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Logo of Phnom Penh Post newspaper Phnom Penh Post - The law that cobbles the lawyers

The law that cobbles the lawyers

A s it stands, the new Bar Statute will hamstring foreign lawyers - and they

argue that sort of restriction will not help fledgling Khmer lawyers at all.
Susan Posthlewaite reports.

THE next few weeks will be

anxious ones for lawyers in Cambodia, the few there are.

The National

Assembly has slowly but surely been passing a Bar Statute that severely

restricts the ability of foreign lawyers to practice law here. The beneficiaries

of the statute are Cambodian "returnees," government lawyers and judges, and in

the future, a new generation of lawyers still in training.

Few would

argue that Cambodian lawyers deserve a break. Their ranks were decimated in the

Khmer Rouge period, so that today there are no more than 20 Cambodian lawyers,

according to most estimates. Some say that only four to six survived the purge

and the rest are lawyers who either fled or were fortuitously outside of the

country in 1975, and have since returned.

But there aren't many foreign

lawyers, either, and the handful who set up private practices in Phnom Penh over

the last year or two say that the new bar code, while vague and subject to

interpretation in many areas, is unduly restrictive and cumbersome, and could

mean that they will not be able to practice law the way they want to.

How the bar code will be interpreted should start to become clear over

the next several weeks or months.

First, lawyers will have to register

with the new Bar Association, and then a five-member Bar Council and a president

will be elected.

As written, the bar code prohibits foreigners from

becoming members of the Cambodia Bar, and it allows them to practice only if

they affiliate with a Cambodian lawyer who has been admitted.

Even if

they affiliate, they may not "represent" clients. They may take part in the

"business/profession jointly with Khmer lawyers and stand next to Khmer lawyers

in front of the courts," the code says.

Their agreements with Cambodian

affiliates are subject to bar approval, an arrangement that would seem to

prevent foreign lawyers from simply adopting a Cambodian lawyer as a name

partner, and continuing to solicit clients and collect fees as they do now. They

may not advertise their practices or do anything to "attract" clients. The code

also regulates the fees they may charge.

"Foreign lawyers can still come

and do all the work. But a foreigner cannot be a lawyer in Cambodia. He can do

the work at a salary from a Cambodian lawyer," says Gilberte Deboisvieux, the

French legal advisor to the Ministry of Justice who helped to draft the law.

She says foreign lawyers who have hung out their shingles will

eventually have to take down their signs. "They cannot open an office. They have

to take the names off the signs."

"I think it is better for Cambodia this

way. If we give all the work to foreigners, there won't be any work for

Cambodians," she says.

While everyone involved agrees it's desirable to

build up a new crop of Cambodian lawyers to replace a lost generation, the

shortage of qualified Cambodian lawyers in all areas, from commercial law to

defense law, poses a big problem.

"It's not workable to insist that

foreign lawyers have Cambodian partners. There aren't enough good Cambodian

partners. A lot of people claim to be lawyers," says Brett Sciaroni, an American

lawyer who set up commercial practice here about two years ago.

"The

argument is to build up the Cambodians. But it won't work. If Cambodian lawyers

aren't up to scratch, companies will bring in their own," says Australian

Michael Kennedy, who is currently setting up a commercial practice

here.

"There are lawyers here, but few are qualified in commercial law,"

says David Doran, of Dirksen Flipse Doran & Le.

Says Karen Tse, who

directs an NGO project to train defenders: "There is a few years shortage of

lawyers all over the place. A large percentage of people in Cambodia have not

yet had their cases tried."

Indeed, the restrictions go beyond foreign

commercial lawyers. The code would prohibit bar admittance to 25 newly trained

public defenders who have been defending Cambodians accused of crimes in Phnom

Penh, Battambang and Kompong Cham. The 25 graduated from a ten-month defender

training program run by the International Human Rights Law Group, and paid for

by programs using funds from USAID and the Dutch group NOVID. The defender

training was a response to human rights concerns that people accused of crimes

in Cambodia have inadequate access to defenders.

Tse, at the defender

project, said the Human Rights Law Group is requesting that the 25 lawyers be

allowed to continue to practice even if they cannot be in the Cambodia Bar. "We

are asking there be a ten-year period when the defenders be allowed to

practice," she said. She said even though other lawyers are being trained in

Cambodia at the University of Phnom Penh, there is no guarantee they will choose

to go into criminal law. The group isn't training any more defenders.

Even Cambodian lawyers are divided as to the benefits of the bar code.

Some said they are happy with the provisions that foreigners be required to

share their practices with Cambodians. "It seems reasonable," said Sam Sok Phal,

who is one of the few Cambodians to have survived the Pol Pot regime, and is now

in private commercial practice.

Say Bory, the first Cambodian commercial

lawyer to formally affiliate with a foreign law firm, says the requirement is

unrealistic. "We have no more Cambodian lawyers in the country. We need foreign

lawyers for the training, for five years or more." He says that clause means

that "my partner cannot practice here." His affiliation with a Malaysian firm

was much heralded by the Cambodian government earlier this month. The new firm

is called "Say Bory, Clough Thuraisingham & Partners."

Others said

the code gives preference to Cambodian government officials who attended law

school years ago and are now working for the government, as well as to judges

and magistrates who may never have even gone to law school but received

political appointments. The groups are automatically granted admission if they

apply as "judges or former judges who have been servicing in their own careers

for over five years."

It also lets in returnees who practiced law in

other countries, or who previously received their law degrees and have been

working in Cambodia in law for five years.

"Some of the judges have no

capability, they were appointed by the parties," said one law student who

expects to graduate from law school in 1987 but won't be able to begin

practicing until 1988 when he completes another year of training required by the

statute. "It is unfair," he said.

Some Cambodian lawyers also said the

code is unduly restrictive. For example, a lawyer who has worked in the

government is prohibited from representing clients before that administrative

ministry or service for five years after resigning from

government.

Currently foreigners who want to set up law offices here are

treated like a foreign investor. They must apply to be licensed by the Council

for the Development of Cambodia (CDC) for a fee of $100. That streamlined

process has angered some Cambodian lawyers who weren't given such easy entry to

the American and French bars when they left Cambodia as refugees.

Some of

the restrictive language in the code is said to have been initiated by these

Cambodian returnees who are bitter about the difficulties they faced in other

countries. "Some of them had to work in convenience stores and they are angry,"

said one lawyer.

Deboisvieux said the bar code isn't modeled after any

other country in particular, but is designed expressly for Cambodia's problems,

recognizing a shortage of lawyers. For example, the code will allow certain

students now going through abbreviated legal training programs sponsored by the

French aid programs to practice as defenders. She said 30 defenders are about to

graduate, and 30 more will be trained after that. Then in 1997, the first group

of law school students from the University of Phnom Penh will graduate. She says

that's plenty of lawyers for Cambodia.

There are only about five foreign

business lawyers now practicing in Cambodia, though other commercial lawyers fly

in to handle client needs. They say their work consists largely of advising on

commercial contracts, international arbitration, taxes and investment law -

subjects that few Cambodian lawyers who are now practicing would attempt to

handle, but for which there is a growing demand .

If the bar code is

strictly interpreted and foreign lawyers aren't allowed to establish their own

law practices, foreign lawyers always have the option of simply flying in to

handle work for clients, says Michael Popkin, with Dirksen Flipse Doran &

Le. But he doesn't think that will happen. "I think Cambodia will eventually

take the tack that other countries are taking where they recognize that

(foreign) lawyers are a necessary evil." In Thailand, for example, international

law firms are allowed to get around the ban on foreign lawyers by calling

themselves foreign legal consultants.

"International firms cannot

function without a foreign lawyer, if only for the language skills," says

Popkin. "I don't think any of the foreign lawyers here are pushing to do

litigation work; they are here to represent international clients and Cambodian

clients who want to do deals with foreigners."

Except for Say Bory's

association with the Malaysian group, none of the foreign firms have yet found

Cambodian partners, although they say they can do business fine with Cambodian

legal assistants.

Kennedy said the restrictions may be self defeating

for Cambodia. The bar code, he said, "does appear to exclude foreign lawyers

from practicing here, which is a shame. You don't learn law in law school. You

learn it by doing a clerkship in an established firm; it's something that is

acquired over time."

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