The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help. Male Lawyer 1 (L^sub 1^): How could you have signed this [labor] contract? Were you scatterbrained? Female Client (C): Yes, at the time, I signed it with my eyes shut. I didn't read it at all. L^sub 1^: Well, if you signed with your eyes shut you should face the consequences alone. What were you thinking? C: Why would you ask something like this? L^sub 1^: Are you divorced? Or is it possible you have other issues? You can't let go of problems. In your everyday life, do you often get into arguments with people? C: You have a problem with your head, don't you? Everything is a big question mark in your head, isn't it? L^sub 1^: There's nothing wrong with my head. C: When I ask you questions, you should just answer them! Why are you asking all these unrelated questions? L^sub 1^: You're consulting with me, aren't I answering your questions? C: Why ask about my marriage? L^sub 1^: I've already answered your legal question. Let's conclude this consultation here, OK? C: I don't think you have any principles! L^sub 1^: When someone asks you about your contract, do you have evidence? Evidence! Evidence! Evidence! Male Lawyer 2: Let me tell you, you've passed the filing deadline; the labor arbitration committee will not arbitrate. The guy is right . . .. I'm the lawyer, don't be so stubborn! . . . You have no chance! Get it? This is all I can say. If you still don't understand, seek the advice of someone wiser. (Labor dispute consultation at the BC Law Firm, Beijing, August 23, 2001) It has been accepted as a scholarly truism that the question of access to justice cannot be assessed empirically on the basis of observations of courts alone. To answer questions about the overall accessibility of official justice, we must begin our analysis far upstream with the institutions that facilitate and limit the initial awareness of injuries and other violations, the escalation of these perceived transgressions to grievances, and the escalation of grievances to claims that may or may not end up in court (Felstiner et al. 1980-1981; Abel 1988). Building on a research tradition in which lawyers are seen to "hold the keys that open or close the gates of the legal system" (Jacob 1995:118, cited in Martin & Daniels 1997:26; also see Kritzer 1997), this article scrutinizes the role of lawyers and law firms in these access-enhancing and access-depriving processes. Using interview and ethnographic data from lawyers and lawyer-client interactions in China, my goal is to strengthen our comparative and theoretical understanding of motive and mechanism in the case-screening process, the reasons why and the methods by which lawyers in Western and non-Western contexts function as gatekeepers to justice by refusing to represent certain kinds of clients with certain kinds of problems. First, with respect to motive, I use the case of China to confirm the theoretical centrality of economic incentives in the screening process and to refine this theoretical explanation by demonstrating how economic incentives are shaped by institutional and cultural context. …