China Law Blog recently linked to a post I wrote in June while I was living and working in Beijing entitled, "The Allure of Working in China". My post was a pugnacious post written in response to a post on Asia Business Intelligence. I was venting my general frustration with my own inability to reconcile my impatient desire to practice in China NOW as opposed to adhering to the sound advice of those who know better, which is that it would behoove me to get a couple years of legal experience in my home jurisdiction before going to China. Since China Law Blog has brought up the subject again, there have been a few interesting posts written in response that I want to share and comment on.
We'll begin with Dan Harris' opinion at China Law Blog, which was embodied in his posted entitled, "So You Want To Practice China Law?" Harris said that eager law students sometimes ask him how they can become an international attorney (in China specifically) and Harris said that his "advice to them is usually a somewhat rambling dissertation on the need to build a solid legal foundation while working on improving language skills." He said that this advice is generally not specific enough for the inquiring student/young lawyer, but it sounds like solid advice to me. Harris identified two key elements to becoming an international attorney: (1) A solid legal foundation and (2) language skills. There seems to be little debate about the necessity of acquiring language skills; the debate is centered around the question, "What exactly is a solid legal foundation?"
David Carnes at China Breezes captured the essence of the debate in his post, "Go East, Young Man - The China Syndrome: Why the US is exporting lawyers to China and why you should think twice before joining them". Carnes spent his summers working in China before graduating from law school with a high GPA and a proficiency in Mandarin. The moment he graduated he returned to China and a couple of years later he tried coming back to the USA only to discover that the best job he could get was delivering pizza. His advice to people considering an international law career is to look in a mirror and ask, "Is your primary focus on law, or on China?" If the answer is law, then Carnes said:
Because when it’s all said and done, the inside of an office is the inside of an office whether that office is in Beijing, Caracas, or New York. And like it or not, the inside of an office is where you’re going to be spending most of your waking hours as a lawyer. Likewise, legal work is essentially legal work whether you’re drafting documents and consulting with clients in English, Chinese, or classical Arabic.
This is a very persuasive line of argumentation: if I want to be a lawyer, it shouldn't matter where I'm practicing law. I agree, and the corollary to this argument is if being in China is what is important, then it should not matter what you're doing to live in China. Carnes hinted at this corollary when he advised that a person wanting to practice in China should introspectively inquire, what is my plan B? Is plan B practicing law in your home jurisdiction, or teaching English in China?
I do not agree with the corollary. Someone once told me that they would be willing to scrub toilets if that's what they had to do to live where they wanted to live. I'd be willing to scrub toilets to survive but not to live in Beijing, Paris, or San Francisco. I also wouldn't teach English, which is partly why I'm not in China now. There is a difference between teaching English in China and working as a foreign attorney in China, and Carnes stated it in his post. "American lawyers are tolerated in China because they help seduce Western investment into China." Working in China as an attorney will provide me with a greater opportunity to make significant contributions to China as an evolving and powerful nation that rivals the USA. I could not make this impact teaching English or with a PhD or an MBA.
However, this naturally brings up the questions, "Wouldn't my contribution be greater if I had the practical experience of working in the USA prior to working in China?" Any experience a person can bring to their job is valuable, but the question becomes what kind of legal experience in the USA would benefit me as an attorney abroad? How different are international business transactions in the USA compared to Paris or Beijing? Are they not still international in essence? Yet, collective bargaining for unions in the entertainment industry is going to be really different in the USA than it is in China. Would a person's practical experience in this field even culturally and politically translate in China? This brings to light the core issue of this problem; viz., by immediately embarking on a career in China, I will acquire skills that are not applicable in my home jurisdiction, but the same is true about the skills I acquire while working in my home jurisdiction.
That is what is so troubling about this dilemma; someone that wants to work internationally has to make that decision prior to beginning his or her career. Moreover, once he or she embarks on this path, coming back to the USA may not be an option. This is why I think professionals such as Harris and Carnes take a practical approach and suggest procuring a few years of experience at home prior to going abroad---not really for the legal foundation but just in case you want to come back.
Carnes also said, "As the English language level of Chinese lawyers improves, numbers increase, and foreign investors develop greater confidence in the local legal system, American lawyers will become increasingly unnecessary." I also agree with this statement and I believe it supports my notion that working in China as an attorney will provide me with a greater opportunity to contribute to China because the Chinese legal system is embryonic compared to the legal systems of the West. Chinese attorneys need foreign attorneys not for their language skills but for their erudition. Undoubtedly, once they have learned all that they can from us, they will reduce our presence in their country. Should such a concern prevent someone from making a contribution to this process? I don't believe so because there will always be jobs for international attorneys.
In "The Future of Law is International" I posited that law students today who do not learn the fundamentals of international law and acquire some proficiency in a foreign language will greatly limit their options in the future legal market. I'm obviously not the only one who holds this opinion. According to Opinio Juris, international law is now a required course for first year law students at Harvard, Hofstra, and Michigan. An international attorney functions with a different skill set than an attorney who simply practices in their home jurisdiction. The international attorney is a master at comparative law and is able to research the applicable laws in multiple countries that will apply to a single transaction. Working as an international attorney is not about being an expert in two systems of law or customary international law or the CISG. It's about being dynamic in a world composed of nations beset on all fronts by illusory boundaries that are defined by mental constructs called laws. Most importantly it's about being creative. The practice of international law requires an attorney to confront issues that have yet to be addressed. The example that immediately comes to mind is the recent debate over the Military Commissions Act (see our most recent post here), which has required the members of the Executive and Congress to be international lawyers. Another example is anyone that is representing a detainee at the Navy base in Guantanamo is an international attorney. This illustrates that even people practicing in the USA are still required to possess a skill set that is capable of navigating international law arguments.
Harris at China Law Blog also said, "[A]lmost every lawyer I know just fell into/morphed into their practice area after many years as lawyers." This seems like the most realistic and honest advice anyone could give to someone coming out of law school, and it's the kind of advice I like to hear because, lets be frank, no one knows where they'll end up or how they ended up where they are. Take a bearing, set a course, and let the adventure begin.