Michael S. Greco
American Bar Association President (2005-06)
Address to the Shenzhen Lawyers Association
“Reflections on the Legal Profession in the United States and China”
Shenzhen, China
December 6, 2012
It is my pleasure to be with you, my colleagues in the Shenzhen Lawyers Association,
and to have the opportunity to share my “Reflections on the Legal Profession in the United States
and China.”
I will share my perspective with you by reflecting on my life and work experiences in the
US as a trial lawyer, arbitrator and mediator with the global law firm K&L Gates, LLP, which
has offices in five Asian cities, and also my experience as president of the 400,000 member
American Bar Association (ABA) and now as Chair of the ABA Center for Human Rights
Advisory Council. Keep in mind that my perspective is that of a private lawyer with a western
legal and cultural frame of reference, which may differ from your perspective China.
You and I know that lawyers in both the US and China, indeed in all nations throughout
the world, are often criticized, wrongly blamed and, increasingly, punished unjustly. Those who
criticize lawyers and the legal profession in the United States are fond of quoting a line from a
play by the English playwright William Shakespeare, Henry the Sixth, Part 2, which was written
in the year 1591. In Act 4, Scene 2, of that play one of the characters says, “The first thing we
do, let’s kill the lawyers.” Some interpret those words as meaning that Shakespeare had low
regard for lawyers, and that society can do without lawyers. But a careful reading of the scene in
which those words are spoken and their context reveals that Shakespeare in fact was praising
lawyers.
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In the scene the characters are plotting to create instability and upheaval in their
community, for personal gain. Shakespeare, through the characters, is saying that in order to
create instability in society, the first thing that has to be done is to eliminate the rule of law. And
since it is lawyers who protect the rule of law, and the rights of those whom the rule of law
protects, it is necessary first to eliminate the lawyers. Stated differently, lawyers protect the
justice system in society, and without lawyers there is no workable justice system, and there is no
harmonious society.
The US Constitution, arguably the most important document protecting the rule of law
for the American people, mentions only one profession – the legal profession. The Sixth
Amendment of the US Constitution guarantees that any person in America whose liberty is at
risk in a criminal proceeding must and will have the assistance of a lawyer, whose fee is paid by
public funds.
There is a strong public interest culture in the US, going back to the 1776 American
Revolution, of lawyers providing legal services to persons whose rights need protection and who
are unable to pay a lawyer’s fee. John Adams of Massachusetts (where I practice law and live),
a Founding Father of the new nation, and later the second US president, who drafted the
Massachusetts Constitution upon which the US Constitution is based, set the example that all
lawyers have followed for more than two centuries when he volunteered to represent, at their
criminal trial, the hated British soldiers who had fired upon and killed American colonists in
Boston, winning acquittal for a number of them but incurring the anger and hatred of American
colonists for doing so. His strongly held view was that no matter how horrible the crime, or how
despicable the accused criminal, or how unpopular it might be for the defense lawyer to provide
legal representation, in a democracy the right to freedom of each citizen must be protected with
the assistance of a lawyer.
During my term as president of the American Bar Association I appointed the ABA
Commission on a Renaissance of Idealism in the Legal Profession, in order to remind, and
persuade, US legal employers to provide sufficient time for lawyers to perform public service of
various kinds, and to provide legal services to poor persons without charging a fee – what is
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referred to as “pro bono publico” representation. The ABA Model Code of Professional
Responsibility – the ethical code for lawyers that has been adopted in virtually every State
jurisdiction in the US – contains a provision urging lawyers to provide at least 50 hours of pro
bono legal representation each year. I understand that a similar rule exists for lawyers in China.
I also appointed the ABA Task Force on Access to Civil Justice to consider an idea that
has been embraced in many nations throughout the world for more than a century: providing a
lawyer to vulnerable persons in society, at public expense, to protect their rights in civil
proceedings that are basic to human existence, such as child custody, shelter, health, sustenance
and safety.
Now at the ABA Center for Human Rights I oversee a number of human rights projects,
including the Justice Defenders Program, which provides pro bono assistance to human rights
lawyers and activists in countries throughout the world who face governmental retaliation and
persecution because of their advocacy efforts on behalf of persons wrongly being punished by
governments. You and I know that lawyers who take up the cause of human rights often are
themselves subjected to punishment and persecution.
I. The American Bar Association
The American Bar Association was formed in 1878 and, unlike bar associations in many
countries, it is not an agency, or part, of the government. The ABA is an independent nongovernmental organization. The ABA’s policy-making body is a broadly representative 550member House of Delegates, where twice a year policy recommendations are debated and voted
upon.
The Statement of Mission of the American Bar Association, which appears as an
Addendum at the end of these remarks, contains Four Goals, each one having specifically stated
Objectives. Goal IV is to “Advance the Rule of Law.” The five objectives of Goal IV are to:
(1) Increase public understanding of and respect for the rule of law, the legal process, and the
role of the legal profession at home and throughout the world; (2) Hold governments accountable
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under law; (3) Work for just laws, including human rights, and a fair legal process; (4) Assure
meaningful access to justice for all persons; and (5) Preserve the independence of the legal
profession and the judiciary.
The ABA website provides an overview of the many ABA programs that serve to
implement the Four ABA Goals, programs to which ABA members – most of whom are lawyers
in private practice throughout the US -- voluntarily devote their time, skills and expertise to work
on. The programs include these:
- protecting the independence of the judiciary;
- protecting the independence of the legal profession;
- evaluating the qualifications of persons nominated by the US President to serve as
judges on the federal court;
- improving legal education and accrediting law schools;
- protecting the civil rights of individuals and minority groups;
- protecting the environment;
- providing legal services to the poor;
- advocating in the US Congress and state legislatures for legislative reforms;
- opposing proposed legislation that is not in the public interest; and
- opposing policies of the US government that violate the US Constitution.
II. ABA Collaboration with other bar Organizations
The ABA has strong collaborations with bar associations in all fifty US states, and with
other national bar associations around the world.
It was my pleasure as ABA president to get to know and work with the leaders of those
national bar organizations, especially my good friend Yu Ning, President of the All China
Lawyers Association (ACLA). President Yu and I negotiated and executed a Memorandum of
Understanding between the ABA and ACLA that addresses subjects such as joint educational
programs and exchanges of lawyers and information. The MOU is still in force between the two
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national bar associations, and President Yu and I have stayed in touch and continue our
friendship.
III. The ABA Center for Human Rights
The ABA Center for Human Rights is the entity within the ABA having primary focus
and responsibility for the ABA’s human rights activities. The Center’s web site provides
information about the many programs, projects and activities of the Center, and I invite you to
visit the web site.
As I have worked on human rights issues around the world, I have been encouraged by
the increasing level of collaboration between lawyers across national borders, and the increasing
prevalence of human rights law in domestic jurisdictions and the international arena. At the
same time, I have seen an alarming rise in the use of judicial process, discriminatory legislation,
and executive orders aimed at silencing and punishing lawyers and others who advocate for
human rights.
For example, during pro-democracy protests last year in the Kingdom of Bahrain, a
courageous lawyer named Mohammed al-Tajer was the subject of frivolous, trumped-up charges
of “inciting hatred” in retaliation for his efforts to defend the rights of political dissidents. He
was detained, held incommunicado, tortured and tried in a military court characterized by
procedures that violated basic principles of international due process and fair trial rights.
The international community reacted with outrage to Mr. al-Tajer’s case and numerous
cases like his in Bahrain. Many organizations, including the American Bar Association, called
on the government of Bahrain to, at minimum, provide him with a fair trial in a civilian court. In
response to the outrage expressed by the international community, Mr. al-Tajer’s case was
transferred to a civilian court earlier this year, and the most serious charges against him were
dismissed.
The al-Tajer case illustrates the importance of an independent legal profession on the one
hand; and on the other hand the efforts of oppressive governments to curtail that independence,
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to intimidate, punish and silence lawyers, to falsely charge and prosecute lawyers and imprison
them, so that the government can maintain power and continue to violate human rights without
being held accountable.
The ABA was involved in this case through the ABA Center’s Justice Defenders
Program. The Center’s work occurs both outside and within a subject country, and once the
Center learns from local defense counsel what is needed to help defend the human rights
advocate, the ABA and its partners provide assistance. The assistance typically includes
providing international legal research and drafting that can be added to defense counsel’s
domestic legal arguments. Other times, the ABA will submit a written expert declaration or
opinion on international law to be filed with the local, regional or international court.
The International Criminal Court (ICC) Project is the Center’s newest project, and it has
grown quickly since its inception late last year. The ABA during the past thirty years has
adopted a number of policies supporting the idea of an international criminal tribunal, and in
1998 endorsed the adoption of the Rome Statute, the international multi-lateral treaty that
established the ICC.
The Project’s purpose is to improve the relationship between the International Criminal
Court and the United States through various forms of educational engagements. To date, 121
nations have ratified the Rome Statute. While the US, China, Russia and the US have not yet
ratified the Statute, the US does provide various forms of support to the operations of the Court.
To help expand the US-ICC relationship, the ICC Project – working closely with the
leadership of the ICC, including the President, Prosecutor and Registrar, as well as ICC judges,
lawyers and staff, and also with US government officials – has recently begun to implement
three types of educational engagements.
The first type of engagement is training, in which the Project will train ICC lawyers,
judges and staff on necessary investigative and prosecutorial skills, and on specific areas of
relevant law.
The Project will also hold educational training programs for American and
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international criminal practitioners to engage on various legal skills and topics, such as oral trial
advocacy, in order that the practitioners may learn from each other.
The second type of engagement of the Project is to convene in Washington, DC,
educational programs where members of the US government, members of the ICC, and experts
on international criminal justice can exchange candid views, debate differing viewpoints, and
educate each other on issues such as the jurisdiction of the ICC to investigate, charge and
prosecute crimes within the ICC’s mandate, and to foster a clearer understanding of what the
ICC is, and is not; and what the ICC does, and cannot do.
The third type of engagement of the Project is to advocate for greater involvement and
support by the US for the International Criminal Court and its important work in protecting a just
rule of law and human rights in the global community.
I mentioned earlier that the ABA has more than 400,000 members. Those members come
from large global law firms such as mine, K&L Gates LLP, which has more than 2200 lawyers
in 45 cities in the US, Asia, Europe and Latin America; from medium-sized and small law
offices; from corporate in-house law departments; from law schools, and solo lawyers. ABA
members practice or engage in every conceivable area of the law – including trial lawyers,
prosecutors and defense lawyers, corporate and transactional lawyers, intellectual property
lawyers, tax lawyers, merger and acquisition lawyers, environmental lawyers, among many other
areas.
These lawyers willingly volunteer their skills, expertise and experience in order to
participate in the types of ABA public service projects and programs that I have described.
While their backgrounds and legal expertise may differ widely, these lawyers all have some
important things in common: a commitment to public service; a desire to use their training and
experience for the public good; and a shared ethical responsibility to provide legal assistance free
of charge to protect the rights of poor and vulnerable people.
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Confucius, China's famous teacher, philosopher and political theorist, provided these
words of guidance for all people, including lawyers:
He who exercises government by means of virtue may be compared to the north polar
star, which keeps its place, and all stars turn towards it. … To be able, under all
circumstances, to practice five things constitutes perfect virtue: these five things are
gravity, generosity of soul, sincerity, earnestness and kindness.
And so Confucius, who was born in China in 551 B.C., the Englishman William
Shakespeare, who lived in the 16th Century, and the American John Adams who lived in the 18th
Century, by their words and actions underscored the importance of lawyers performing public
service and protecting the legal rights of people.Today public service is a fundamental mission, a
defining quality of the legal profession in most nations. Lawyers throughout the world every day
perform public service in the communities where they live, for the good of all who live in those
communities.
In preparing these remarks I read the Articles of Association for the Shenzhen Lawyers
Association, and the other documents that appear on the Association’s website. I was pleased to
read that the Purpose of the Shenzhen Association of Lawyers includes this language:
“endeavor to build a team of lawyers who are adherent to convictions, justice and
bona fide and well versed in laws, so as to make contribution to the social
civilization and progress.”
It is precisely the importance of “lawyers who are adherent to convictions, justice …so as
to make contribution to the social civilization and progress” as stated in your Association’s
statement of Purpose that I am speaking about today, and that creates a strong bond between my
colleagues in the United States and my colleagues here in China.
I am confident that you in this audience are very hard-working, competent and skilled
lawyers in your chosen fields of law. You have opportunities to become productive lawyers,
well-compensated lawyers, and naturally you, as do lawyers in the US, strive for a successful
legal career, in order to do well for yourselves and your families.
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As leaders in our profession and in your communities, you, as US lawyers do, also have
opportunities to do good – to stand up to injustice, to protect the rights of fellow citizens in labor
cases, such as migrant workers in Shenzhen, to protect the environment for your children and
their children, to defend lawyer colleagues who defend human rights from being persecuted or
disbarred, to support the delivery of legal aid in Shenzhen to those in need, to use your legal
training to help people in need of legal assistance on a pro bono basis – free of charge -- who
cannot pay for that assistance. I ask you not to be deaf and blind – not to turn your back on those
opportunities and obligations. The great lawyers in all nations throughout history have done
both well and good.
It is the lawyers of the United States who have ensured the survival of the now 236-year
old democracy in America. Democracy in the US would have died many times but for the
efforts of lawyers, and the legal process, in maintaining what in China today is referred to as the
“harmonious society” and “societal balance.” At times when democracy has been at great risk in
the US it has been the lawyers who have maintained harmony in society and societal balance.
How have the US lawyers done it?
By safeguarding the institutions that ensure that justice exists. And when justice exists,
stability in society follows. A good example illustrates my point: the 1960s in the US. In the
first half of that decade I was a university student. My memories of the social upheaval in
America, and of the violence relating to the civil rights movement, are still vivid in my memory.
Black Americans and white Americans alike who were frustrated, angry and impatient that civil
rights had been denied for centuries to people of color, to women, and to members of minority
groups were now taking to the streets using violence and destruction to assert their rights and
their dignity as human beings.
President John F. Kennedy recognized that the civil rights movement had to be a legal
movement, one fought in the courts and not in the streets; that it had to be led by lawyers and not
street fighters. He was upset because the legal profession was moving too slowly to recognize
that fact. And so on June 21, 1963, he called a meeting at the White House to which he invited
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250 leaders of the legal profession from throughout the United States, including the President of
the American Bar Association.
At the meeting President Kennedy spoke forcefully about his disappointment and
frustration that the civil rights movement was not yet a priority for lawyers, and he demanded
that it become a priority; that the country needed the leadership and skills of lawyers to help stop
the violence, to protect rights, and to help devise needed legislative solutions to the violent
killings and social upheaval that was occurring. Within days of the meeting at the White House
the legal profession responded. The Lawyers Committee for Civil Rights under the Law was
established, as was the American Bar Association Committee (later the Section) on Individual
Rights and Responsibilities, as well as other new legal entities throughout the US, to represent
citizens in the civil rights movement, to calm the country, and to help devise pragmatic solutions
to the national crisis.
These lawyers in the 1960s had role models who had been at work on civil rights issues
during prior decades. The great civil rights and human rights lawyer Thurgood Marshall was one
of those role models. A courageous trial lawyer during the 1930s, 1940s and 1950s, Marshall
represented countless black Americans in numerous important civil rights cases in the federal
courts, including the landmark US Supreme Court case Brown v. Board of Education, decided in
1954. Later to serve as the first black American appointed to the US Supreme Court, Marshall
the trial lawyer recognized that the solution to discrimination in the US of blacks and other
minority group members, and to the threat to the continuation of democracy in America, was not
violence in the streets but the use of law in the courts, and legislation enacted by Congress.
Thurgood Marshall and lawyers like him not only secured human rights for all
Americans, but in a very real sense they saved the Republic from destruction -- destruction not
by foreign enemies, but from the boiling forces within the US itself that could have led to
revolution. The efforts of those lawyers, and of courageous federal judges, particularly in the
South, and of lawyers who drafted legislation that Congress enacted in the 1960s such as the
Civil Rights Act and the Voting Rights Act, among others, were absolutely necessary in
advancing rights, maintaining societal balance and preserving a harmonious society in the US.
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If you look to any area of social progress in the US during the past two centuries you will
find that it was lawyers – an independent legal profession, an independent judiciary, and lawyers
in Congress who crafted legislative solutions – that made the social progress possible. The
public service role of lawyers is interwoven in the very fabric of America.
IV. Conclusion
I conclude with these final reflections.
Seventeen centuries before Christ, in the first written Code of Law, Hammurabi wrote
that “the purpose of the law is to protect the powerless from the powerful.” I believe that that is
still the purpose of the law.
No matter in what area of law you practice, vulnerable people may seek your legal help
to protect their rights; and many of them will not be able to pay for your legal services. Use your
training, your skills and your caring to help those people protect their rights. The satisfaction
you will experience by righting a wrong, by ending suffering, and by protecting the dignity of a
fellow human being, will not only give great meaning to you as an individual, as a lawyer it will
be your important “contribution to the social civilization and progress” of your community and
country.
That is the highest calling of our profession and of lawyers – in both the United States
and in China.
Thank you for your kind attention.
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ADDENDUM TO MICHAEL S. GRECO REMARKS TO THE SHENZHEN LAWYERS ASSOCIATION ON DECEMBER 6, 2012 The American Bar Association Mission To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession The ABA achieves its mission through tireless work toward four goals. Goal I: Serve Our Members. Objective: 1.
Provide benefits, programs and services which promote members’ professional growth and quality of life. Goal II: Improve Our Profession. Objectives: 1.
2.
3.
Promote the highest quality legal education. Promote competence, ethical conduct and professionalism. Promote pro bono and public service by the legal profession. Goal III: Eliminate Bias and Enhance Diversity. Objectives: 1.
2.
Promote full and equal participation in the association, our profession, and the justice system by all persons. Eliminate bias in the legal profession and the justice system. Goal IV: Advance the Rule of Law. Objectives: 1.
2.
3.
4.
5.
Increase public understanding of and respect for the rule of law, the legal process, and the role of the legal profession at home and throughout the world. Hold governments accountable under law. Work for just laws, including human rights, and a fair legal process. Assure meaningful access to justice for all persons. Preserve the independence of the legal profession and the judiciary. 12