Experiencing China again
Willis P. Whichard Special to the Smoky Mountain Sentinel

EDITOR'S NOTE: Willis (Bill) Whichard is a former member of the North Carolina State Senate, a former Justice of the North Carolina Supreme Court and has recently retired as Dean of the Law School at Campbell University. He and his wife Leona are part-time residents of Clay County. A report of his trip to China is being published as a 12-part series in the Sentinel.

Part IX -Questioning the U.S. death penalty

A Chinese law student asked where the law is in the U.S. in a situation such as that depicted in the movie "Crash," which is about racial violence in Los Angeles. Estelle Rogers, a D.C. lawyer in our group, responded that the movie revealed disturbing and embarrassing aspects of life in America. It is about legal corruption and dishonesty in the police force and about tensions

forum for Americans to discuss these issues.

An English teacher at the law school inquired about the No Child Left Behind Act and the Patriot Act. I responded that in concept the No Child Left Behind Act was good, but that the federal government had not provided funding to the states and localities to implement its goals. William Hubbard of Columbia, South Carolina, our delegation's co-chair, is a law partner of Richard Riley, who was U.S. Secretary of Education in the Clinton administration. He noted that many of the principles of the law were formulated during the Clinton administration, and that Democrats and Republicans had come together to pass the law. Under it, the national government now sets education standards. The criticism is that the regulations are causing delay and inefficiencies in local education systems.

As to the Patriot Act, Steve Zack noted that the ABA has studied it. It was a response to terrorism, and the issue is, "How do you balance the freedoms that Americans have with the possibility of terrorism in the U.S. and abroad?" Americans do not want the government to interfere with their freedoms. This is all still being worked through in the courts, and it will be some time before the actual effect and the constitutionality are determined.

The leader of our delegation explained that the ABA House of Delegates has debated these issues and taken a position opposed to that of the Bush administration. Its views were communicated to the administration, which had changed its position regarding some aspects of the Patriot Act but not others.

In response to a comment from the audience that in America the state cannot get involved with a citizen's private life or property, I noted that our Constitution contains a Bill of Rights. Lawyers go into court to protect these rights in individual cases. The Patriot Act has not suspended the Constitution and the Bill of Rights, but we will be litigating the application of these rights in the context of this law.

A law student then questioned the continued use of the death penalty in the U.S. in light of the fact that it has been abandoned in Europe. Steve Zack responded that in the U.S. this is a matter for the individual states. Many states have abolished it, and in some others the governor commutes all death sentences. Where the penalty remains in effect, there must be a thorough appellate review on all levels. He acknowledged that the question is a much-debated one and informed the audience that many ABA leaders have spoken out against the death penalty.

After the session, we posed for a picture with representatives of the school. We left agreeing that we had experienced a very frank, open, lively discussion, perhaps the most interesting one in our China experience.

The afternoon session was with members if the Tongshergjicheng law firm in Guilin that is well-known for its practice in the areas of international business, international trade and intellectual property. There were students working in the firm who also met with us. We were greeted by a standard banner proclaiming "Warmly Welcome People to People Delegation." Jim Silkenat, the chair of our delegation, asked how the firm deals with clients who do not pay their bills. The response dealt first with those who cannot pay. They are represented by legal aid attorneys, we were told, and this is mostly for purposes of criminal defense. On the civil side, the losing party is responsible for the costs but not for the prevailing side's attorney fees. The question of how the firm deals with clients who are delinquent in paying their fees was never satisfactorily answered.

Their lawyers asked us how we go about acquiring legal business. They were told that this is perhaps the most significant question they could ask us and that American lawyers spend a lot of time obtaining their work. It is rare for a lawyer to be good at both generating the business and the technical aspects of processing it to an end result. The same is true in China, they responded. Our practice of lawyers writing and publishing scholarly articles as a way to draw business was foreign to them. It was explained that a lawyer needing help in a given area would research the scholarly literature and then perhaps consult the author or even associate the author in the case.

In this context, a member of our delegation mentioned the concept of reciprocity. He stated that we would contact them if we had a client with business in China, and we would hope they would contact us if they had clients with business in the United States.

Another American delegate asked how they determine what fee to charge. The response was that the Chinese have a national standard for this, but the lawyer and client can negotiate a fee. The fee may depend on the difficulty of the case and/or the time expended on it. We concluded that there were no significant differences in the two systems in this regard. A brief discussion about the different ways of getting paid for the rendering of legal services led to anidenticalconclusion.Th e Chinese were curious about lawyers seeking the office of President of the United States. Jim Silkenat referred them to the book "America's Lawyer Presidents: From Law Office to Oval Office," an American Bar Association production which details the lives and careers of the 25 lawyer presidents. Another member of our delegation informed them that in addition to being active in politics, lawyers in America are active in a great variety of civic, religious and charitable organizations.

We learned that, as in the United States, there is no retirement age for lawyers in China.

The Chinese lawyers were interested in the use of mediation to resolve legal disputes in the United States. We informed them that it is the most rapidly growing form of dispute resolution.

The discussion concluded with an expression of interest by the American lawyers on the question of judicial independence in China. Concern was expressed about whether a judge there, or in any foreign country, would rule purely on the basis of law, or whether extraneous considerations would influence the decision. There was also interest in whether there would be an opportunity to appeal to a higher court. The responses were inconclusive.

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