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China Criminal Law Matter? I’ll Get Barack….

China FCPA

One of the interesting things about the exposure our China lawyers get from this blog is that we get contacted by all sorts of people with China law problems. This is mostly good because it can lead to real work. This is also good because even when it does not lead to real work, it provides great blog fodder. Like today.

A while ago (I am going to be really vague on everything here for obvious reasons) I got an email from someone whose relative had been arrested in China on a criminal law violation. The email went something (again, I am changing things to hide any potential identifier, but the gist is there) like this:

A family member was doing business with China as a middle man. He was getting his goods from all over Europe and the United States and then selling them in China. They turned out to be fakes. Without knowing this, he went to China on other business and some of the businesses that got the fakes from him had him arrested. There is no way to reach the people that sold the fake goods to him and the prosecutor is demanding we compensate everyone for all their losses. He is now going to be tried in a Chinese court and if he cannot provide the money to pay back the victims he will be incarcerated. Is there anything we can do to bring him home?

I responded with something like the following:

We would need to know a lot more about the situation to know how best to handle it. We would certainly need to know a lot more to be able to make even the roughest predictions regarding the likelihood of being able to keep him out of jail.

1. Is your family member a US citizen?

2. Has he contacted the US Embassy or a consulate?

3. Does he speak Chinese?

4. Has he retained a Chinese lawyer?

5. Do you know the exact charges being made against him?

6. Does your family member have evidence showing he did not know he was selling fakes? This may or may not be relevant, as it may depend on the actual charges being made against him. My law firm has handled a number of counterfeit cases and one of the best proofs is oftentimes that the person (your family member) paid an amount that indicates he thought the goods were real. For example, if he paid $100 for an item and then resold it for $1000, that would not be good. but if he paid $950 and resold it for $1000, that would certainly help.

7. In what city in China is this happening?

We can definitely assist you on this, but the key is to move quickly and decisively. Anything your family member says could end up hurting him. We have worked closely with Chinese criminal lawyers on international criminal matters and we would work with the appropriate one on this case to do everything we could to get your family member released. Our assistance would be focused on finding the right Chinese criminal lawyer, on helping that lawyer, especially with any relevant facts outside China, and in working as a bridge between your family member and the Chinese criminal lawyer and between you and the Chinese criminal lawyer. But our assistance is not going to be cheap because we are not going to take a case like this on without first getting a green light to do everything we can to prevail.

If you are interested in proceeding, let’s talk more. If not, I completely understand and I wish you and your family member the best.

So far, so good…. right?

Here was the emailer’s response to me:

He speaks Chinese and he already has a Chinese lawyer. He contacted the US embassy/consulate, who told him to retain a lawyer and he has had no further contact with them. His Chinese lawyer believes he is guilty. I’m interested solely in getting him out of China, without having to serve a prison sentence. I would be interested in proceeding only if this was possible.

My response to that was as follows:

Yeah sure. We can promise you that no matter how guilty he is, no matter how much proof there is against him, no matter where in China this is, and, most importantly, no matter what the charges are against him and no matter what the standard prison sentence is for those charges, we can get him out of China within a week.

We can do that one of the following two ways.

I will call up my President Obama and ask him to intervene. I would call Joe Biden, but I still have trouble getting past the fact that he got his law degree by cheating in law school. Hillary Clinton might also be good because and I have some cred built up with her (that’s a long story). Plus, both Barack and I started our careers in Chicago, so I am sure he will be sympatico. I do not know President Obama personally, but if I go to the White House, I’m sure he will see me and be happy to assist.

Alternatively, we could just bribe the prosecutor. But please understand that for that I will be putting my freedom and my career at extreme risk so that will cost you at least USD $2 million, which will not include the amount the Chinese attorney and prosecutor will require. If you do choose to go this route, please destroy all written evidence that I mentioned this to you.

I look forward to your response.

Okay, I admit it, that was the response I wanted to send but instead I just said something about how if they were interested in our assisting, we would be happy to do so, but there is absolutely no way we can make any guarantees on results and there are no magic bullets.

I have no idea what ended up happening with this guy. . . .

11 responses to “China Criminal Law Matter? I’ll Get Barack….”

  1. I wouldn’t be so harsh, and also this is a very bad thing to have an e-mail conversation over. Anything emotional and sensitive needs to be done on the phone.
    Having been in this conversation when someone asks “Is there anything you can do for me?” they are probably crying, and the first hour a criminal lawyer meets with a client or a relative of a client, you need a box of tissue handy since they are going to be near tears. It’s really bad because often the lawyer has to tell the client stuff “No I can’t do anything for you.” that will make things go from near tears to total tears, and which point the paralegal hands the box of Kleenex.
    One thing that lawyers need to understand is that most people don’t understand the law, and they just don’t know what is possible or not. Even when someone *does* understand the law, they are just not going to be thinking clearly.
    Even if the lawyer can do nothing to influence the situation, just telling the family about the Chinese criminal process, what is happening, what is likely to happen (no matter how bad), and what isn’t is likely to help the family cope. I’ve seen situations where a family would hire a lawyer whose role was explicitly *not* to represent the defendant, but to provide independent advice to the family about what was going on.
    The most important thing that you can do is to provide the names of some criminal lawyers that you respect (i.e. who would *you* go to if *you* were in a Chinese jail).
    My main concern would be to make sure that the person finds someone that is competent and honest. There are a lot of incompetent lawyers out there, and a lot of lawyers that give unrealistic hopes about what is or isn’t possible. One problem in these sorts of situations is that the people that are likely to give the most hopeful statements are also the people that are likely to be the most crooked or incompetent.
    The other thing that you need to do is to give an good estimate of the fees involved. This makes a *big* decision as far as legal strategy. If the authorities want $X for restitution and it will cost 5 * $X in legal fees to fight, then just pay the money. (And the fact that you need an honest broker for all of this is why you need an honest lawyer.)
    One scene that I wish I would see in legal shows is where you have the relatives of someone accused of a crime in some lawyer’s office asking “so how much is this going to cost me if we do X, and what if we do Y?” Those are the real conversations that happen in law offices.
    Some day I’d like to write a dark comedy called “After Slasher” or “After Action Movie” about what really happens after they catch a homicidal maniac or what really happens after the big Hollywood gunfight.

  2. I have to agree you’re being harsh on this one. You can imagine the feelings this family member is going through.. This person may have never been to China, has only heard horror stories of rights abuses and injustices. All they know is that their loved one is in a horrible situation. There’s no one for them to go to, no recourse. They’re asking for urgent help. And then they see your blog entry about their situation.. They imagined they were confiding in someone they could trust. Please be a little more gentle.

  3. omg! buying fakes FROM Eu & Usa to sell in China? Thot the hullabaloo was always the other way around, ie, infringement of IPR by Chinese pirates on the mainland?
    the way I read it, my impression is that the relative thinks that the law is porous in China and wants the blogger to bribe the relative out of jail. The likelihood of rights abuses, injustice, doesn’t seem the first concern.

  4. Just imagine the same thing happening in US, you would have different feelings and (possibly) little sympathy towards this. After breaking law, and when even your lawyer thinks you are guilty, and probably you are indeed guilty, what’s the odd of ‘getting your freedom back’ in ANY country?
    People think they can walk away free of charge (and time in jail) after breaking the law in China, and feel they deserve sympathy (which people normally give them in such cases) and freedom are worthy of sarcasm IMHO.

  5. Put me in the cold bastard group. Chinese lawyer says he’s guilty, and I imagine both the person in question and his family members both know he’s guilty. And yet, there’s still the assumption that he can get out of China without doing time. I imagine there are people or lawyers with that much clout, but it’s sort of like a Gucci store or a high class hooker; if you have to ask, you can’t afford it.

  6. Wang: After breaking law, and when even your lawyer thinks you are guilty, and probably you are indeed guilty, what’s the odd of ‘getting your freedom back’ in ANY country?
    It depends on what you’ve done. OK, so suppose you are caught red handed selling counterfeit goods. Does that mean that you should go to jail for the rest of your life? Seems a bit harsh. Does that mean that you should get off scot-free. Probably not.
    In between the two there is some just penalty, and if you have a functioning legal system it will come up with something reasonable.
    Wang: People think they can walk away free of charge (and time in jail) after breaking the law in China, and feel they deserve sympathy (which people normally give them in such cases) and freedom are worthy of sarcasm IMHO.
    If you are perfect then feel free to laugh at other people. I’m not perfect so I have some sympathy for someone that aren’t. Personally I wouldn’t object to letting someone that sold counterfeit goods go with a fine and a warning if they are really sorry and promise not to do it again.
    The reason that you need a good lawyer is that if you are willing to say you are sorry, then you need someone to tell you want the consequences are of saying that you are sorry.

  7. Most people have watched too much Perry Mason and assume that the main job of a defense lawyer is to protect the innocent. It turns out that a lot of times that people are charged with crimes actually turn out to be guilty.
    In that case the defense lawyer’s role is still important because you need both prosecution and defense to make sure that you have a just outcome. OK, suppose your client is guilty of selling counterfeit goods. Now what? Do we just let the state decide to do whatever they want? Of course not.

  8. Agreed with 2fish. The role of a criminal defense attorney (which I know Dan is not), is in significant part to give a comforting shoulder to cry on. Even if your client is guiltier than sin, you don’t say “that sucks dude, try not to drop the soap,” While you don’t make promises you can’t keep, you can also convey the message with a certain finesse that avoids plunging your client into a bigger pit of misery.

  9. Tell me person in jail isn’t originally Chinese… probably immigrated to the West. Having passport, but never heart of American.

  10. Also I can also tell that Dan is not a criminal lawyer when he makes statements like
    Dan: But our assistance is not going to be cheap because we are not going to take a case like this on without a green light to do everything we can to prevail.
    In real life criminal cases both in the United States and China, a criminal lawyer simply cannot do everything possible to prevail. Most criminal cases in the United States are settled by plea bargain at which time the defense lawyer tells the client that going to trial will likely bankrupt them, prolong their agony, and could possibly lead to a much stiffer sentence. In China, you are more likely to get a shorter sentence if you show repentance and self-criticism. A lot of the world of a defense lawyer involves negotiation between the client and the state, and it’s best to try to keep this somewhat non-confrontation. By contrast, when a civil lawyer is asked to go to trial, it’s usually after the decision is made to win at all costs.
    The other factor is that maybe the client *shouldn’t* prevail. People that are guilty as sin deserve a fair defense, but it may in fact be the case that the defendant deserves what the prosecutions is offering. The purpose of the defense lawyer is to represent the interests of the client and to insure that the clients rights are protected and that due process is followed, but in the end it is right that the defendant should sometimes lose the case.
    Perry Mason is lucky. All his clients are perfectly innocent. In the real world, sometimes a defense lawyer ends up with a client that may be totally guilty of everything that he is being charged with. But the guilty have rights and interests too.

  11. “The purpose of the defense lawyer is to represent the interests of the client and to insure that the clients rights are protected.”
    Oh, I wish that was always true. I once asked a lawyer friend to help me in a case where a commodities crook had forged my signature (It’s a long story how it happened, but it was my age of innocence).
    She had to go out of town one day and asked her colleague to rep her in a meeting with the crook’s bosses. He probably hadn’t a clue about my case and wasn’t really interested (too small perhaps).
    After listening to the other party’s spiel, he decided that, yeah, they are probably right. Suffice to say I exited quietly.
    In this fake goods case, it isn’t about sympathy (or lack of) for the culprit or relative. Any goodwill is negated by the client’s attitude. One felony has been committed, so why worsen the situation with another?
    Sometimes there is a need to be cruel in order to be kind. In this case, both lawyers have been upfront with the relative. There’s no dead body in this crime, probably just some lousy bags, so the guy won’t get a lethal injection. A sharp slap on the wrist, maybe.
    Bite the bullet and hope for the best. Save the sympathy for some really hard luck stories.

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