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."
