The emergence of the Lawyer-Linguist profession offers a good solution to the shortage of native English-speaking foreign counsel in China caused by the COVID crisis of 2019-2022. Traditionally, Chinese law firms have treated native English-speaking counsel as glorified English editors and teachers, and true bilingual skill was simply not considered a relevant skill for such professionals. Therefore, the abilities of numerous attorneys who sought to master Mandarin and understand source documents were deliberately neglected. Recent efforts in the European Union to develop the Lawyer-Linguist profession highlight how these skills and abilities can be utilized to ensure that the bilingual aspect of international law work is done to the highest standards of quality.
Emergence of foreign counsel
The adoption of the foreign counsel system in China is closely related to local translation theory and practice, the short story of which is that the constant failure of translators led to the rise of foreign counsel. Translation as a practice in China has ancient roots going back thousands of years, yet did not develop with the needs of the modern legal process in mind. Rather, like many other procedures such as the motions of Tai Chi, the Chinese legal translation process began to be seen as a process in itself existing independently of external factors like client needs. Even today, legal translators in China often very aggressively resist the notion that the operational needs of the client paying for the project, much less other stakeholders like courts and lawyers designated as officers of the court, should be considered in the practice of legal translation.
The result was a historical 1980s collision between translators attempting to maintain the purism of translation and the needs of legal clients for translated documents to be well-grounded in reality. Law firms in China then adopted the foreign counsel system to take control of the translation process, yet following the recent battering by the shock of COVID, the system is now crumbling. Without intervention from lawyer-linguists, a regression to the prior system will undoubtedly result in major legal and compliance catastrophes.
What is the foreign counsel system in China? If history is followed closely, one can clearly see that it originated as a solution to problems created by translators during the 1980s. About 40 years ago, China commenced its gaige kaifang—a reform and opening up—and permitted foreign law firms to provide assistance in China, provided that all legal matters actually be completed by PRC licensed attorneys. Chinese immigration laws further ensured that only ethnic Chinese would be permitted to be licensed under that policy. This approach is the opposite of the United States, which permits Chinese attorneys to obtain a license to practice law, and even waives the 3-year juris doctor requirement in favor of a slimmed-down 1-year LLM. The result of the no-foreigners-allowed policy for law licenses in China means that no native speaker of English would ever be rendering contracts or legal opinions into English, thereby creating a huge language barrier for businesses operating in the market.
Some good case studies of the perplexing results are the 2008 Fonterra Foods scandal, where incoherent compliance reports apparently led to the mass poisoning of infants, and the 2013 GlaxoSmithKline scandal, where British bribes were used to push unnecessary medications on unknowing patients. The situation was not unlike the Opium War, where foreigners with sophisticated London accents pushed chemical concoctions down the throats of the Chinese population, much to the shock and alarm of the country’s leaders. Foreign counsel and legal translators alike could not solve the problem that emerged, and to find out why, we must delve into the history of these practices to see how they developed and eventually failed.
When the first companies set up in Shanghai and Beijing to do business in China in the 1980s, they encountered a translation industry that had already existed for decades, primarily created to disseminate political propaganda. As translation environments go, propaganda is very much a top-down, command-and-control echo chamber setup. The intensity of the groupthink means that foreign readers struggled to understand the resulting translations, and when clients began noticing all the “Chinglish,” firms decided to solve the problem by bypassing translators rather than by working directly with them. They achieved this by assigning legal counsel from their home offices to places like Shanghai and Beijing, in an attempt to replicate a successful model used in Hong Kong. However, unlike Hong Kong, Shanghai does not use English law, and that’s where the problems began. In Hong Kong, a key reason behind the success of monolingual lawyers revising documents was the fact that the legal system there uses English; not so in Shanghai, where every change is potentially misleading.
Nonetheless, Shanghai law firms continued to forge ahead with the foreign counsel system in the 1980s, yet idiosyncrasies began to emerge in the new social and legal context. Since these new foreign arrivals did not speak Chinese and could not legally practice Chinese law, nor were they competent to anyway, local attorneys began to view them as “polishers” of the “real” work done by the local Chinese attorneys. Contrary to what happened in Hong Kong and Singapore, the marginalization of the foreign counsel’s role in providing translation for lawyers became ever more extreme and resulted in international corporate counsel crippling foreign companies’ ability to handle compliance in China, resulting in the numerous Western corporate corruption scandals of the prior decade. The anatomy of the foreign counsel and local counsel relationship from a linguistic perspective can help show why.
Foreign counsel are not really prepared in any way to work with Chinese law. Typically, all law firms are really looking for are white faces and law degrees. These foreign counsel are given documents written in a way that is incoherent or misleading, and simply use their own knowledge of American law and terminology to make educated guesses about how such terminology and language structures apply to the document. A good example of this phenomenon gone wrong is how judges writing in Chinese judicial publications constantly deny that Chinese law has liquidated damages but think it’s a very interesting American and British concept worthy of study— just not right for Chinese society. Nonetheless, when bilingual contracts come in for litigation, the English versions talk of “liquidated damages” and use a measure of damages appropriate to America but illegal in China.
Moreover, distortions of the truth often result in native English-speaking counsel imposing their will excessively on the Chinese lawyers, effectively turning local counsel into scriveners for lawyers not qualified to practice in the jurisdiction. In my own observations and judges’ complaints in China, contracts translated directly into Chinese in order to appease some foreign counsel’s requirements are not written in the language of Chinese law and are alien to the local courts and local practice. Instead of ensuring the quality of legal representation in China, monolingual foreign counsel are merely providing superficial assurance of the quality of their work to their clients and, aside from improving appearances, degrading substantive performance.
Lawyer-Linguists
A new profession is emerging in the legal field that can solve these problems – a merger of both the bilingual lawyer role and the linguist profession. The European Union was the first to formalize the profession by introducing Lawyer-Linguists to its legal system. To see why introducing this role is a solution to this problem, we first need to address the failure of bilingual attorneys in China.
Bilingual attorneys from Western countries who speak Chinese, especially those highly skilled in their second language, generally experience their bilingual skills being undervalued, and therefore neglected, by local Chinese law firms. Although better positioned to work collaboratively with local Chinese attorney teams than those in the above monolingual example, most law firms neglect to emphasize this significant advantage. Instead, in the law firm environment, attorneys having even a fairly rudimentary grasp of conversational Mandarin are marketed by their firms as being fluent in a second language, but such claims are not substantiated and indeed for native English-speaking attorneys assigned to China, not something that the market really cares about. Local lawyers tend to categorize United States-educated attorneys purely based on their ethnicity: either they are native speakers of Chinese or they are not members of the ethnicity, therefore their Chinese language skills are not professionally useful.
This is an extreme dichotomy, but it has a grain of truth: it reflects that the vast majority of lawyers claiming to speak Chinese, not unlike how Elizabeth Holmes of Theranos fame did, are at best minimally bilingual. Their utility to local attorneys mainly consists of what Chinglish calls “polishing,” that is, they take Chinglish documents and polish them up to look presentable to foreign readers, regardless of accuracy.
In contrast, the linguist profession does things much more differently than law firms with regard to linguistic proficiency; as shown on the government ILR website, proficiency in five aspects of each language skill and in translation ability is separately rated on an objective scale. A professional is not considered competent merely because of a skill they claim to have, as on law firm websites, rather there are a variety of testing programs and certifications used to rigorously assess competence. Professionally, the focus is on a linguist’s language skill—a linguist must perform well in their second language to be employable, unlike “bilingual” attorneys whose second language skill is treated more like a cute decoration or even a liability by their native Chinese-speaking peers. Furthermore, linguists working for an expert-managed organization whose purpose is to provide quality Chinese legal translation services will receive a considerable amount of feedback and supervision in order to develop their careers. This kind of feedback is not present in the law firm environment, and results in paralegal-linguists who never learn anything and are thus doomed to perpetual incompetence.
The primary, fundamental aim of the lawyer-linguist profession introduced by the European Union is to achieve strong performance on legal language tasks. The profession designation recognizes that legal translation is such a difficult field that it requires extensive training in both the law and linguistics to be effective at rendering meanings accurately and in a way that ensures the smooth functioning of the legal system without conflicts spilling over into other areas. Compared directly with the monolingual foreign counsel who can make it appear that good work is being done, the lawyer-linguist actually ensures good work is being done, because this professional is not ignorant of the law and facts in their second language.
