What do the fuss last week over the use of non-disclosure agreements (NDAs) by solicitors, and the mass demonstrations in Hong Kong against its proposed new extradition law to China, have in common? They both raise complex issues regarding solicitors and the public interest – even if, in the second instance, it is the China connection rather than Hong Kong itself which raises the problem.
The relationship between the use of NDAs by solicitors and the public interest is now well-known. But the China connection has been barely aired.
The Law Society signed a letter to the chief executive of Hong Kong on the proposed changes to extradition laws. The letter included the following: ‘China’s justice system has a record of arbitrary detention, torture and other ill-treatment, serious violations of fair trial rights, enforced disappearances and various systems of incommunicado detention without trial. These problems are exacerbated because the mainland judiciary lacks independence from the government and the Chinese Communist Party. As a result, we are gravely concerned that anyone extradited to China will be at risk of torture and other ill-treatment and other grave human rights violations.’
All that is well-known about China. Many bars around the world write regular letters to the Chinese authorities protesting about the way they treat their own lawyers. The Council of Bars and Law Societies of Europe, for instance, has written seven such letters since the beginning of this year, citing illegal detention, suspension of licences and other repressive measures.
At the same time as it mistreats its own lawyers and runs a much-criticised justice system, the Chinese government has embarked on gigantic investment overseas, under the common name of the Belt and Road Initiative. This initiative gives China vast power over smaller developing countries which lie along the path of the new Silk Route, weighing them down with unpayable debts, and often subject to complaints over planning or environmental matters. Solicitors are doing a substantial amount of legal work to support Belt and Road.
There are difficult issues at stake, with extremely powerful arguments in favour of solicitors carrying on just as they are. All solicitors have the right to ensure that their law firms prosper by tendering for work which is remunerative and for which they have unique expertise. If they did not undertake the work, someone else would, and nothing much would be gained by abstention, other than their own self-induced loss of profit. No one has said that the client instructions are unlawful.
Second, and more powerful, is an argument based on the public interest. Everyone has the right to legal representation of their own choice. Our adversarial system depends on it. If every lawyer said that they did not find this or that kind of client desirable, the client would be left without representation. That is not in the public interest.
It is intriguing that, in the field of criminal law, this is an accepted principle which is barely ever challenged. Everyone agrees that the most terrible monster of a human being, who has committed foul acts, should have an independent lawyer of their choice by way of representative. And no one dreams that civil society should intervene to dictate how the lawyer should represent that client.
But in recent times, in the field of civil law, the feeling has grown that certain clients should either be shunned, or should be told they can only act in a certain way, even if a range of lawful options lies before them. Should a client who wants to employ child labour in a country where such labour is not unlawful be forbidden a lawyer? Should that lawyer only act if the client does not choose to proceed to employ child labour? Similarly, should an employer who wants an NDA after accusations of sexual misconduct, only be permitted a representative who complies with current views on the use of NDAs, regardless of what the law permits?
The danger with Belt and Road is that it is the kind of issue, like NDAs, which has the power to come back and haunt the profession. What was for years a perfectly ordinary activity for solicitors – preparing NDAs on the termination of employment – has been turned by the Harvey Weinstein case and others into a public interest issue capable of damaging the profession’s reputation. The Belt and Road Initiative has not yet had its Harvey Weinstein moment; but if it does, will the role of solicitors harm the whole profession? How many countries must be loaded with unpayable debt before questions are asked?
The Law Society criticises China, while solicitors reap huge rewards from its actions. If the law is silent, who decides what is in the public interest? It is clear that these issues will not disappear with a resolution of the current debate over NDAs.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council
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