clients with revolution . . . [in its movement to] intimidate defense counsel.?348 Like the Die-Hard lawyer, Kunstler challenged the government orthodoxy and he paid a price for it. As they had to Kunstler, responding to outsiders with law practice restrictions was a key measure for southern lawyer-dominated legislatures.349 Five southern states enacted harsher restrictions on client getting, unauthorized practice, and community organizing activities, in an effort to prevent outside lawyers (especially NAACP lawyers) from organizing and recruiting plaintiffs for school desegregation cases that would force compliance with Brown v. Board. The Virginia bar?s efforts to keep outside lawyers outside resulted in the Supreme Court?s entry into the fray in NAACP v. Button.350 The NAACP and its affiliate, the court?s imposition of a four year, 13 thirteen-day sentence for contempt). 345. See Tom Goldstein, Bar Group Withdraws Charges Against Kunstler, N.Y. TIMES Magazine 34 (Feb. 21, 1974) (discussing the grievance committee?s departure from standard policy of ?waiting until all appeals have been heard before bringing disciplinary action?). 346. See id. (same). 347. Id. 348. NORMAN DORSEN & LEON FRIEDMAN, DISORDER IN THE COURT: REPORT OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, SPECIAL COMMITTEE ON COURTROOM DISORDER xiii?xvi (1973). 349. See Edward F. Sherman, The Right to Representation by Out-of-State Attorneys in Civil Rights Cases, in ARTICLES BY MAUER FACULTY 65 (1968) (?[A]fter the large demonstrations and mass arrest subsided and civil rights law practice in the South shifted from defense to affirmative suits, the lenient attitude of southern courts towards out-of-state attorneys began to change.?). 350. NAACP v. Button, 371 U.S. 415 (1963). Legal Defense Fund (LDF) had chapters in Virginia.351 Through these chapters, Virginia residents were informed of the possibility of pursuing school desegregation suits by retaining NAACP and LDF lawyers.352 Lawyers affiliated with the NAACP were paid a per diem during such representation, but often without any other form of compensation.353 The Virginia State Bar proceeded against these lawyers and the NAACP on the ground that their conduct amounted to inappropriate solicitation of business and, in particular, that the NAACP, which was not a party to the various school desegregation litigation, had unlawfully interjected itself into litigated matters by soliciting plaintiffs and supplying lawyers.354 The Virginia courts held that the NAACP lawyers had acted unethically.355 The Virginia courts asserted that the statutes? purpose was to uphold high standards of the legal profession by ?strengthen[ing] the existing statutes to further control the evils of solicitation of legal . . . [s]olicitation of legal business has been considered and declared from the very beginning of the legal profession to be unethical and unprofessional conduct.?356 Eliminating the activities of the NAACP at that juncture would likely have spelled an end to school desegregation in Virginia for the foreseeable future. The Supreme Court reversed the Virginia courts? treatment of the issue, holding that such an application of the solicitation rules violated expression and association rights under the First and Fourteenth amendments.357 351. See id. at 421 (discussing the involvement of Defense Fund lawyers in litigation in Virginia). 352. Id. 353. See id. at 420?21 (describing the payment of Defense Fund lawyers by the Virginia Conference as ?a per diem fee not to exceed [sixty dollars], plus out-of-pocket expenses?). 354. See id. at 419 (analyzing whether solicitation of clients by the Defense Fund and the NAACP was unethical and in violation of Chapter 33 of the Virginia Code). 355. See NAACP v. Harrison, 202 Va. 142, 155, 116 S.E.2d 55, 66 (1960) (holding that the actions of the NAACP constituted "fomenting and soliciting legal business in which they are not parties and have no pecuniary right or liability?). 356. Id. at 154. 357. See NAACP v. Button, 371 U.S. 415, 444 (1963) (?We conclude that although the petitioner has amply shown that its activities fall within the First Both federal courts and the executive branch in some ways protected the civil rights lawyer from mistreatment at the hands of state and local officials. In this respect, the Chinese Die-Hard lawyer is markedly different. David Mays was an example of a moderate segregationist lawyer, whose views of civil rights lawyers would today be regarded as extreme.358 Mays was congratulated and thanked repeatedly for his Gray Commission role at a 1955 Virginia State Bar meeting, the same meeting at which the organization adopted a resolution condemning the Supreme Court for its invasion of states? rights in Brown.359 Mays, the moderate who was praised by his fellow lawyers for stabilizing the radical segregationists,360 referred to W. Hale Thompson of Newport News as that ?unbelievably arrogant . . . nigger lawyer.?361 Thompson had dared to suggest in a Gray Commission public hearing that ?Thomas Jefferson, James Madison and Patrick Henry would be ashamed of some members of the [Virginia] General Assembly.?362 When Mays described the pleasure of having two former FBI men play surreptitiously-made recordings of NAACP lawyer conversations with plaintiffs in the Prince Edward County case and the Charlottesville case, he made no mention of whether he Amendment?s protections, the State has failed to advance any substantial regulatory interest . . . which can justify the broad prohibitions which it has imposed.?). Other ?association? cases followed, arising largely from a new ethos of cause or issue lawyering that accompanied the first federally funded legal aid programs. 358. See DAVID J. MAYS, RACE, REASON, AND MASSIVE RESISTANCE 2 (James R. Sweeney ed., 2008) (?A product of white society in the early-twentieth-century South, [Mays] retained the attitudes of that time, although his temperament and his legal training prevented him from taking extreme positions.?) 359. See id. at 62 (discussing the praise that Mays? peers gave him pertaining to his views on segregation and with the Gray Commission of 1954). 360. See id. (?Many lawyers have made it clear to me that they look upon me as the stabilizing influence that has prevented a stacked commission from taking radical action? (internal quotation marks omitted)). 361. See id. at 85?86 (suggesting that Mays was referring to W. Hale Thompson when he referred to a speaker at a Gray Commission public hearing as ?one nigger lawyer [who] was unbelievably arrogant.?). 362. Id. was listening to an intrusion on the lawyer-client relationship.363 Instead he said, ?These may prove very helpful in probable proceedings by the [Virginia State Bar] against Oliver Hill [a preeminent school desegregation lawyer] and possibly others.? No evidence appears to exist that Hill was ever charged, but his colleague Samuel Tucker was repeatedly brought before bar authorities and charged with misconduct.364 Mays openly favored the bills introduced by Charles Fenwick and Harrison Mann, which he thought was meant to ?harass the NAACP.?365 In correspondence with Sidney Carleton, a former President of the Mississippi State Bar, ABA President Lewis Powell, long regarded as a voice of moderation in the profession and later on the Supreme Court, registered his views on Northern lawyers who represented Southern Blacks. Carleton, in an angry response to National Lawyers Guild (NLG) representation in Mississippi, said: [T]here has never been a time when the lawyers of the state of Mississippi have not stood ready, willing, and able to represent those in need of legal representation. It has not, however, been the policy of either the Mississippi State Bar nor of its members to violate public policy or to engage in the unethical practices or to become accessories before the fact by agreeing in advance to represent persons in criminal proceedings arising from contemplated actions not then having occurred.366 Powell replied to Carleton with praise for the Mississippi Bar, in language that implies negative views of NAACP and NLG lawyers who had organized the school desegregation plaintiffs such as those at issue in Button: My own view is that your bar took a fine step in its recent resolution on this subject. I think all of the southern bars should do the same thing, and follow them up with actual representation of Negroes?not to foment litigation but to defend those accused of crime. This is the best way I know to keep northerners from ?invading? the southern states. I am afraid nothing can keep some of the radicals from defaming the South generally without the slightest recognition that lawlessness in the northern cities is on a larger scale.367 Powell?s and Carleton?s remarks echo the resistance of the Chinese authority to the undermining ideas and interference of foreigners. Western interference and dangerous influence, including an ABA Human Rights award issued to Wang Yu, threaten the Chinese authority. For Southern lawyer-leaders, the foreign influence to be resisted came from the ?invasion? of Northern lawyers and organizations. Meanwhile, labor unions endeavored to provide counsel to their members, and federally-funded legal aid lawyers organized tenants and farm workers and represented entire classes of welfare recipients, institutional inmates and others. Still other lawyers sought to represent middle class clients at lower cost, using office automation and high client-volume generated by bar-prohibited advertising. In every instance the profession objected. In part, to be sure, the objections were motivated by opposition to the causes advanced by the new style of lawyer, but the objections were also to the new style of lawyering itself. To the traditional, one-client-at-a-time lawyer, whose clients found the lawyer through word of mouth in clubs and churches and social organizations rather than through advertising, this aggressive new style of lawyering was unprofessional, distasteful and demeaning to the profession generally. For these traditional lawyers, who not coincidentally represented corporate interests, cause lawyering was not proper lawyering at all, and it had to be stopped. Cause lawyers identified not exclusively with the private interests of clients, but to a great degree with the cause missions of the lawyers themselves. Cause lawyers pursued reform or closure of substandard prisons, jails and mental health facilities; they organized tenants, farm workers, and public assistance recipients; they identified specific laws and 367. Id. worked toward their reform. Like the Chinese die-hard lawyer whose goal is to reform the criminal justice system or the human rights policies of the state, the client was in some ways a vehicle for the reform work of the lawyer. And for both, traditional lawyers and the state itself objected vociferously. The profession?s impression of this new form of lawyering was accurate. Attorney General Nicholas deB. Katzenbach called for ?new techniques, new services, and new forms of intra-professional cooperation to . . . analyze the rights of welfare recipients, of installment purchasers, of people affected by slum housing, crime and despair.?368 ?There are signs, too,? he noted, ?that a new breed of lawyers is emerging, dedicated to using the law as an instrument of orderly and constructive social change.?369 Charles Hamilton Houston viewed the mission of the Howard Law School, to which he brought respectability and accreditation, as the creation of ?social engineers? capable of making real the teachings of sociological jurisprudence that emerged during the first half of the twentieth century.370 It was to be a cause-lawyer school. Neither Katzenbach?s nor Houston?s vision of lawyering meshed with the profession?s status-quo, and it met resistance from the organized bar as a result. Lawyers who were as fully committed to their clients? cause as were their clients threatened to disrupt the classical image of lawyers as being entirely independent and separate from their clients? goals.371 In China, many of the detained human rights advocates and their lawyers were champions of the peaceful transition theory, under which advocates believed that the moves toward market economy in China would pave the way for non-violent reform of the political system and elimination of the CCP?s strangle-hold on power.372 This theory invoked fear among CCP leadership, likening it to the color revolutions and the Arab Spring uprisings. The CCP reaction compares with the fears of US corporate and political power structures that cause lawyers? empowerment of workers, tenants, and the poor were essentially subversive of the status quo. Fierce criticism of poverty lawyers and civil rights activist lawyers came from the highest levels of judicial, government and bar leadership. Ronald Reagan was ?openly hostile to legal services lawyers,? first as Governor of California and later as President of the United States.373 Warren Burger, in his pleas for civility,374 gave substantial blame for the impending downfall of the profession to lawyers in political trials, or as Burger called them, the ?new litigation.?375 He encouraged the legal profession to apply ?rigorous powers of discipline? to the misbehaving lawyers by either the judicial or bar enforcement systems.376 Failure to do so, he warned, would allow ?the jungle [to] clos[e] in on us.?377 Bar leaders and commentators followed the Chief Justice?s lead.378 As ABA President, Powell was a vocal condemnor of civil disobedience, repeatedly decrying the actions of sit-in demonstrators? and Freedom Riders? testing of discriminatory laws regulating racial treatment in the South.379 We have witnessed, over the past decade, the development of a heresy that could threaten the foundations of our system of government under law. This is the doctrine that each person may determine for himself what laws are ?just,? and that laws and court orders are to be obeyed only so long as this seems ?just? to the individuals or groups concerned . . . . In 1965 many people believed that civil disobedience of orders and laws deemed to be unjust is a legitimate means of asserting rights and attaining objectives. Indeed, it is not too much to say that this form of civil disobedience?and its own unique tactics of demonstrations, sit-ins, lie-downs and mob pressure?has become the principal weapon of certain minority and dissident groups . . . . But our Constitution and tradition contemplate the orderly assertion of these rights.380 He did not mention states and state bar associations that were resisting the Brown mandate, ostensibly because they were of the view that it was unjust. Professional opposition and harassment of legal aid lawyers proceeded in part on the ground that state bars and powerful institutional interests saw their economic and political interests threatened by the lawsuits and legislative lobbying being done by cause lawyers on behalf of their clients.381 State and local bar associations in California, Texas, Florida, Pennsylvania and Washington, D.C. unsuccessfully sued the Office of Economic Opportunity (OEO), claiming it was violating ethical canons.382 They claimed that legal services lawyers were engaged 379. See, e.g., Lewis F. Powell, Jr., President, Am. Bar Ass?n, The President?s Annual Address: The State of Legal Profession, Address at the Assembly of the American Bar Association (Aug. 9, 1965), in 51 A.B.A. J. 821, 827 (1965) (calling civil disobedience ?a dangerous trend?); see also, e.g., JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 210?11 (Charles Scribner?s Sons, NY, 1994). 380. JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR. 1?3. 381. See Harry P. Stumpf, Law and Poverty: A Political Perspective, 3 WIS. L. REV. 694, 708?09 (1968) (?Opposition to federally funded legal services has been voiced on economic, professional, and ideological grounds. To the marginal (often solo) private practitioner, legal services may represent a threat to his livelihood. To the well-established lawyer the program is often seen as socialistic and unnecessary.?). 382. See EARL JOHNSON, JR., JUSTICE AND REFORM: THE FORMATIVE YEARS OF in unauthorized practice and were unlawfully soliciting clients.383 In doing so, they were largely reacting to the new, aggressive style of lawyering. These lawyers did not wait in their offices for clients to come; instead they sought clients to pursue the lawyers? causes. These lawyers did not pursue ordinary contract, commercial, tort and property claims. Instead, they sought social reform. They worked toward closing inhumane prisons and mental institutions, they organized tenants and farm workers, they worked to reform public assistance laws, and establish enhanced rights for criminal defendants. All of this drew the ire of the established power structures, both corporate and legal. In this way, US civil rights lawyers do resemble Chinese die-hard and human rights lawyers: both groups broke ranks with the traditional lawyering methods and practices of their predecessors. Perhaps the most vociferous fight between legal aid lawyers and a coalition of business and government interests was spawned by the California Rural Legal Assistance (CRLA) organization and representation of farm workers.384 CRLA moved in a variety of ways to increase wages for farm workers and demand government services for them.385 These lawsuits drew the ire and outrage of then Governor Ronald Reagan and Senator George Murphy, speaking and acting on behalf of the California agribusiness THE OEO LEGAL SERVICES PROGRAM 91 (Russell Sage Found. 1978) (summarizing various conflict-producing combinations of political and bar interests); see also Troutman v. 1969); AUERBACH, supra note 324, at 273; Billie Bethel & Robert Kirk Walker, Et Tu, Brute!, 1965 TENN. S.B.A.J. 11 (1965), quoted in A. Kenneth Pye & Raymond F. Garraty, Jr., The Involvement of the Bar in the War Against Poverty, 41 NOTRE DAME L. REV. 860, 866?69 (1966) (quoting ?Et Tu, Brute!? depicting the OEO Legal Services Program as affecting ?the destruction of the free, vital and independent protector of human rights?the creator of the system?the legal profession?). See generally Troutman v. Shriver, 417 F.2d 171 (5th Cir. 1969). 383. See JOHNSON, supra note 382. 384. See HOUSEMAN & PERLE, supra note 7, at 15?16 (describing the CRLA as a ?particularly aggressive legal services program that had gained notoriety for its successful efforts to stop certain draconian welfare and Medicaid policies in California and for its advocacy on behalf of farmworkers against agricultural employers?). 385. See id. (?The anti-CRLA testimony came from the California Farm Bureau, an organization of agricultural employers, which was frequently at odds with the CRLA and the farmworkers it represented.?). industry.386 At the time, state governors had the power to veto funding for their state?s federally funded legal aid programs, but that veto could be over-ridden by the OEO Director.387 Only once was a California governor?s veto sustained: In 1970, Governor Ronald Reagan vetoed the funding and the veto was sustained by then-OEO Director Donald Rumsfeld.388 Unsuccessful efforts by Murphy would have placed full control of legal services programs in the hands of governors, localizing control to suppress locally unpopular legal aid activities, and would have prohibited legal aid suits against the government.389 The latter effort was a part of a national affront to the successes of legal aid lawyers in various government-defendant matters, especially in the arena of welfare In some instances, courts refused to certify legal aid organizations whose community organizing went beyond traditional law service bounds.391 A New York Appellate Division objected to certifying more than one legal services provider for a particular county, for fear of their ?unseemly[] competition? for representation of non-paying clients, and out of worry that the 386. AUERBACH, supra note 324, at 274?75; Fred J. Hiestand, The Politics of Poverty Law, in WITH JUSTICE FOR SOME: AN INDICTMENT OF THE LAW 160, 160?89 (Bruce Wasserstein & Mark J. Green eds., 1970); see John D. Robb, Controversial Cases and the Legal Services Program, 56 A.B.A.J. 329, 329 (1970); see also AUERBACH, supra note 328, at 274?75 (noting that Senator Murphy?s remarks indicated the intent to prevent legal services programs from bringing cases against governmental agencies and officials and from engaging in test cases). See HOUSEMAN & PERLE, supra note 7, at 4. See Hiestand, supra note 386, at 182. 389. See Robb, supra note 386, at 329?30 (noting that the Senate did not pass a 1967 version of the Murphy amendment that would have precluded suits against government agencies, and that the 1969 version was ?a reaction at the national level that surfaced in a number of communities?). 390. See, e.g., King v. Smith, 392 U.S. 309, 333 (1968) (concluding that Alabama breached its federally imposed obligation to furnish federal assistance to families with dependent children by preventing otherwise eligible children from aid if the mother cohabits with a man not obligated to support the children); see also Shapiro v. Thompson, 394 U.S. 618, 637?42 (1969) (deciding that statutory prohibitions of welfare benefits to residents of less than a year is unconstitutional). 391. See, e.g., In re Cmty. Action for Legal Servs., Inc., 274 N.Y.S.2d 779, 786 (App. Div. 1966). court could not maintain minimum standards of conduct.392 The court also expressed concern about the applicants? mixing of community action goals and legal service.393 Along with labor union lawyers, federally funded legal aid lawyers were a significant part of the new style of lawyering, cause or group lawyering, that did not go unchallenged by the organized bar and, acting through the bar, powerful economic interests. The standard one-client- at-a-time model of lawyering did not suit the goals of legal aid lawyers and union lawyers. Their strength lay in collective action that allowed a marshaling of modest resources in pursuit of a cause. The standard bar obstruction first took the form of unauthorized practice restrictions and later advertising and solicitation rules. Having failed in its efforts to restrict the activities of school desegregation lawyers,394 the Virginia State Bar worked to stifle opportunities for labor unions to provide counsel to their members.395 And the Illinois Bar initially prevented the United Mine Workers from hiring inside, house counsel.396 Each of these efforts was rejected by a Supreme Court whose decisions fostered the accumulation of power through collective legal action. ?Collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.?397 The Court?s rejection of the bar?s insistence on the traditional one lawyer-one client notion of lawyering laid the legal 392. See id. (expressing concern over the court and agencies being able to effectively supervise multiple legal assistance corporations in one area). 393. See id. (expressing concern over the court and agencies being able to effectively supervise multiple legal assistance corporations in one area). 394. See NAACP v. Button, 371 U.S. 415, 428?29 (1963) (holding that the activities of the NAACP and its legal staff are ?modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit . . . as improper solicitation of legal business . . . .?). 395. See Bhd. of R.R. Trainmen v. Virginia, 377 U.S. 1, 8 (1964) (holding that the First and Fourteenth Amendments protect the rights of labor organization members ?to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for recommending specific lawyers?). 396. See UMW v. Ill. State Bar Ass?n, 389 U.S. 217, 218 (1967) (noting that the Bar had claimed that when UMW hired inside, house counsel, this employment amounted to the unauthorized practice of law). 397. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 585 (1971). groundwork for legal aid lawyers? representation of causes, groups, and social issues, rather than individual clients. This sort of representation presented the shocking circumstance for powerful economic interests and government agencies, not used to having to deal with poor people on so nearly an equal footing. As the lawyer in charge of OEO programs in California put it, ?What we have created in CRLA [California Rural Legal Assistance] is an economic leverage equal to that of large corporations. Clearly that should not be.?398 The mere concept of such power residing in poor people and their lawyers seemed foreign, dangerous and subversive to the legal profession. Lawyers representing causes could not simply wait in their offices for the causes to arrive in the personage of an eligible client. While Attorney General, Nicholas Katzenbach tried to deter bar application of advertising and solicitation restrictions against poverty lawyers when he announced that lawyers should ?go out to the poor rather than wait . . . to be reduced to inaction by ethical prohibitions is to let the canons . . . serve the cause of injustice.?399 Katzenbach was an officer of the federal executive branch, which along with the federal courts, supported the cause lawyer.400 The Chinese Die-Hard lawyer has no such champion in the Chinese state apparatus. An uneasy measure of conditional cooperation regarding federally-funded legal aid eventually emerged from the organized bar at the national level.401 Even as the ABA began to co-operate with federally funded legal services, its best and most able spokespersons continued to put an unduly positive face on the organization?s prior record of opposing meaningful legal services for the poor. William McCalpin, who was truly instrumental in shaping the ABA?s more enlightened position on legal services, prefaced his strong advocacy for support of legal services by imagining an ABA previously unaware of the legal needs of the poor: ?[R]ecently we have begun to be aware of the possible legal needs of 40,000,000 disadvantaged citizens . . . .?402 The prior month?s issue of the same ABA Journal featured an article by Marvin Frankel that began with a statement more reflective of reality outside the walls erected by the ABA: ?It is no new discovery that the promise of equal justice is a hollow one for people too poor to retain counsel.?403 The ABA supported the new federal legal services program, provided that those services were ?performed by lawyers in accordance with ethical standards of the legal profession.?404 Legal aid lawyers, like any lawyers in other fields, were expected to comply with normal ethical rules. However, courts had not yet reformed the rules regarding solicitation,405 and consequently legal attorneys in the delivery of civil legal services. While the organized bar was generally supportive of LSC, certain segments of the legal profession remained unfamiliar with legal services practice, felt threatened by legal services advocacy, and, in some instances, were hostile to LSC?s mission.?). 402. F. William McCalpin, The Bar Faces Forward, 51 A.B.A.J. 548, 550 (1965). 403. Marvin E. Frankel, Experiments in Serving the Indigent, 51 A.B.A.J. 460, 460 (1965) (hoping against some of the early evidence that the ABA would allow new, OEO funded legal services offices to be established rather than merely pressing for additional funding for the traditional legal aids under the supervision of NLADA); interview by Olavi Maru with F. William McCalpin, Aug. 22, 1975, http://www.abf-sociolegal.org/oralhistory/mccalpin.html, Tape MCA-1-B (noting that ironically, some years later in an oral history of his ABA involvement, McCalpin himself described the unfortunate, introspection practiced by the ABA in dealing with difficult issues) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 404. McCalpin, supra note 402, at 551 (quoting Richard Pious, Congress, the Organized Bar, and the Legal Services Program, 1972 WIS. L. REV. 418, 420?21 (1972)) (discussing the political background for the ABA House of Delegates Resolution). 405. See In re Primus, 436 U.S. 412, 423?25 (1978) (stating that the aid and cause lawyers engaged in community organizing were subject to continued harassment by bar authorities for direct solicitation of clients.406 VII. Concluding Thoughts Fifty to seventy years later, some wounds of the war on civil rights lawyers remain, but such lawyering is no longer so far outside the mainstream. Although this reality continues to distress some with long memories of what they consider more civil times, there is no doubt that the more aggressive style of lawyering created by the cause lawyers of the 1960s and 1970s is a part of today?s American legal profession. How will Chinese lawyering look in fifty to seventy years? No one can be sure. Nonetheless, the reaction to the July 2015 round-up and detention of rights lawyers offers some clues and some parallels with the experience of American civil rights lawyers. This round-up and detention significantly increased the tension between the state and the activist lawyers, and so far, despite serious risk to themselves, the lawyers are not backing down.407 Despite being warned against continued aggressive activity, current trends indicate that the state pressure appears to be having the opposite effect, with more lawyers answering the call solicitation of clients by non-profit organizations, such as the NAACP, for political and associational purposes enjoyed broad First Amendment protections, which could only be regulated with narrow specificity); see also MODEL RULES OF PROF?L CONDUCT 7.2 (AM. BAR ASS?N 2016) (proposing a rule regarding lawyer?s ability to solicit clients). 406. See James Moliterno, Politically Motivated Bar Discipline, 83 WASH. U. L.Q. 725, 742?45 (2005) (detailing Southern state bar efforts to deter civil rights litigation). 407. See Andrew Jacobs and Chris Buckley, China Targeting Rights Lawyers in a Crackdown, N.Y. TIMES (July 22, 2015) , http://www.nytimes.com/2015/07/23/world/asia/china-crackdown-human-rightslawyers.html (?Despite the intense police pressure, and the previous imprisonment of lawyers . . . dozens have organized petitions denouncing the detentions and volunteered to defend those held by the police.?) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). of staunch criminal defense and human rights lawyering.408 Despite the intense and politically repressive environment, more lawyers are joining the ranks of the die-hard segment.409 Yu Wengsheng, a commercial lawyer in Hong Kong, is typical of these newly minted activists. When Yu?s client was arrested for involvement in the annual Hong Kong turn-back day protests? demanding more self-government and democratic selection processes in Hong Kong?Yu attempted to visit his client in detention.410 Yu felt outraged when he was prohibited from seeing his client, given his long background of ordinary commercial work and the absence of any previous criminal defense or activist work.411 Yu organized his own protests outside the jail on behalf of his client, and was promptly arrested himself.412 Now, Yu says, ?I used to think being a lawyer was just a tool to make money . . . . But now I believe we have a greater mission to change a broken system. The crackdown is fierce, but we rights lawyers will fight back.?413 Indeed, as Yu said, ?the crackdown is fierce.?414 ?This mass crackdown on lawyers is the broadest in terms of location, and clearly coordinated because of the timing of the initial crackdown,? said Sharon Hom, executive director of Human Rights in China.415 408. See Abby Seiff, China?s Latest Crackdown on Lawyers is Unprecedented, Human Rights Monitors Say, A.B.A.J. (Feb. 1, 2016, 12:10 AM), http://www.abajournal.com/magazine/article/chinas_latest_crackdown_on_lawye rs_is_unprecedented_human_rights_monitors/news/article/do_you_volunteer_on _a_regular_basis/?utm_campaign=sidebar (?[t]here was a broad expectation that it would have a very, very bad chilling effect . . . [w]hat happened was the movement grew. More and more lawyers were joining these groups . . . holding meetings . . . and taking on cases together with more experienced human rights lawyers.?) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 409. See id. (?A decade ago, there were a few dozen rights lawyers there. Today, there are hundreds.?). 410. Jacobs & Buckley, supra note 407. 411. Id. 412. Id. 413. Id. 414. Id. 415. Seiff, supra note 408. ?It included more than 23 provinces. It was a combination of detentions, disappearances and targeting family members, together with a very clear propaganda smear campaign in the People?s Daily. This is clearly a mass attack on lawyers that?s misusing legal process, using propaganda and then bringing back the collective punishment of China?s past by targeting the families.?416 The attack consists not only of the 2015 round-up of more than 200 lawyers, law firm staff, human rights activists, and family members, two of whom probably remain in detention in 2018,417 but of a state media blitz smearing the detained lawyers.418 State media outlets such as Xinhua and others have painted the rights lawyers in terms reminiscent of the complaints about the conduct of American civil rights lawyers.419 The state media reports the 416. Id. 417. ?709 Crackdown? Latest Data and Development of Cases as of 1800, CHINA HUM. RTS. L. CONCERN GROUP (July 7, 2018), http://www.chrlawyers.hk/en/content/%E3%80%90%E2%80%9C709-crackdown %E2%80%9D%E3%80%91-latest-data-and-development-cases-1800-7-july-2018 (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 418. Anthony Kuhn, Chinese Authorities Detain Nearly 150 Human Rights Lawyers, NPR, (July 14, 2015) , http://www.npr.org/2015/07/14/422952236/chinese-authorites-detain-nearly-150human-rights-lawyers (on file with the Washington & Lee Journal of Civil Rights & Social Justice); Chun Han Wong, Human-Rights Lawyers Detained in China Confess, State Media Reports, WALL ST. J. (July 19, 2015) , http://www.wsj.com/articles/human-rights-lawyers-detained-in-china-confessstate-media-reports-1437307686 (on file with the Washington & Lee Journal of Civil Rights & Social Justice); Andrew Jacobs & Chris Buckley, China Targeting Rights Lawyers in a Crackdown, N.Y. TIMES (July 22, 2015) , http://www.nytimes.com/2015/07/23/world/asia/china-crackdown-human-rightslawyers.html (on file with the Washington & Lee Journal of Civil Rights & Social Justice); China Cracks Down on Lawyers and Activists, ALJAZEERA (July 19, 2015) , http://www.aljazeera.com/news/2015/07/china-crackdown-lawyersactivists- 150719112829794.html (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 419. See Detained Chinese Lawyers Admit Guilt in Disorder Charges: State Media, REUTERS (July 24, 2015) , https://www.businessinsider.com/r-detainedchinese-lawyers-admit-guilt-in-disorder-charges-state-media-2015-7 (?The People?s Daily accused the group connected with the Fengrui firm of orchestrating protests outside courts to help secure favorable verdicts for clients . . . . The Xinhua state news agency, in a separate report on Sunday, described such accusations against the lawyers as ?stirring up? trouble,420 and of supporting protests on behalf of the lawyers? clients, echoing Southern states use of a barratry and champerty statutes to deter American civil rights lawyer from stirring up litigation, and of participating in civil rights protests to aid their clients.421 The Chinese lawyers stand accused of ?seriously interfering with normal judicial activities and disrupting social order.?422 The likeness to the accusations against US civil rights lawyers is striking. A further sign that Chinese authorities may actually be creating more cause lawyers rather than deterring them is a petition movement begun by a group of prominent lawyers in response to a 2015 crackdown that led to the detention of 200 lawyers and activists.423 The petition denounces the ?intimidating harassment? of authorities against lawyers.424 The petition calls on the Chinese government to ?respect the constitutional rights? of the detained lawyers, as well as an end to the raids on law offices and a fair and transparent judicial process for the detained lawyers.425 The petition, which was signed by over 1,000 people, states that ?[o]nly when lawyers? professional duty and rights are respected can the rule of law as understood in the civilised world take root in Mainland China,?426 Within China, only in Hong Kong could such a petition drive take root and grow. But for all of the economic benefits that have inured to China from the return of behavior as ?very close to blackmailing.??) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 420. Id. 421. See Wayne Rhine, Barratry?A Comparative Analysis of Recent Barratry Statutes, 14 DEPAUL L. REV. 146, 147 (1964 (describing Southern states efforts to strengthen their barratry statutes as a legal weapon against civil right litigation). 422. Detained Chinese Lawyers Admit Guilt in Disorder Charges: State Media, supra note 419. 423. See China Cracks Down on Lawyers and Activists, ALJAZEERA (July 19, 2015) , http://www.aljazeera.com/news/2015/07/china-crackdown-lawyersactivists-150719112829794.html (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 424. See id. 425. Id. 426. Id. Hong Kong, the social upheaval wrought by the island?s long-British-ruled inhabitants may cost the Party dearly. The American social upheaval of the 1960s, topped off by Watergate in the early 1970s, produces a generation of lawyers who were far more devoted to social justice than their predecessors.427 Along with Ford Foundation funding,428 the greatest impetus for the development of law school clinical programs focused on social justice was student demand.429 The clinical legal education movement has begun in China during the last decade, and appears connected with heightened levels of student interest in social justice.430 Like their American cause lawyer counterparts of fifty to seventy years ago, the new breed of die-hard lawyer may be marking a way forward for their legal profession. 427. See Laura G. Holland, Invading the Ivory Tower: The History of Clinical Legal Education at Yale Law School, 49 J. LEGAL EDUC. 504, 514 (1999) (?The social and political movements of the 1960s called lawyers to become activist reformers. Law students heard the same call and sought out work that would make their theoretical study of law relevant to the social struggle that was going on outside the walls of the law school.?). 428. See Stephen Wizner, The Law School Clinic: Legal Education in the Interests of Justice, 70 FORDHAM L. REV. 1929, 1933 (2002) (?But it was not until the late 1960s that clinical legal education received financial support and found an effective advocate in the person of William Pincus, a Vice-President of the Ford Foundation who was responsible for the Foundation?s anti-poverty initiatives.?). 429. See Ralph S. Tyler & Robert S. Catz, The Contradictions of Clinical Legal Education, 29 CLEV. ST. L. REV. 693, 695 (1980) (?Not until the mid-1960?s, in response then to societal pressures, student demand, and educational commitment, was the innovation of Langdell?s case method extended from the study of decided cases 2 to student work on actual and undecided cases.?). 430. See Yearly Reports of Secretary Office of Committee of Chinese Clinical Legal Education, http://www.cliniclaw.cn. (on file with the Washington & Lee Journal of Civil Rights & Social Justice). A Chinese/U.S. Program in Experiential Legal Teaching has been contributing much to the development and promotion of clinical legal education in China. This program is initiated and led by Brian Landsberg, Distinguished Professor and Scholar of Pacific McGeorge School of Law. See Brian Landsberg, Walking on Two Legs in Chinese Law Schools: A Chinese/U.S. Program in Experiential Legal Education, 16 INT?L J. CLINICAL LEGAL EDUC. 38 (2011); see also Liu Xiaobing, Recent Reform on the Legal Ethics Test in Chinese Legal Profession Admission System and the Challenges It Faces (forthcoming). In two remarkable ways, the Die-Hard lawyer and the U.S. civil rights lawyer are cut from the same cloth. First, both groups have been persecuted for challenging deeply-entrenched social order and power structures. And second, both groups have offended traditional professional norms of behavior, engendering the approbation from professional and state officials. The current mood of the possibility of legal change by cause lawyer is grim. Although there has surely been an increase in the number of human rights-oriented lawyers in China since 2012, and even since the 709 Crackdown, there is evidence that the ramped-up suppression and harassment by the state is wearing down the resolve of long-time activist lawyers. On a recent proposal to limit the number of times a non-Beijing licensed car may enter Beijing,431 a lawyer commented on his social media that, ?if this policy came out 9 years ago, I might organize meetings, write ?public interest petitions,? and call for constitutionality and legality review; 6 years ago, I might write articles, receive interviews, and propose suggestions; 3 years ago, I might grumble a little; now, I only want to watch them silently.?432 Despite these striking similarities, the two groups exist in powerfully different legal environments. By law, the Chinese lawyer?s number one professional duty is to the state, while the US lawyer?s independence from state influence is legendary.433 Further, for the US civil rights lawyer, the highest authority, often belatedly, supported the lawyer?s reform work.434 The federal 431. See Owen Guo, Want to Drive in Beijing? Good Luck in the License Plate Lottery, N.Y. TIMES (Jul. 28, 2016), https://www.nytimes.com/2016/07/29/world/ asia/china-beijing-traffic-pollution.html (detailing the difficulty of Chinese drivers with out-of-town license plates in getting a Beijing license plate through the city?s lottery system) (on file with the Washington & Lee Journal of Civil Rights & Social Justice). 432. Confidential post to listserv on file with author. 433. See Leland Benton, From Socialist Ethics to Legal Ethics: Legal Ethics, Professional Conduct, and the Chinese Legal Profession, 28(a) PAC. BASIN L.J. 210, 212 (2011) (?The Constitution, whose emanations permeate the legal system and which all lawyers are bound to uphold, lays heavy emphasis on the obligations of individual citizens to the state and the Party.?). 434. See Belknap, supra note 400 (describing federal government?s role in advancing civil rights during the Kennedy administration). III. Some Post-Revolutionary History ...................................105 China's Legal Reform 2012 -2015 ....................................109 Amendments in Legislation............................................. 110 1 . Criminal Procedure Law ........................................... 110 2 . Administrative Procedure Law .................................112 Political Commitments .................................................... 112 1 . Judicial Independence ............................................... 114 2 . Protecting Lawyers' Professional Rights .................. 115 3 . Overturning of Wrongful Convictions .......................119 IV. The Die-Hard Model ........................................................122 V. New Methods Used by the Die-Hard Lawyer .................125 ?Disappearances? and Forced Confessions......................134 Lawyer ............................................................................. 153 1 . See Alex Olesen , Meet China's Swaggering, 'Diehard' Criminal Lawyers, FOREIGN POLICY (May 16 , 2014 ), https://foreignpolicy.com/ 2014 /05/16/meet- Washington & Lee Journal of Civil Rights & Social Justice) . 2. See id. (remarking on the new ?diehard lawyers faction? in China and what these lawyers believe) . 21. See id. at 450 (Stevens, J., dissenting) (?In a series of cases brought in movement.?). 22 . See Andrew Jacobs & Chris Buckley , China Targeting Rights Lawyers in a Crackdown , N.Y. TIMES ( July 22 , 2015 ), http://www.nytimes.com/ 2015 /07 /23/world/asia/china -crackdown-human-rights-lawyers.html (discussing the Rights & Social Justice). 23 . See infra Part IV (describing violent threats and physical assaults civil rights lawyers had to endure ). 24 . Zhonghua Renmin Gongheguo Xingshi Susong Fa (?????????? by Standing Comm. Nat'l People's Cong ., July 7 , 1979 , effective Jan. 1 , 1980 , amended Mar . 14 , 2012 ), art. 64, P.R.C. LAWS 72- 77 . 25 . See SAFEGUARD DEFS., THE PEOPLE'S REPUBLIC OF THE DISAPPEARED: STORIES FROM INSIDE CHINA'S SYSTEM FOR ENFORCED DISAPPEARANCES 49- 65 (Michael Caster, ed., 2017 ) [hereinafter SAFEGUARD DEFS ., THE PEOPLE'S the account of Liu Shihui) . 26 . See generally SAFEGUARD DEFS., SCRIPTED AND STAGED: BEHIND THE 57 . Quanguo Renmin Daibiao Dahui Guanyu Xiugai Zhonghua Renmin (promulgated by the Nat'l People's Cong ., Mar . 14 , 2012 , effective Jan. 1 , 2013 ), ? 18 . 58. See id. (describing the various revisions of articles of the Criminal Procedure Law of the People's Republic of China) . 59 . Id . ?? 19 - 20 and ?? 71 - 72 . 60 . See generally Zhuohao Wang , Why Chinese Witnesses Do Not Testify at AND SOC. SCI. (No. 13YJC820073) ( 2011 ) (explaining how testimony was originally presented) . 61 . See Quanguo Renmin Daibiao Dahui Guanyu Xiugai Zhonghua Renmin Gongheguo Xingshi Susongfa de Jueding , supra note 57 (describing the various China) . 62 . Id . ? 19 , art. 59 . 63. Id . ? 20 . 81. See Margaret Y.K. Woo , Court Reform with Chinese Characteristics , 27 WASH. INT'L L. J . 242 , 263 - 64 ( 2017 ) (discussing the establishment of circuit courts as branches of the Supreme People's Court to hear inter-regional cases ). 97. See China: Release Human Rights Lawyers, HUM . RTS. WATCH (Feb . 15, 2018 , 12 :00 AM), https://www.hrw.org/news/2018/02/15/china-release-human339. See Kunstler Upheld by Appeals Court , N.Y. TIMES MAG ., May 19 , 1973 , at 34 (describing a district court's refusal to admit Kunstler . Kunstler needed Berrigan) . 340. LANGUM, supra note 337 at 65 . 341. See Willard L. King , Lincoln's Manager : David Davis, U. OF CHI. L. SCH. REC. 59 ( Dec . 1960 ) (describing Abraham Lincoln and his manager , David Davis, ?riding the Eighth Illinois Circuit ? in the 1940s and 1950s) . 342 . Compare Edward F. Sherman , The Right to Representation by Out-of-State Attorneys in Civil Rights Cases, in ARTICLES BY MAUER FACULTY 65 ( 1968 ) (discussing the shift away from the lenient attitude of southern courts Vice Admission Rules (ABA 2016 ) (providing the current requirements for pro hac vice admission by state) . 343 . See Schwartz, supra note 334 (?But to many, [Kunstler] is linked forever with the Chicago 7 conspiracy trial . . . .?). 344 . See In re Dellinger, 461 F.2d 389 ( 7th Cir . 1972 ) (reversing the district 363 . See id. at 191 (describing two former FBI agents playing recordings of NCAAP cases) . 364. See id. at 191; see also interview with Senator Harry L . Marsh III , http://www.library.vcu.edu/jbc/speccoll/civilrights/marsh01. html (on file with the Trials of S.W. Tucker, WASH. POST, June 11, 2000 , at W14. 365. MAYS, supra note 358, at 158 . 366. Letter from C. Sidney Carlton, Partner, Carleton & Henderson, to Ernest Goodman , President, National Lawyers Guild (Aug. 6 , 1964 ) ( on file in Lewis F . General Correspondence during Presidency , Box 76 ). 368. Id. at ch. 5 . 369. History of Civil Legal Aid, NAT'L LEGAL AID & DEFENDER ASS'N , http://www.nlada.org/About/About_HistoryCivil (last visited Aug . 14 , 2018 ) (on file with the Washington & Lee Journal of Civil Rights & Social Justice) . 370 . See Susan D. Carle , From Buchanan to Button: Legal Ethics and the NAACP (Part II ), 8 U. CHI. L. SCH . ROUNDTABLE 281 , 295 - 96 ( 2001 ) (citing Genna CIVIL RIGHTS 84 (Univ . of Pa. Press 1983 )) (using the term ?social engineers? to use the law as the means to attain the goal of improved social policy ). 371. See generally GAO ZHISHENG, supra note 195. 372. See generally id. 373. HOUSEMAN & PERLE, supra note 7 , 29 - 33 . 374 . See Burger Speaks and Kunstler 'Counters', N.Y. TIMES 25 ( Sept . 18, 1971 ) (noting that at the dedication of the Georgetown Law School building in 1971 , a most striking contrast was framed by Chief Justice Burger's dedication pick-up truck parked outside the building ). 375 . Fred P. Graham , Burger Assails Unruly Lawyers, N.Y. TIMES 1 (May 19, 1971 ) (quoting and excerpting from Chief Justice Burger's speech) . 376 . Id . (quoting and excerpting from Chief Justice Burger's speech) . 377 . Id . (quoting and excerpting from Chief Justice Burger's speech) . 378. See William A. Stanmeyer, The New Left and the Old Law , 55 A.B.A. J. 319 ( 1969 ) (echoing Powell's address before the American Association of State Colleges and Universities in 1968 ). See generally DORSEN & FRIEDMAN, supra note 348; see also generally AMERICAN BAR ASSOCIATION SPECIAL COMM . ON EVALUATION RECOMMENDATIONS IN DISCIPLINARY ENFORCEMENT xvii ( 1970 ); William A. 319 ( 1969 ). 398. AUERBACH, supra note 324, at 274 . 399. Nicholas deB. Katzenbach, Att'y Gen., U.S. Dep't of Justice, Address at the National Conference on Law and Poverty 3 ( June 24, 1965 ). 400 . See Michal R. Belknap , Civil Rights During the Kennedy Administration, 23 Law & Soc'y Rev . 921 , 921 ( 1989 ) (stating that the Kennedy administration Civil Rights Act of 1964 and the Voting Rights Act of 1965 ); see also Steven J. Simmons , Earl Warren, the Warren Court and Civil Liberties , 2 PEPP. L. REV. 1 , 3 ( 1975 ) (stating that protection of civil liberties, particularly for African Americans was a common thread of the Warren Court) . 401 . See HOUSEMAN & PERLE, supra note 7 (discussing that in later years and the Legal Services Corporation in 1980 .) ; see also id . at 30 (?[B]eginning in the early 1980s, a significant effort was made by the ABA and LSC to involve private


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James E Moliterno, Rongjie Lan. The New-Breed, “Die-Hard” Chinese Lawyer: A Comparison with American Civil Rights Cause Lawyers, Washington and Lee Journal of Civil Rights and Social Justice, 2019,