From Asia: A discreet silence - Anthony Lin
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In America, firms compete for controversial and high-profile pro bono matters. In Asia, the same firms have been more pragmatic, tending to keep a low profile. But international law firms may have to strike a balance between commercial interests and the political passions of their Asian employees.
Last spring’s tumult over King & Spalding’s withdrawal from representing the US House of Representatives in defence of an anti-gay marriage law served as a reminder of the difficulties American law firms can face when taking on politically controversial matters. In Asia, it also served as a reminder that law firms can take on politically controversial matters in the first place.
Some lawyers in Asia are deeply involved in political controversies, but they are typically not employed by major firms. In China, several human rights lawyers were arrested in a crackdown this spring. Others face ongoing official harassment. The International Bar Association’s Human Rights Institute has called for the Chinese Government’s persecution of human rights lawyers to end. But the legal profession in Asia itself has been silent on that and other hot topics.
In the United States, firms often compete for controversial but high-profile pro bono matters, like appeals on behalf of death row inmates or Guantánamo Bay detainees. Ask partners from the same firms about their lack of engagement with big issues in Asia and you get different responses. ‘Our Asia practices are mostly transactional, whereas most crusading lawyers are litigators.’ ‘We are guests here and it would be inappropriate to get involved in our host nation’s affairs.’ ‘We can’t do anything that would compromise our ability to service our clients.’ ‘Are you serious?’
This all makes perfect sense for the firms. But, as with Paul Clement at King & Spalding in the gay marriage law flap, it’s usually individual lawyers who drive their firm’s involvement in controversial matters. The legal profession has traditionally attracted its share of bright and passionate people. While expatriate lawyers rotating through Asia are unlikely to become activists about anything beyond their tax treatment, top international firms now focus more on building practices in the region with locally recruited lawyers. Can firms operating in Asia really expect these lawyers to remain strictly focused on the work before them and not the world around them?
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Perhaps for now. The risk factors are pretty stark, after all. Leaving aside the threats of jail and harassment facing human rights lawyers in China, attorneys at firms would more likely fear the loss of business. Could criticising, say, the Chinese Government lead to less work from Chinese State-owned companies, or even private companies, foreign and domestic, eager to avoid controversy themselves? Why even chance it?
Still, the imperative to keep one’s head down may not always carry the day. The move into Singapore politics by Davis Polk & Wardwell partner Show-Mao Chen offers a hint of the future. A top capital markets partner in Davis Polk’s Beijing office, Chen led his firm’s work on deals like last year’s US$22bn initial public offering of the Agricultural Bank of China. But earlier this year, he threw his hat in the ring for a parliamentary seat in his adopted homeland of Singapore. And he did it as a member of the opposition Workers’ Party (WP).
‘Top international firms now focus more on building practices in the region with locally recruited lawyers. Can firms operating in Asia really expect these lawyers to remain strictly focused on the work before them and not the world around them?’
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Singapore is not China, but opposition politicians have faced harassment there, most commonly in the form of libel suits. Politics have long been dominated by Lee Kuan Yew, prime minister from 1959 to 1990 and the ‘minister mentor.’ The current Prime Minister, Lee Hsien Loong, is Lee Kuan Yew’s son; his People’s Action Party held 82 out of 84 seats in Singapore’s Parliament until May’s election. Chen argued that Singapore needed a stronger opposition to increase the ruling party’s transparency and responsiveness, and his presence electrified the campaign. Six WP candidates, including Chen, won seats, the best showing for an opposition party in Singaporean history.
Chen has retired from Davis Polk, which has no Singapore office. If the firm did, it might not be thrilled to have a leading opposition politician as its top partner there, when the Government controls a good chunk of the potential client base through its Temasek Holdings Pte Ltd and Government of Singapore Investment Corporation Pte Ltd (GIC) funds. But the time will come when more international firms may have to strike a balance between their commercial interests and the political passions of their Asian employees.
The outcome of such calculations may seem foregone at the moment. Sometimes, though, it doesn’t take too many politically engaged lawyers to bring change to the status quo. Just ask the voters of Singapore.
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Anthony Lin is chief Asia correspondent for The American Lawyer and editor of The Asian Lawyer (www.theasianlawyer.com), where a version of this article first appeared. He can be reached at alin@alm.com.
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