"Attorneys take upon themselves the goals of promoting social justice, protecting human rights, and contributing to democratic government and the rule of law." These lofty goals are taken from the opening lines of Taiwan's Lawyer Law. Over the past decade the nature of Taiwan's attorney profession has been undergoing considerable change as reflected in attorneys' increasing importance in modern Taiwanese society and their increasing authority within the modern legal system.
The roles of attorneys in any modern society fall into three broad categories; attorneys are counselors, advocates or guardians of the law. In their role as counselors, attorneys advise their clients, assist their clients in drafting legal documents and negotiate on behalf of their clients. In their role as advocates, attorneys appear in court on behalf of their clients and guide the course of litigation and appeals. In their role as guardians of the law, attorneys work for better laws, better legal education and to improve the functioning and justice that the legal system delivers. In all three of these areas the role of Taiwanese attorneys has been increasing, but this has not been without controversy.
Core "Engine" of the System
The most essential of these controversies is whether the Taiwanese trial system is going to shift from a judge-centered to an attorney-centered model. Put simply, the issue is who is going to be the core "engine" of the trial system? Is the judge or the attorney going to have the basic responsibility for "driving the case" forward through the trial and appellate stages? What we mean by this can best be shown by a simplified example. In the United States, after a case is filed in court, if the attorneys do not take active steps to move the case towards trial, the case will "fall out" of the system and be dismissed. In contrast, in the Taiwanese system, where the judge is the "engine," it is the judge's duty to actively keep the case moving forward. In fact judges in Taiwan are subject to rules which require them to finish cases within one year. Cases in Taiwan do not "fall out" of the system due to inaction on the part of the attorneys. Once a case lands on a judge's bench, it is the judge's duty to see the case through to a resolution.
In the past, the role of the attorney in Taiwan was basically counseling the client before trial, perhaps drafting the initial court documents and handling the in-court arguments. But the attorney was not responsible for the witness examination, preparation or collection of evidence, or for seeing that the case moved forward through the system. The judge was the one handling the case and the one responsible for making sure everything was in order. For example, if there were witnesses who were not examined and the appeals court thought this failure to examine those witnesses resulted in an injustice, the blame, the fault, fell on the judge rather than the attorneys. The trial judge was responsible for taking care of just about all aspects of the case. The upshot of this was that most litigants did not, and still do not, bother with the expense or trouble of having attorneys.
Some legal reformers in Taiwan aim to have an American style, attorney-driven, trial system. There is a belief, which may or may not be correct, among some legal reformers that the American attorney system somehow is an important part of guaranteeing human rights, democracy and a rule of law. Ergo, if you want these good things--human rights, democracy and rule of law--for Taiwan, then you need American-style attorneys.
Be the wisdom of that as it may, the reformers in Taiwan propose that attorneys here, like attorneys in the United States, should be responsible for the pre-trial gathering of evidence, be it documents or witness statements, and will be responsible for the in-court witness questioning and for the overall handling of the case. The attorneys will be the engine driving the justice system, not the judges. Achieving this goal, however, will require other changes to the system and the most fundamental of these changes is raising the status and authority of Taiwanese attorneys.
Making a Profession
American jurist Roscoe Pound defined a profession as "a group pursuing a learned art as a common calling in the spirit of public service--no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose." Inculcating this view of legal professionalism in Taiwan is another of the major goals.
Compared to western nations, the practice of law as a profession is very new to Taiwan. Although "proto-attorneys" have existed in Taiwan since the mid-18th century, a modern legal profession has existed in Taiwan only since the mid-1980s. In addition to the relative youth of Taiwan's legal profession, there is also a long-standing cultural bias against people who encourage or are involved in litigation other than the actual parties and the judge. The Chinese term songgun is a highly pejorative term that refers to those who stir up litigation, it is also a term applied to attorneys. Songgun can accurately be translated as pettifogger, with all the negativity of that word.
Even to this day many Taiwanese view the role of the attorney as simply the messenger boy who tells the client how much they ought to bribe the judge and then handles the unseemly errand. Or an equally dark view of attorneys sees them as being "connected" with certain judges and thus able to use their personal connections with the bench to affect the outcome of litigation. Although both of these views are largely outdated, they are still the views of an attorney's main role held by a significant proportion of the Taiwanese public. The public's view of the legal profession has been further darkened by recent allegations that attorneys who went into politics have been involved in a number of high-profile scandals and criminal cases. Improving the public's image of the Taiwanese bar is a tough problem and one that is not going to be solved by some single "silver bullet"-type solution.
Legal Ethics
Actually a number of possible silver bullets are being proposed. One of these is to increase the place of legal ethics in Taiwan's attorney system. Although there are codes of legal ethics regulating Taiwanese attorneys, they are quite vague and the enforcement has, in the past, been uneven and somewhat lackadaisical. Attorney ethics are neither taught in law school nor tested on the bar exam; nor is the area of legal ethics much discussed by legal scholars or by practicing attorneys. Until a few years ago, with the publication of a book written by an American legal ethics scholar, there were not even any Chinese-language books available on the topic.
All this is changing. The Ministry of Justice, working in cooperation with the bar associations, is drafting changes to the Lawyer Law which will place a greater focus on legal ethics. This greater focus will involve both more detailed provisions about what is and is not acceptable behavior for attorneys and the new amendments will define more clearly what is the "practice of law." Part of the problem with attorney professionalism in Taiwan is the fact that what constitutes the regulated practice of law has never been clearly defined, in the sense of clearly separating it from related fields such as real estate brokers, financial planners and accountants. Put simply, the practice of law has never been viewed as anything "special" or anything that really required a specialized set of professional ethics. Attorney ethics in the past consisted of homilies to "be good, follow the law and work hard," which was hardly a nuanced approach.
To remedy this, reformers intend to include far more concrete ethics rules into the Lawyer Law and define precisely what the "practice of law" is. Also legal ethics will also be tested on the attorney examination and professional ethics will be taught in law schools if current proposals are carried through.
This is a kind of bootstrap approach. What the reformers hope is that by making a set of professional ethics rules, members of the attorney profession will subsequently act in a professional manner which will, in turn, increase public confidence and faith in both the legal profession and--in a broader sense--the legal system.
The reformers are, however, somewhat shy about discussing enforcement mechanisms. Having professional ethics rules that are not enforced is dangerously close to not having any professional ethics rules to start with. Un-enforced legal ethics rules will simply give the critics fodder for their criticisms and further lower the public's view of attorneys.
Attorney Education and Licensing
Another proposed way to "raise the bar" is to change how legal education and attorney licensing are conducted. Currently legal education in Taiwan encompasses both four-year undergraduate degrees as well as advanced graduate-level degrees. Students who graduate with bachelor's degrees with a major in law are eligible to sit for the three law-related examinations; the judge and prosecutor exam, the public defender exam or the attorney exam.
One of the top law schools in Taiwan, National Taiwan University's College of Law every year churns out hundreds of graduates aspiring to join the legal profession. (Photo by Huang Chung-hsin)
In Taiwan there has been a major increase in the number of universities offering undergraduate degrees in law over the past decade or so. For example, in the early 1990s Taiwan boasted only seven law schools; now there are 29 universities that have undergraduate law departments. Some 23 universities have LL.M. programs. There has been a roughly threefold increase in a decade. Law schools pop up like mushrooms in Taiwan cranking out attorneys to defend human rights--it is part of the Taiwanese miracle. This increase in the number of law schools and law graduates has lead to a lowering of the bar pass rate and a glut of young people with law degrees without law-related licenses. There are also complaints by some legal educators that the quality of law school graduates has nose-dived. Whether that in fact is true, it is perceived as being true and the government feels some solution needs to be put forward.
One proposed solution is the adoption of an "American-style" legal education system. This involves changing the rules so that only candidates with graduate degrees in law, not undergraduate degree holders, would be eligible to take the attorney exam. As part of this approach, there is a related proposal to have only one law-related exam that would cover prosecutors, public defenders and attorneys.
Guardians of the Law
One of the roles mentioned earlier in this article is attorneys acting as guardians of the law. Attorneys, both working as individuals and working through attorney associations, over the past decade have taken a more prominent role in the advancement and reform of the legal system. The National Bar Association, the various county bar associations and a number of NGO groups such as the Judicial Reform Association, have all contributed to changes in the legal system. These associations have lobbied for changes in both the procedures and the substance of Taiwan's law with the goal of creating a strong rule of law and increasing the role of attorneys in Taiwanese society. These groups have uniformly looked to a US model on which to pattern changes and have attempted to link the ideas of human rights, democracy and a strong rule of law with the idea that these things can best be guaranteed by an American-style role for attorneys.
Commentators who are perhaps less enamored with the US attorney system have noted that there is little concrete proof that enlarging the roles of attorneys does anything to guarantee human rights or respect for the law. In contrast, increasing the roles of attorneys may simply lead to a more litigious society and may in fact disrupt the social fabric and lead to social unrest, high costs and all the other deficiencies of the American system. Cynics might also note an obvious conflict of interest when the bar associations who are pushing for an increased role for attorneys also stand to reap the financial advantages of that increased role.
Providing Legal Aid
One place where Taiwanese attorneys are certainly putting forth a positive image is in the area of legal aid. The Legal Aid Act was passed into law in 2003 and the providing of legal aid services began in summer 2004. The legal aid program provides various types of legal assistance to those who are unable to afford an attorney.
The legal aid system is administered through a nationwide Legal Aid Foundation which is jointly funded by the government, the bar associations and community groups. Currently, there are 19 branch offices throughout Taiwan. The program seems to be a public relations success as the foundations' latest annual report shows that with regard to "satisfaction with the legal aid lawyers of the Foundation: 63.3 percent of recipients are very satisfied; 25.3 percent are satisfied; 5.8 percent rated it acceptable and 1.6 percent rated as very dissatisfied." Those are high levels of satisfaction for any legal aid office and such statistics reflect well on the newly minted program.
Saint Thomas More's perfect island, his island of Utopia, had no attorneys. As he famously wrote: "They have no lawyers among them in Utopia for they consider them as the sort of people whose profession is to disguise matters." The island of Taiwan hopes to take the opposite route to Utopia by not only having lawyers but raising their place in modern Taiwanese society. As to the wisdom of that, time will tell.
A History of Attorneys in Taiwan
During Qing-dynasty rule in Taiwan there were several types of what can be described as "proto-attorneys," meaning people who represented or assisted litigants with their legal matters. There were "proxy filers" called baogao in Chinese. These were people who did not have any formal training but acted as proxies for others who did not wish to undergo the rigors of handling a court case themselves. There were also scriveners (daishu) who were government employees who wrote out accusations or complaints for the public based on what the person told them. This was done without charge to the public.
Both of these groups exist in modern-day Taiwanese courthouses. It is common for judges to allow proxies among family members. And all courthouses have what are termed in English "litigation counselors" who are, in a loose sense, the latter day versions of the scriveners.
In Qing-era Taiwan, there were also what were known as songshi or sunggun which in English would be "litigation specialists" or, less flatteringly, pettifoggers. They were generally minor degree holders who had self-educated themselves in the law. For a fee they would assist litigants in the strategy and tactics they should pursue in their cases. The Qing government took a dim view of this practice but nonetheless allowed them to operate.
The modern, post-Qing dynasty history of attorneys in Taiwan has two starting points. The island of Taiwan was under Japanese control from 1895 to 1945. During that time the first modern licensed attorneys arrived in Taiwan. The Taipei Advocates Union was formed as Taiwan's first "bar association."
At about that same time, on the Chinese mainland, the Republic of China was establishing the first modern Chinese attorney system. In 1912 the direct ancestor of Taiwan's current Lawyer Law went into effect in China. The ROC bar was opened to women in 1927 and when the Kuomintang arrived in Taiwan after World War II they brought with them the attorney regime from the mainland. Taiwanese attorneys were prominent during the transition from martial law to democracy during the 1980s and since that time the Taiwanese bar associations have been at the forefront in the defense of human rights, civil liberties and the rule of law.
Brian Kennedy is an American attorney living in Taiwan where he writes on criminal justice and human right issues. Elizabeth Guo is a professional translator specializing in law-related translations.
Copyright (c) 2007 by Brian Kennedy and Elizabeth Guo