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                Faculty / Legal Professional Ethics / Content
                Legal Professional Ethics
                Xiaobing Liu
                TIME: 2019-07-16|CLICKS:

                Curriculum vitaeof Xiaobing Liu

                Xiaobing Liu

                Professorat CUPL School of Law

                Director ofthe Judicial Reform Research Centre at CUPL School of Law

                Attorneyat Beijing Fahuan Law Firm


                Schoolof Law

                China University of Political Science and Law(CUPL)

                27 Fuxue Ave., Changping District,Beijing, China

                ZipCode: 102249

                E-mail Address:xiaobingliu@cupl.edu.cn


                Mobile Phone:13810570428

                1. Education Background

                Master of Law, Peking Normal University, Intellectual Property

                LL.M, the Pacific McGeorge School of Law in America, Legal Education

                Doctor of Law, China University of Political Science and Law, Procedure Law

                Post-doc of Law, Law School of University of Macau

                2. AcademicFields

                Legal Ethics, Criminal Procedure, Trial Advocacy and Clinical Legal Education

                3. Employment Career

                2008-2014: Director of the criminal legal clinicat CUPL School of Law

                2011-2012: Visiting Scholar at the Pacific McGeorge School of Law

                2013-2018: Director of the Department of Legal Ethicsat CUPL School of Law

                2009-:Director ofthe Judicial Reform Research Centre at CUPL School of Law

                1999-: Faculty member of the CUPL School of Law, successively serve as Lecturer of law, Associate Professor of law and Professor of Law and awarded National Prize for Legal Teaching Achievement in 2017

                2019: Visiting Professor at Pontificial Universidad Catolica De Valparaiso in Chile

                4. Social Service

                2014-2015: Vice mayor of Yao’an County

                2008-2014: Attorneyat Beijing Hanhua Law Firm

                2014-: Attorneyat Beijing Fahuan Law Firm

                2018-: Arbitrator at Beihai Arbitration Committee

                5. Research Achievements

                A. Main Books:

                Currently I published 7 academic books independently or jointly, including but not limited the following:

                (1)Axiology of Criminal Procedure, Press of ChineseProsecutors, July, 2009.

                Abstract: The value of criminal procedure is the basic problem in the field of process science. This monograph consists of seven parts, involving the essential factor of the criminal procedure, together with the value structure, the value aim, the value election, the value appraise and the value reconstruction. The former four parts deal with fundamental theory. And the later three parts deal with the positive analysis.

                (2)Trial Advocacy in the United States,CUPL Press, Dec. 2013.

                Abstract: This book consists of 7 chapters and explores into the historic development and practice skills of trialadvocacyin the United States, including the selection of jury, opening statement, direct examination, cross examination, argument and closing statement.

                (3)Global Issues of Legal Ethics, Beijing University Press, June, 2013.

                Abstract: This is a translation work. The original copy was jointly completed by James Moliterno and George Harris. Consisting of 6 chapters, this book covers the most important global issues in the field of legal ethics.

                (4)The Assessing System of Lawyers’Social Responsibility, CUPL Press, Aug. 2016.

                Abstract: This book deals with the assessing system of lawyers’social responsibility. As the outstanding innovation point, Chapter 6 of which outlines the criterions on how to assessing the quality of certain specific types socialresponsibilitycommitted by lawyers, such as legal aid, legal education, pro bono work and so on.

                (5)The Bottom Line of Legal Ethics, CUPL Press, July, 2017.

                Abstract: This is a bookanalyzingthe typical cases in the field of legal ethics. It can be used as a text book in law schools, as well as reading materials for practice lawyers.

                B. Main Articles:

                Currently I published more than 20 academic articles independently or jointly, including but not limited the following:

                (1)Exploration into Clinical Legal Aid,Justice of China, 2009 (10).

                Abstract: Clinical Legal Aid is a new type of legal aid, with the function of promoting legal education as well. On the basis of an illustration about the definition and its origin, this essay gives a thoroughly survey on its historical development in China. After that, this essay goes deeply into the realistic problems faced by clinic legal aid and tries to find out the available solutions, so as to give some significant advice to Chinese clinical legal aid and its sustainable development.

                (2)Legal Clinics and Legal Aid,Chinese Journal on Legal Education, 2008 (12).

                Abstract: Clinical Legal Education is a new type of legal education, with the function of legal aid as well. On the basis of an illustration about the definition and its historical development, this essay looks deeply into the relationship between clinical legal education and legal aid. After that, this essay tries to find out the problems and the solutions while clinical legal education supplying legal aid to society, so that it can give some available advice to Chinese clinical legal education and social legal aid.

                (3)Thoughts on Values of Criminal Procedure,Chinese Criminal Science, 2008 (1).

                Abstract:This essay implores into several fundamental questions on the values ofCriminal Procedure. Firstly, this essay gives a summary on the past research achievements in this field. Then, on the basis of summary, this essay makes some special comments, enclosing the definition of procedure value, the content of procedure value and the function of procedure value. In the end, this essay sets out the author’s unique opinions on the above thesis.

                (4) From Objectivity to Subjectivity: Reform Route of Chinese Procedure Law,Journal of Procedural Law Research, 2005 (7).

                Abstract: The science system of Chinese criminal procedure law has become a whole and full one after nearly a century’s evaluation. However, in the writer’s view, its inner feature remains the same as before even this system has been a much better one. Moreover, it has some outer shortcomings, such as the depending on and explaining of the code of procedure law as well as the according to the aim of the code. In spite of these shortcomings, the writer intends to reconstruct the system instead of refuse it in order to make it more perfect. Therefore, based on a thorough reviewing and analyzing of the system’s development, this essay has reasoned the necessity, probability and object of such a reconstruction, and moreover, raised anideal mode of this system.

                (5)Philosophical Thoughts on Humanized Legal Reform, Journal of Social Science, 2004 (4).

                Abstract: In fields of law and politics at present, one of the most frequently mentioned words is humanized legal reformation, which outlined the value choice of legal reformation. However, not all people have clear knowledge about its true connotation, its theoretic basis and its value aim. And even experts show little interest about these questions. So that’s just why this essay is written here—— to make an exploration about these questions and get a better answer.

                C. Thesis published in English:

                Clinical Legal Education in China and the Issue of Locus Standi in Criminal Defense is publishedin the United StatesatWillamette Journal of International Law and Dispute Resolution Vol.25, 2015(12).

                Abstract:Locus standi is the status of being qualified for appearance in court. This paper focuses on the practice ofpermittinglegal-clinic studentsthe opportunity to represent clients charged withcriminaloffenses,and urges the courts in China to grant locus standi to them.Although legal-clinic students in China have contributedconsiderablyto the work of general legal aid since the beginning of this century, they are stillpreventedfrom appearing beforethecourtsin the area of criminal legal aid,due to the lack of locus standi. As a result, the development of legal educationandthe improvement of social justicehave been hindered.This paperconsiders the issue of student representation for criminal defendants andwill be presented in four parts. Part one, reviewsthe development of clinical legal education and the contribution made by legal-clinic students to the work of legal aid in the past ten years. Part two,arguesthatthe failure to implement a system grantinglegal-clinic students locus standi,negativelyimpactssocial justice as well as legal education. Part three,summarizes the different attempts made by Chinese legal educators to overcome such an obstacle and recommendsemployingthemethods that have provensuccessful in the United States. Part four,suggeststhe operation oflegislative proposalsformakingsuch court rules in China. Finally, this paper urgesChinesecourtsto grant locus standiunder a student-practice modelto legal-clinic students as soon as possible (see attached).

                Clinical Legal Education in China and the Issue of Locus Standi in Criminal Defense

                Xiaobing Liu*

                Abstract:Locus standi is the status of being qualified for appearance in court.This paper focuses on the practice ofpermittinglegal-clinic studentsthe opportunity to represent clients charged withcriminaloffenses,and urges the courts in China to grant locus standi to them.Although legal-clinic students in China have contributedconsiderablyto the work of general legal aid since the beginning of this century, they are stillpreventedfrom appearing beforethecourtsin the area of criminal legal aid,due to the lack of locus standi. As a result, the developmentof legal educationandthe improvement of social justicehave been hindered.This paperconsiders the issue of student representation for criminal defendants andwill be presented in four parts. Part one, reviewsthe development of clinical legal education and the contribution made by legal-clinic students to the work of legal aid in the past ten years. Part two,arguesthatthe failure to implement a system grantinglegal-clinic students locus standi,negativelyimpactssocial justice as well as legal education. Part three,summarizes the different attempts made by Chinese legal educators to overcome such an obstacle and recommendsemployingthemethods that have provensuccessful in the United States.Part four,suggeststhe operation oflegislativeproposalsformakingsuch court rules in China. Finally, this paper urgesChinesecourtsto grant locus standiunder a student-practice modelto legal-clinic students as soon as possible.

                In China, with the rapid development of clinical legal education,legal-clinic students have made great progress in thefieldof legal aid,andhavebecome one of the important social forcesadvancinglegal aid. However, in the specific area of criminal legal aid, even if legal-clinic students have done most of the preliminary work(e.g.,legal consulting,legal research, andlegal writing), they are stillprohibited fromrepresentingtheir clientsbefore the court byrestrictions placed upon legal-clinic students underthe existing legal system..Inshort, legal-clinic students in China arenot grantedlocus standi for criminal defense.

                Locus standi is the status of being qualified for appearance in court.The lack of locus standiforlegal-clinicstudentsinthe area of criminaldefensehas long been an obstaclethat preventsstudentsfrommeaningfullyparticipatingin criminal legal aid in China.Under the current system,,whenlegal-clinic studentsprovide legal aid for a criminal defendant in a certain case,theymust stop providing assistancebefore the case goes to court due to his lack of locus standi. As a result, the defendant,without regard for his ability to pay, has tohire andpay for a practicinglawyer or wait desperatelyfor an indeterminate period of timefor the court to designate a free lawyer for him..Obviously,the present systemhindersnot only the developmentof legal education, but also the improvement of social justice in China.The disadvantages ofthesituationtroublesomelegal professionalsas well aslegal educators.Althoughsome individuals have reachedthecommon-sense conclusion thatlegal-clinic students should have theopportunitytoobtainpractical experience,by means ofrepresenting criminal defendants before thecourt, they still feel puzzled orperplexedon how to grant the locus standinecessary for the students to do so.

                For the purpose ofsolving this problem, this paper will make a groundbreaking argumentforgranting locus standi to legal-clinic students in criminal defense. This paper will additionallypresentdetailedlegislative proposals, so as to promote Chinese clinical legal education,andthereby further improve social justice.

                Part 1: Legal-ClinicStudents and Criminal Legal Aid in China

                The termlegal-clinic student’in clinical legal education is a termborrowedfromthe field of medicine and potentially usedfirstin the 1930’s when in-house clinical legal educationwas developed. At that time, for the purpose of improving students’practical skillsand providing experiential opportunities, some American law school professors began tomodelthe operating mechanism of medical clinics and initiated a new type of course named‘legal clinics.’Legal clinicsofferedexperiential legaleducationbypermitting students to providelegalrepresentationtoclients, most of whom were indigent.In thisway, legal-clinic students diagnose the legal problems and supply necessary legal aid forpredominately low-income individualswhile studying in the legal clinics.

                Although ithas beenonly a little more than ten years since clinical legal education was introduced into Chinathenumberof legal-clinic students hasquickly increased. According todatapublished bytheChinese Committee of Clinical Legal Education (CCCLE), in 2001,there were only 4 universitiesthathadopened legal clinics in China withanestimatedenrollment of fewerthan 100legal-clinic students; in 2004, the number of such universities reached 7, withanestimatedenrollment of fewer than500 legal-clinic students;by2007, the number of such universitieshadexpanded rapidly to 86, withanestimatedtotal ofmore than 9000 students enrolled,an average ofover 100 legal-clinic students per university; by the end of 2009, the number of theuniversitiesthatestablished legal clinics in China hadrisen to 128. During this period, someuniversitiesopened more than one legal clinic, and thenumberof legal-clinic studentswasestimatedto bemore than 13000. By the end of 2013, there were 167 law schoolsthathadestablishedlegal clinics, and the total number of Chinese legal-clinic students was conservatively estimatedto bemore than 16700,which accounted for about 6.65 percent of the total number of Chinese registered lawyers.

                With the rapidenrollmentgrowth, legal-clinic students have become an important social forceforcriminal legal aid and provided criminal legal aidinmanycases. For example, in 2013, it was estimated that legal-clinic students provided criminal legal aid for more than 5,300 cases,which accounted for approximately 2.39 percent of the total number ofcasesfor which criminal legal aid wasprovided throughout the whole country.Theselegal-clinic students have made considerable contributionsto the nation’s work of legal aid.

                In the field of criminal legal aid, legal-clinic studentshave demonstrated the ability to not only handle alarge quantityof cases, butto do so with a high level ofquality.The quality isassuredin three ways. First, with the growthin the number oflegalclinics, more and more outstandingstudentsenrollin legal clinics, some of whom are post-graduates, andsome of whom are selected from a number of senior undergraduates. Aftercompletingat leastthreeorfouryears of legal education, legal-clinic students have the necessary legal knowledgetoundertakecriminal legal aidcasesandhave developedenthusiasmforcontributingtheir knowledge to the public interest as well.Second,with the reform of Chinese traditional legal education, more and more professors attach importance to clinical legal education or have already become supervisors in legal clinics, most of whom have practitioners’licenses,andsome of whom have certain social influence.By instructingand supervisinglegal-clinic students, professors can control the quality ofthe workthe students do for theirclients.And third, after more than ten years of development, Chinese clinical legal education hasbecome widely implemented,allowingnewcomerstobe trained by experienced veterans andtaughthow to avoid unnecessary frustrations.

                Under current conditions, when legal-clinic students provide criminal legal aid, they can participatethoroughlyinnon-litigation cases, eveninsome special areas such as rehabilitation, communitycorrection, juveniledelinquency,and after-action complaint.Moreover,as it relates to these cases,legal-clinic studentshandletasks thatpracticing lawyers are not willing todo.However, inlitigationmatters, what legal-clinicstudents’can do is rigidly limited topreliminarywork,such as consultation, mediation, legal advice,and writing. In other words, they arenot permittedtorepresent clients before thecourt orvisit clients injail to interview them for such purposes. As a result, once a casethat wasinitially handled by legal-clinic studentsis submittedto the court, thestudentsmustcease all work before trial and tell the clients to apply for legal aid from the local government.Put succinctly, no matter how well legal-clinic students have performed in the pre-trial stage for their clients, theymay not assist clients incourt due to thelackoflocus standi.

                Part 2: The Lack of Locus Standi for Legal-ClinicStudentsto Participate in Court Defense

                Although legal-clinic students can participate in some special areas of non-litigation cases as well as most of the preliminary work of litigation cases, they are still unable to appear in court and conductin-court defense for their clients due to the lack of locus standi underthecurrent legal system.

                In the past,it was neitherunusualnor a surprisethat legal-clinic students were not qualified for locus standi in criminal cases.Becauseclinical legal education is a new mode of legal educationin China, the Supreme Courtcould not have been expectedto take legal-clinic students into consideration more thantenyears ago when theyadoptedthe relevant rules. However, after more thanadecade’s development, as legal-clinic students have been playing a more and more important role in Chinese legal aid undertakings, it is no longer understandable if the Court refuses to reform while theconditions subject to thelegal regulation have changedso significantly.If the law remains the same while the situationhas changed,the lawwill become an obstacleto achieving justice.

                Fortunately, as clinical legal educationhas progressedand the need for legal-clinic students’legal aidhas increased, peoplehave begunto discuss whether or not the lawshould be amended to grant locus standi to legal-clinic students.Thisconstructivediscussionhasresultedinthe followingtwoperspectives.

                Most clinical legal educators, represented by Zhen Zhen,suggest that thecurrentlaws shouldbe amended to grant legal-clinic students thequalificationof locus standi; otherwise,both the development of legal education and the promotion of social justiceare negativelyimpacted.In the viewof legal educators, since the society needs more human resources for criminal legal aid and legal-clinic students in law schools can meet such a need,legal-clinic students should be permitted to meet the need. Just as Zhen Zhen pointed out,“This is really an embarrassment for Chinese clinical legal education, and it is a great concern to me! If this situation continues, not only will legal-clinic students be discouraged, but also will legal professors be frustrated.”

                On the contrary, some people, among them mostly lawyers, judges,and prosecutors, doubt the competence of legal-clinic students and thereforearguethat legal-clinic students shouldcontinue tobedeniedlocus standi.In their view, legal-clinic students are not fit for criminal defense for at least three reasons:first, criminal procedure is more sophisticated than civil procedure and administrative procedure, andin-court defense is the most complicated part of criminal procedure,this createsa great challengeforlegal-clinic students. Second, criminal defense is moreimportant to the defendant due to its crucial relation to the loss or maintenance of a person’s fundamental human rights. Third, even if legal-clinic students have mastered enough legal knowledge, they are still immature psychologically and lack necessary experience, especially the undergraduate legal-clinic students.

                In regard to these two contrastingviewpoints, the formershould prevailfor three reasons.

                First, legal-clinic students inWestern countries were granted locus standi decades ago and they have provento be quite competent.Inthe United States, forexample, most of the courts, whether state or federal, have granted locus standi to legal-clinic students by court rules. Not only can legal-clinic students appear in state courts of any level on behalf of their clients, butthey arealsopermitted toappear in federaldistrictcourtsandfederal courts of appeals.My research has not uncovered any notable complaints regarding the performance oflegal-clinic students in the United States. Instead, somestudentshaveachievedgreat success, even in cases of world fame.

                Additionally, not every lawyer performs better than a legal-clinic student,and some not nearly as well. Although lawyers are generally more experienced than legal-clinic students, theymayshow less enthusiasm than legal-clinic students do when they are involved in criminal legal aid. As an example, when I was appointed by Beijing H&H Law Firm, where I practicedas an adjunct lawyer,to Beijing Legal Aid Centre for one week’s work of legal aid, I foundthatsome lawyers listenedto music or made phone callsinstead ofinterviewingthe applicants waiting outside in line. Those lawyers’impatience orindifferencecontrasts starklywith legal-clinic students’devotion and contribution.

                Finally, although legal-clinic students in China are mostly undergraduate students, it isnotnecessary to worry about their knowledge or rationality any morethan that of older, JD students in America.After at least two yearsofstudy at law schools, legal-clinic students in China are all adults of more than 20 years old and have mastered necessary legal knowledge forcriminaldefense, similar to what third-yearor second-year JD students in America have achieved.Nevertheless, the main problem that faces Chinese legal-clinic students is that they are usually younger than LLM students or JD students in America. Even so, they have already become adults around 20 years old or more,and are relatively maturepsychologically.

                In fact, similar to LLM students or JD students in America, what legal-clinic students in Chinamostneed to improve at law schools is real experience in the court, which is why legal-clinic students should be granted locus standi. Many benefitswill follow ifthoseopposed to permitting students to represent clients in courtcanchallengetheirownstereotypesand urge the court to grant locus standi to legal-clinic students.

                Among the other benefits of granting locus standi to legal-clinic students, the social need of criminal legal aidcan be met. In China, the human resources for criminal legal aid are very scarce due to theminimalnumber of lawyers. For example, in the first half of 2013 in Beijing, approximately 5.30 in 10 of the applicants obtained criminal legal aidservicesfrom the lawyer.In other words,nearly 47 percent of the applicants failed toqualify for court-appointed counsel.Meanwhile, more than 40 universities in Beijing have established legal clinics, which havemany capablestudents and supervising professors.Legal-clinic students are a precious human resourcethatcan serve as a supplement to theexistingresourcesfor criminal legal aid.

                A second benefit to a grant of locus standi to legal-clinic students is the promotion and development of Chinese legal education as a whole. As stated earlier, while legal-clinic students can undertake some preliminary work, including specific non-litigation criminal cases, it remains difficult for them to develop litigation skills without real court room experience. In contrast, iflegal-clinic studentsweregranted locus standi, they couldgo to the jail to interview their clients, go to the prosecutor to review relevant documents, appear in court,andprovide in-courtcriminal defense. As a result, when the students graduate fromlaw schools in the future, they will be more confident to face the real world and become more skillful in their legal profession.

                A third benefit is thatthe level of social justice in Chinacan improveif the court grants locus standi to legal-clinic students.Asthe weaker party in criminal procedure when compared with the powerful prosecutor, defendants are more often than not in desperate need for legal aid.Adefendantwhofailsto employ a lawyer for legal supportwillbe at an even greater disadvantageand can probably dovery littleto defend himselfother thanstand in court lonely and helpless. On the contrary, if legal-clinic students take over the task of providing legal aid for the defendants,when lawyers are not available, they will undoubtedlyaid inbalancing ofthe scalesofjustice.

                Part 3: TheAttempts Made to Solve the Problem ofLocus Standi for Legal-ClinicStudents

                Things arealways easier saidthan done. Althoughwisdom suggeststhat legal-clinic students should be granted locus standi,onestill hasto figure out how to turnthe ideaintoreality. Since citizen representation is not available in criminal defense,some of the clinical legal educators have already begun to make practical attempts to solve this problem.Atsome universities, such as Sichuan University, special agreements were made with the local trial courts, under which legal-clinic students can make courtappearances forindividualscharged withmisdemeanoroffenses.Atotheruniversities, such as China University of Political Science and Law (CUPL), special agreements were signed with the local judicial administrations to jointly found organizations, into which legal-clinic students are accepted as members.Once a member, students areappointedto cases for which they provide in-court representationunder the supervision of a qualified attorney.Atmost universities, legal-clinic students are allowed to go to court merely as the assistants of the licensed professors.

                Whilethese attempts are significant,giventhat theyallow legal-clinic students to appear in court and gainreal experience ofin-court defense,noneof them can serve as a realsolutionto the problem.

                These attempts haveinherentdefects. The first attempt is not sustainable inthelong-termbecause ofthe expiration of agreements or termination of specific tenures.The second one is susceptible to the reluctance of the court, and the third attempt fails to meet with the original goal of learning by doing. Still, it is confusing for legal-clinic students to understand their exact status and thereby perform with a clear idea of what they can or cannot do.

                In order to overcome these defects andcompletely solve the problem, most Chinese clinical legal educators suggestimplementing the American mechanism of‘bar-approved-internship’in China as the right solution. That is, the bar approvestemporary status of internship for legal-clinic students and hereby gives legal-clinic students specific locus standi similar tolicensedattorneys. As a result, when legal-clinic students appear in court,they are treated aslicensedattorneys andmayprovidein-court defense underthesupervisionof legal professors or licensed attorneys.

                This idea appearspossiblebut in factistoo impractical to help solve the problem. First, the bar in China may not be expected to approve such status for legal-clinical students. In China, it is the judicial administration, not thebar, whichhas the authority to license a lawyer. So, even if possible to approve the status of internship for legal-clinic students, it is not the authority of the bar. In this condition, if the bartakesthe libertytoaccept a legal-clinic student for internship, it will still be rejected bythecourt. Second, the bar in China has little influence on legal education. It is the educational administration, not thebar, whichhas the authority todevelopstandards for orevaluatethe performance of law schools.Given this arrangement, whyshouldthe bar bother to take the educational administration’s place and make it possible for a legal-clinic student to appear in the court? Third,in contrast tothe American tradition of professional legal education, China carries out common legal education in the law schools.Thismeansthat it is not unusualforgraduates from law schoolsto pursue professions unrelated to thelaw,whileothergraduates who do notdeclarelaw as their major,laterjointhebar after successfullypassingthe bar exams.As a result, since no inner relationship has been built between law schools and the bar, it is hard to imagine that the barwould bewilling to temporarily accept a legal-clinic student for internship at the expense of bringing unnecessary competition tolicensed,practicinglawyers.

                Now that the mechanism of‘bar-approved-internship’is not available for Chineseclinical legal education, is thereanalternative usedinthe United Statesthatcan bemodeled inChina? There is a specific practice in most American courtsthatcan solve the problem. In this practice, the courtsdirectlygrant locus standi to legal-clinic students according tothe rules of the specific court. That means legal-clinic students do not need to apply for the status of‘bar-approved-internship’and can represent their clients directly under the permission of relative courts.At this time,eightout oftenfederal courts of appeals,and eighteenoutoffiftystatessupreme courts, togetherwiththeSupreme Court of the District of Columbia, have such rules and can grant locus standi to legal-clinic students.Inadditionto the eight federal courts of appeals and the eighteen statesupremecourts,numerousfederal district courts and state trial courts or state courts of appeals are in a much longer list.In all these courts, legal-clinic students are qualified torepresent clients before the courtif they meet the requirements set forth by the respective court rules. In other words, the status of‘bar-approved-internship’is not aprerequisitefor legal-clinic students to appear in courton behalf of criminaldefendants. As for the details of those requirements, I will lay them out in part 4 of this paper.

                Compared with the mechanism of‘bar-approved-internship’,there areat least three advantages in China for the courts to grant locus standi directly to legal-clinic students. The first one is efficiency. Whether legal-clinic students have the status of‘bar-approved-internship’, they need the permission of courts in the long run to represent the clients. So why bother and apply for the status of‘bar-approved-internship’from the bar? The second one is justice. The courts have no conflicting interests with the granting of locus standi to legal-clinic students. As a result, judges never worry about the loss of market share as lawyers do in legal aid as well as profitable cases. And while setting forth the rights or obligationsoflegal-clinic students, the courts can take a more impartial stand. The third one isoperabilityorimplementability. As I have discussed above, it isimpractical for the bar in China to solve the problem by approvingthe status of‘bar-approved-internship’for legal-clinic students. The courts can. The court ismore authoritativethan the bar in regard to deciding what requirements a legal-clinic student must meet. Additionally, Chinese judgesparticipatemore in legal education than lawyers do. They teachasadjunctprofessorsat law schools and deeply know what the problems are with Chinese legal education. Lastly,and most importantly, it is morefeasiblein China for the court to establish court rules than for the bar to make bar ruleswithregard to qualifying legal-clinic students for court defense.

                In a word, thesethreeadvantagesmake the court a better entity for granting permission for criminal defense representation by legal-clinic students inChina.Nevertheless,it is no easy task to turn such an idea intoareality in a short period of time.In order to make such an achievement,a lot of workneedsto be done, including but not limited to figuring out the legislative proposals for the courts consideration.

                Part 4: TheLegislative Proposals

                Becauseit is better for the court to grant locus standi to legal-clinic students by means of making relevant court rules, details of a legislative proposalmust be considered.

                As the first step, the Criminal Procedure Law (CPL) should be amended by adding an authorizing section between section 1,and section 2 of Article 32. This sectionshould include the following:“…In the area of criminal legal aid, the National Supreme Court can qualify other social forces for criminal defense in its discretion and make relevantjudicial decisions for the purpose of regulation.…”Suchanamendment is designed to achieve two goals. One is to open the door indirectly for legal-clinic students to conductin-court defense in criminal legal aid.The other is to confine thein-court defense conducted by legal-clinic students to the area of criminal legal aid. If such an authorizing section is added to the Criminal Procedure Law, then the Legal Aid Act (LAA),),andthe Legal Aid Rules in Criminal Procedure(LARCP) will be amended accordingly sooner or later.

                In regards tothe second step, it should bedeterminedwhich courts are eligible to make such rules. Asdiscussed, most American courts, whether federal or state, have made their own rules for legal-clinic students to conductin-court defense. Those that have not made such rulesaremostlylocatedin states such as Alaska andHawaiidue to their(limited/better word choice)?zero or small number of lawstudents.Nevertheless, the U.S.Supreme Court has not made and will not make rulespermitting student representation in the Supreme Courtdue to its highest rankandunique caseselection. In China,even with some reforms urged in this paper,itwillalsoremainimpossible for legal-clinic students to appear in the National Supreme Court for reasons similar to that of the U.S.Supreme Court. Even so, it is still necessary for the Supreme Court to draft and pass a general judicial decision for purposesof regulation.On the basis of that, all the intermediate courts as well as all the highcourts in every province, municipality,and autonomycan make their own specific court rules for student practice if necessary.

                In regards tothe third step,the courtsshould consider the key points when drafting the court rules and grant locus standi to legal-clinic studentsunder proper circumstances.What follows are suggestions for the court's consideration based on comparative study.

                Suggestion 1. Prerequisites of application.

                For the purpose of guaranteeing the basic quality of legal practice, legal-clinic students should meet certain prerequisitesof application before they apply for locus standi.

                In America, if legal-clinic students want to appear in court for criminal defense, they must meet two prerequisites of application.First, the legal-clinic student must be a full-time student at an‘ABA-approvedlawschool’or a‘certified lawschool’.Second, the legal-clinic studentsare usually required to be enrolled in a legal clinic affiliatedwiththelaw school.With very few exceptions thata student who is not in alegalclinic may also appear in court under proper supervision by a licensed lawyer.Similarly, in China,if alegal-clinic studentwishes to providein-court defense, he must be currently enrolled in a certain legal clinic affiliated tothelaw school, and the law school must be approved by a certain authority in a certain way. However, the bar in China, whether national or local, has no authority or delegated authority to approve law schools;approval of law schoolsis usually conducted bytheMinistry of Education. As a result, the courtsshouldrefer to the accreditation conducted by Ministry of Education in selecting the qualified law schools.

                Suggestion 2. Requirements on academic performance.

                For the purpose of safeguarding the defendant’slitigationrights, legal-clinic students should meet some requirements on academic performance before they are granted locus standi.

                In America, on the basis of the twoprerequisites of application, each state established its own requirements on academic performance for legal-clinic students. Take California as an example.To be eligible to perform in-court defense,thelegal-clinic studentmust: (1) have successfully completed one full year of studies (minimum of 270 hours of instruction) at a law school accredited by the American Bar Association or the State Bar of California, or both, or have passed the first year law students’ examination; (2) have been accepted into, and be enrolled in, the second, third, or fourth year of law school in good academic standing or have graduated from law school, subject to the time period limitations specified in the rules adopted by the Board of Governors of the State Bar; and (3) have eithersuccessfully completed or be currently enrolled in and attending academic courses in evidence and civil procedure.Insomestates,such asVirginia, Tennessee and South Dakota,the rules effectively make this permission available only to third year students because of the number of credits that they must have completed.In some states,such as Maryland, Tennessee and Virginia,the lawyer ethics course must also have been completed by the student to qualify.

                In China, to be eligible to represent criminal defendants before thecourt,thelegal-clinic studentshould:(1)have completed legal studies amounting to at least four semesters;(2) have eithersuccessfully completed or be currentlystudying academic courses injurisprudence, criminal law,criminal procedurelaw; and (3)have passedallthe law students’ examinationsin each semester.

                Suggestion 3. Case types and the limitation.

                For the purpose of gaining as much experience in court as possible, legal-clinic students shouldbepermittedto participate in as many types of cases as they can. Meanwhile, thereshould also belimitations due to their status aslegal-clinic students.

                In America, court rules usually do not set forth definite criteriaregarding thetypes of cases legal-clinic students can participate in orinwhich types of cases they cannot. In other words, this is left to the discretion of the court. Take the United States Court of Appeals for the Ninth Circuit asanexample. Itallowseligible law students acting under the supervision of a member of the barto appear on behalf of any client in anycaseapproved bythe Court with the writtenconsent of the client, if the Requirements for Student Practiceofthe Court are met.Similarly, in the United States District Court for the Middle District of Alabama, an eligible legal-clinic student can participate in any case approved by theCourt, provided that the studentissupervised by a qualified attorney.

                In China, due to the characteristics of the legal system,it is impossible to endow the court such discretion.Instead, thereshouldbe explicit limitations on case types.The following limitationswould be mostappropriate: (1) In regard to caseswith fewerthan3 yearsofpossible imprisonment, legal-clinic studentsshould be permitted toappear in court and conduct defense under the supervision of clinical supervisors; (2)in regard to casesfor which thedeath penalty orlife imprisonment may be imposed,legal-clinic studentsshouldnever bepermitted to provide in-court representationdue to the complexity and seriousness of the cases;and(3)in regard to othercases, legal-clinic studentsshould be permitted to provide in-court representationunder the supervision of clinical supervisors and the supervision must be on-scene.

                Suggestion 4. Permitted activities in court.

                Toimprovestudents’ trial advocacyskills, legal-clinic students should bepermittedto participate in as manylitigiousactivities as possible.

                In America, legal-clinic students can participate in anylitigationactivity in a permitted case during the wholecourt proceedingin the presence of a supervising lawyer. In California, for example, the court rules outline in detailthe followingactivitiesstudents may engage in:(1)Negotiate for and on behalf of the client;(2) appear on behalf of the client in depositions;(3) appear on behalf of the client in any public trial, hearing, arbitration, or proceeding, or before any arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer, to the extent approved by such arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer;(4) appear on behalf of a government agency in the prosecution of criminal actions classified as infractions or other such minor criminal offenses.

                In China,sincethe prosecution of a crime is a type of public power, which is exclusively, authorized to theprocurator, it is impossible for legal-clinic students toappear on behalf ofthegovernmentto prosecute the defendant,eveninmisdemeanors or other such minor criminal offenses. Therefore, in China the activities legal-clinic students can participate inmust belimited to the following:(1)Negotiate for and on behalf of a criminaldefendant or negotiate for and on behalf ofeither party in private prosecution cases(familiar features of civil law systems);(2)appear on behalf of thedefendantin depositions;and (3) appear on behalf of thedefendantin any public trial, hearing, or proceeding, or before anyjudge,prosecutor, orpublicofficer, to the extent approved by suchjudge,prosecutor, orpublicofficer.

                Suggestion 5. Supervision.

                Supervision is a necessity for legal-clinic students to practicein-courtrepresentation. The supervisor is usuallyrequired to bean experienced lawyer or a law professor. Asthe minimum requirementfor such task, the supervisormustbe devotedin the whole process ofsupervising, so that legal-clinic students can be assured toprovidediligent andqualifiedrepresentation forthe defendant.

                In America, student practice must be supervised by alicensedattorneyto the extent necessary for the proper training of the student and protection of thedefendant. In the State of California, the supervising attorneymust have actively practiced law in California and been a member in good standing of the State Bar of California for at least two years immediatelybeforethe time of supervision.In the State of Nevada,a “supervising lawyer” means either a lawyer or law professor employed by the Boyd School of Law in a clinical program and certified to practice in Nevada, or a member of the state bar in active practice.

                In China, the supervisor is usually a law professor. If available, an experienced lawyer can also be employed or invited to supervisealegal-clinic student.As for their supervising obligations,Chinese rules should requirethe following:(1)Read, approve, and personally sign anylegal writingprepared by the student beforedeliveringitto the client;(2)review, approve,and personally sign thecourt documentsbefore submittingthem to the court; (3)helpthe studentprepare for appearance in court;(4)provide on-scene instructionandsupport in the court when necessary;and (5)providetimelyfeedback tothe studentregarding the student’sperformance.

                Suggestion 6. Liabilities.

                In order to ensure good faith and lawful conductwith regard to in-court representation of criminal defendants, there must be certain punitive measures for misconduct or malpractice committed by legal-clinic students.

                In America, most of the courts subject legal-clinic students to the disciplinary actionsof practicinglawyers, while some stipulate special punitive measures explicitly and clearly in special articles, including but not limited tonegativeevaluations,compensationfordamages,or withdrawalof certification. In California, for example, students failingto comply withcertain requirementsmust have their certification withdrawn under rules adopted by the Board of Governors of the State Bar.In order to guarantee the compensation of damages caused by legal-clinic students, most of the courts demand that the supervising attorney or the law schoolpurchaseprofessional liability insurancefor legal-clinic students.As an example, the Supreme Court of the State of New Hampshire prescribesin its court rules that ‘the supervisor must consent in writing toassume personal, professional responsibility for the student's or graduate's work and consider purchasing professional liability insurance coverage to include such law student or graduate.’

                In China, it is also necessary toestablisha system of punitivemeasures forstudentswho commitmalpractice orengage inmisconduct.Such measures shouldinclude butneednotbelimited to: (1)withdrawal ofthe student’s qualification for court defense; (2)give the studenta negativeevaluation;or(3) disciplinary sanctions.At the same time, for the purpose ofguaranteeing the compensation of damages caused by legal-clinic students, the courtsshouldurge the clinics or the law schools to purchase liability insurance. As a result,ifthe clients suffer loss from legal-clinic students’malpractice or misconduct, theycan get appropriate compensation from the insurance coverage.


                In America, it took almost half a century for legal-clinic students to be qualified torepresent criminal defendants before the court.During the whole process, a landmark California case,People v. Perez,wasdecidedin 1979, in which a legal-clinic student namedJack Loowas granted locus standi toprovide in-court representation fordefendantCarlos Perez under the supervision of a deputy public defender.Following thePerezdecision, most federalandstatecourtsestablished rules for student practice. Governed by or complying with such rules, legal-clinic students are legally qualified to conduct criminal defense in the court andfurther develop theirpractical skills and professional ethics.

                In China, althoughneitherthe newly promulgated Criminal Procedure Lawnoritsjudicial interpretationpermitlegal-clinic students to practicein-court defense in criminal legal aid,China can quicklyturn the proposals into reality for two reasons:one,with the rapid development of clinical legal education and the rapid growth of legal-clinic student population, it is an irreversible trend for the courts to establish such rules and grant locus standi to legal-clinic students in the future; two,Chinese clinical legal education can learn from the American experience and avoid repeating unnecessary mistakes.

                Now, it is time for the Supreme Court in China to make the important decision and grant locus standi to legal-clinic students in criminal legal aid.In order to turn this into reality as soon as possible, Chinese clinical legal educators still havemuch work to do. In addition to the continuousappeals to the court on this issue, such work includes but is not limited to the following: (1)continue spreading the method of clinical legal education; (2)exchange ideas with non-clinical professors and gain theirsupport; (3)recruitdistinguished legal professors into clinical legal education and thereby expand its influence;and(4)promote cooperation with therelevantagencies, especially the courts, and garner theirsupport.

                D. International Academic Conference Addressing: