Recently, a “case filing notice” circulating online showed that Wu Danhong was reported by the Jiangxi Provincial High People’s Court to the Beijing Municipal Bureau of Justice, on the grounds of allegedly illegally hyping the case and denigrating the case-handling authorities in court.
On April 23, the Beijing Lawyers Association filed the case based on this complaint. Two days later, Wu Danhong said in an interview with the media that he had received the case filing notice and would cooperate with the investigation.
Wu Danhong is the defense lawyer for the “Lao Rongzhi case” and also an associate professor at the Institute of Evidence Science of China University of Political Science and Law. Previously, he had reported that he was obstructed from meeting Lao Rongzhi.
Notice of Case Filing by Beijing Lawyers Association / Source: Shenzhen Micro Legal Affairs
Lao Rongzhi appealed after being sentenced to death in the first instance. In the second instance of the case, Wu Danhong appeared in court to defend, arguing that there was a lack of sufficient objective evidence to determine that Lao Rongzhi committed intentional homicide, and that Lao Rongzhi was an accomplice in the crime committed by Fa Ziying.
In November 2022, the Jiangxi High Court ruled to dismiss the appeal and uphold the original judgment, and reported the death sentence of Lao Rongzhi to the Supreme People’s Court for approval.
On March 22, 2023, according to public reports, the Supreme People’s Court’s “Death Penalty Review Tribunal” listened to the opinions of Lao Rongzhi’s defense lawyer in person, and the lawyer also submitted 282 pages of defense materials, totaling about 200,000 characters.
After that, the Jiangxi High Court reported Wu Danhong’s illegal conduct in handling the case to the Beijing Municipal Bureau of Justice. The case filing notice of the Beijing Lawyers Association showed that the Jiangxi High Court reported that Wu Danhong, during his tenure as the defense attorney for Lao Moumou, published multiple articles and comments through Weibo and WeChat public accounts, which allegedly involved illegal hyping of the case and improper remarks in court that denigrated the case-handling authorities.
On April 25, Wu Danhong told the media that he had not hyped the case during the period of representing Lao Rongzhi, but only forwarded a few articles written by others on his social media platform. He also stated that although he pointed out the procedural issues of the case-handling authorities in court, he did not “denigrate”.
The matter has attracted widespread attention after being reported. Some voices believe that defense lawyers often face risks in such criminal cases.
For example, in August 2021, criminal defense lawyer Zhou Xiaoyun was subjected to cross-provincial compulsory measures by the Panjin Municipal Public Security Bureau of Liaoning Province on suspicion of provoking trouble. The cause was that Zhou Xiaoyun and two others released false information about the case online. In the end, because “the consequences have not yet reached the extent of causing serious public order chaos”, the Panjin City Panshan County Procuratorate decided not to approve the arrest.
Before the Zhou Xiaoyun incident, the famous lawyer Zhou Ze, after publicly releasing several videos on Weibo, pointed out that the Hefei police had committed acts of torture to extract confessions and illegal handling of cases, and was reported by the Hefei Public Security Bureau to the Beijing Chaoyang District Bureau of Justice. After review and hearing, the Chaoyang District Bureau of Justice gave Zhou Ze an administrative penalty of a one-year suspension of practice.
This makes many people feel that criminal defense lawyers have become a high-risk profession. Especially for the discussion and information disclosure of their own cases, it is easy to step on the red line of violations.
The behavior of initiating discussions or comments on cases has its origins. For the handling of specific cases, bringing the case to public opinion may be effective, but it may also get out of control.
Or an illusion
From an observational point of view, criminal defense lawyers are often reported and punished, but in reality, this is not the case. “The judicial bureau and the lawyers association receive a large number of complaints from lawyers every year, and many of them are investigated and punished, but the proportion of criminal lawyers being complained and investigated is actually relatively low.” Lin Ling, a member of the Criminal Procedure Law and Criminal Defense Business Research Committee of the Shanghai Lawyers Association, told Nanfeng Window that the frequent investigations of criminal defense lawyers may be an illusion.
Ye Zusheng, an associate professor at the School of Law of South China University of Technology and a criminal defense lawyer, holds the same view. He believes that criminal defense lawyers are often investigated because they are often involved in criminal cases that attract high attention. Other types of lawyers, even if they are complained or investigated, cannot enter the public eye because they do not attract attention.
“But the fact that criminal defense lawyers are complained about and even criminally prosecuted also indicates some problems.” Ye Zusheng said that criminal defense lawyers may indeed be involved in business crimes in the course of litigation, and may also violate some professional discipline and be investigated, but the deeper problem is that “the case-handling thinking of some case-handling authorities has not changed”.
“They do not correctly understand the positive role played by defense lawyers in promoting the fair and objective handling of criminal cases, but instead believe that criminal defense lawyers are here to cause trouble, especially in some difficult and complex cases.” Ye Zusheng said.
Ye Zusheng said that this understanding is undoubtedly abnormal. In recent years, including the Supreme Judicial Authority, the Lawyers Association, etc., have repeatedly issued multiple documents to protect the professional rights and interests of lawyers. But according to Ye Zusheng’s personal observation, “in many cases, the rights and interests of defense lawyers have not been given due protection”.
He believes that if “the professional rights of defense lawyers can be given due protection, then I believe that many of the abnormal operations of defense lawyers in the eyes of the case-handling authorities will be greatly reduced”.
A little attention will reveal that whether it is the recent complaint and investigation of lawyer Wu Danhong, or the previous incidents of lawyer Zhou Xiaoyun being criminally enforced and lawyer Zhou Ze being suspended, the cause is that they published information or opinions on the criminal cases they represented online.
From a realistic point of view, lawyers, especially criminal defense lawyers, do indeed express more opinions on various cases and also accept more media interviews. Thus, a new question is, why are lawyers keen on speaking out on cases online or in the media, and is this behavior related to lawyers being complained and investigated?
Meng Fanzhuang, a professor at the School of Law of East China Normal University, told Nanfeng Window that lawyers are keen to speak out online, generally for the following considerations:
First, they want to handle the cases in their hands well and want to put pressure on the case-handling authorities with the help of online public opinion; second, they want to expand their influence and improve their popularity through online speech; third, some lawyers cannot go through some normal procedures in the process of defense, and have to express their requests to the judicial authorities through online public opinion.
Lin Ling believes that bringing the case to public opinion may be effective, but it may also get out of control. “The perspective of the public on the issue may be completely different from that of the lawyer. The same thing, after you push it to the public opinion field, the final result is uncontrollable, and it may not necessarily help the case, but the possible loss of control will increase the risks of the lawyers.” Lin Ling said.
This risk comes from how to grasp the boundary between illegal hyping of cases and normal discussion of cases.
The boundary of expression
A former prosecutor and current lawyer who did not want to be named told Nanfeng Window that since the China Lawyers Association issued the “Rules of the All China Lawyers Association on Prohibiting Illegal Hyping of Cases (Trial)” (hereinafter referred to as the “Rules”) on October 15, 2021, many previously normal behaviors have become illegal behaviors. “Before this regulation, many lawyers would use methods such as organizing seminars or issuing open letters to express their opinions on the case. Now this is a violation and will be dealt with.” The lawyer said.
The “Rules” came into effect on the date of their issuance. The “Rules” are specifically designed to restrict lawyers from using the Internet or the media to illegally put pressure on case-handling authorities and influence the handling of cases in accordance with the law.
The “Rules” restrict lawyers from using the Internet or the media to illegally put pressure on case-handling authorities
Lin Ling said that the so-called illegal hyping behavior punished by the “Rules” is generally manifested as “malice” and “fabrication of facts”. But in reality, it is relatively easy to define the fabrication of facts, but it is more difficult to judge whether it is malicious, and the standards are somewhat vague.
Ye Zusheng believes that in reality, “many people have generalized the term hyping, mistakenly believing that as long as a lawyer speaks out publicly online, it is hyping.” He said that in fact, the judgment of illegal hyping mainly starts from two dimensions, one is the form of expression, and the other is the content of expression.
In form, expressing in an extreme, unconventional, sensational, and rendering way may constitute hyping. In terms of content, it must be a deliberate distortion of the facts of the case, or the fabrication of facts, the dissemination of false information, and defamation of case handlers, etc., to constitute hyping.
“Defense lawyers only constitute hyping if they are illegal in these two aspects. If defense lawyers normally express their opinions on the case, accept media interviews, or post their defense statements online, it is permissible, of course, on the premise that the case is tried in open court”. Ye Zusheng said that according to the law, except in special circumstances, the trial should be conducted openly, so the defense opinions of lawyers have the attribute of being public.
“Lawyers’ words and deeds should have a relatively large immunity,” Ye Zusheng told Nanfeng Window, “the current regulations are that lawyers’ words and deeds in court should not be held accountable unless they are deliberately defamatory or other serious illegal acts.”
At the same time, Ye Zusheng believes that from the perspective of the duties of defense lawyers, their scope of defense is not limited to the trial stage, but runs through the entire process of the litigation. Therefore, the true and objective statements of lawyers related to the case before and after the court hearing are also considered as normal performance of defense work and should not be considered as hyping.
Lin Ling also emphasized that the Lawyers Law stipulates that the defense opinions of the defense counsel in the trial process are not subject to legal accountability. Therefore, he feels that the Jiangxi High Court’s complaint against the defense lawyer of Lao Rongzhi on the grounds that he denigrated the case-handling authorities in court “may not be very appropriate”.
According to Lin Ling’s defense experience, the probability of a lawyer “denigrating” the case-handling authorities in court is very small, and it is more about questioning some procedures and behaviors in the case-handling process in court, “this is a very common phenomenon”.
“A lawyer cannot verbally abuse the judicial authorities in court, because you don’t have the opportunity to make this statement.” Lin Ling said that the most serious words and deeds of a lawyer in court may be to accuse the case-handling authorities of problems or errors in the case-handling process. “No matter how many, there are some innocent cases and many cases of non-prosecution and non-arrest every year, which shows that the investigation authorities or the procuratorial authorities have some omissions in their work.”
According to the Supreme People’s Court’s 2023 work report, in the past five years, 2,675 defendants in public prosecution cases and 2,097 defendants in private prosecution cases were declared innocent in accordance with the law.
Defending “bad people” is also defending everyone
Although the number of criminal defense lawyers being complained and investigated in reality is relatively small compared to other lawyers, another point that needs attention is that in the recent cases of criminal defense lawyers being complained and investigated, the complainants are mostly judicial authorities. Does this make it easier for lawyers to be punished?
Lin Ling told Nanfeng Window that there is no inevitable connection between the two. “It can only be said that if you are complained by the judicial authorities, then their degree of attention must be higher, but the final result still depends on the actual situation.”
In his experience, he has also encountered cases where judicial and administrative authorities have complained about lawyers, and in the end, the judicial bureau and the lawyers association investigated and found that the lawyers had no problems. “It’s not that as long as the judicial authorities complain, they must be punished.”
Lao Rongzhi’s defense lawyer Wu Danhong was complained by the judicial authority, the Jiangxi Provincial High Court, and has now been investigated by the Beijing Lawyers Association. Ye Zusheng told reporters that the Lawyers Association is the industry association of lawyers and mainly deals with it from the perspective of lawyers’ professional discipline and ethics.
After the Lawyers Association files the case, “the investigated lawyer will have a defense, and if necessary, a hearing may be held. After the hearing, the disciplinary committee within the Lawyers Association will hold a meeting to discuss and determine whether the behavior is a violation of the lawyer’s practice. If it is a violation, a punishment will be made, such as a warning, an order to make a review, or a suspension of practice for how long.” Ye Zusheng said.
While possibly being complained and investigated, criminal defense lawyers also face public animosity. Because they inevitably have to defend those “bad people” or “evil people” in the eyes of the public. This perfectly normal professional behavior may be seen as an unjust act of “taking people’s money and eliminating disasters for others” in the eyes of the public.
After lawyer Wu Danhong was investigated by the Lawyers Association, some netizens made negative comments such as “Wu Danhong is also desperate to become famous” and “this kind of lawyer is indeed a bad lawyer”.
Meng Fanzhuang, a professor at the School of Law of East China Normal University, said that defending the so-called “bad people” is also defending everyone.
“Whether a person constitutes a crime must be determined through legal procedures. Even if a person who is extremely guilty has committed a crime, he is entitled to the right to defense, and his trial must be based on facts and the law. The facts need to be proved by evidence. In the criminal proceedings of fact-finding and the application of law, the participation of lawyers can form a check on public power, which helps to promote judgment in accordance with the law and prevent the creation of wrongful convictions.” Meng Fanzhuang said.
Ye Zusheng said that lawyers are not actually defending bad people, but defending the law, defending the facts, and defending the evidence. In this process, lawyers are also defending everyone. “Because the law is applicable for a long time, everyone may become a criminal suspect who needs to be tried by law in the future because of intentional or negligent crimes. And whether everyone can obtain a fair trial under the law, the defense lawyer is an extremely important guarantee mechanism. Therefore, respecting defense lawyers is also respecting our own rights under the law.” Ye Zusheng said.
Many people feel that lawyers defending “bad people” is to exonerate them, but this is not the case. Lin Ling told Nanfeng Window that criminal defense does not take acquittal as its goal, its purpose is to allow the suspect to receive a fair trial. It is to punish the crime, not to over-sentence, nor to under-sentence.
This is just as Professor Dershowitz of Harvard University said: “One of the touchstones of whether a country has true freedom is its attitude towards those who defend the guilty and those who are despised by the world.”
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