VZCZCXRO0211
PP RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHPF #0368/01 1550828
ZNR UUUUU ZZH
P 040828Z JUN 09
FM AMEMBASSY PHNOM PENH
TO RUEHC/SECSTATE WASHDC PRIORITY 0776
INFO RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 03 PHNOM PENH 000368 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MLS, P, D, DRL 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM PREL KJUS CB
SUBJECT: CASE AGAINST MU SOCHUA'S LAWYER COULD SET 
PROBLEMATIC PRECEDENT 
 
REF: A: PHNOM PENH 297 B: PHNOM PENH 295 C: PHNOM 
     PENH 279 D: PHNOM PENH 273 
 
SENSITIVE BUT UNCLASSIFIED 
 
¶1.  (SBU) SUMMARY: As the public political struggles over 
defamation have played out between Prime Minister (PM) Hun 
Sen and Sam Rainsy Party Parliamentarian Mu Sochua, the PM's 
high-profile lawyer has pursued an ethics complaint at the 
Cambodian Bar Association in a parallel course of action 
against Mu's lawyer.  Post outlines the precarious situation 
that Mu Sochua's lawyer has managed to create for himself in 
the context of standards of behavior for lawyers in Cambodia. 
 Possible sanctions, if the lawyer violated the Code of 
Ethics, range from a letter of warning to disbarment.  END 
SUMMARY. 
 
¶2.  (SBU) While a pair of lawsuits between the PM and Mu 
Sochua (Reftels) has largely receded from public view, a 
secondary conflict has emerged as the PM's lawyer, Ky Tech, 
filed an ethics complaint with the Cambodian Bar Association 
against Mu Sochua's lawyer, Kang Sam Onn.   NGOs are closely 
monitoring the Bar Association's investigation of this 
complaint.  (NOTE: Ky Tech is a high-profile lawyer and 
former Bar Association President known for his personal 
ambition and aggressive style.  END NOTE.) 
 
¶3.  (SBU) During an April 23 press conference, Kang Sam Onn 
stated that Mu's lawsuit would be filed that day; it was 
subsequently filed on April 27.  He was quoted by newspapers 
saying that the PM "must be responsible" for his comments, 
that those comments were an "undeniable" reference to Mu 
Sochua and constituted insults or defamation.  Ky Tech, in 
his few public comments regarding the Bar Association 
complaint, indicated that his reasons for filing the 
complaint were that Kang Sam Onn announced an intent to file 
a defamation suit before filing the suit, and that Kang Sam 
Onn claimed Hun Sen defamed Mu Sochua before the court made a 
decision on that matter. 
 
¶4.  (SBU) The Cambodia Bar Association convened a panel to 
investigate the ethics complaint filed by Ky Tech.  The panel 
planned to meet on May 25, but two of the five members failed 
to appear for the session.  One inspector, Hem Socheat, 
subsequently stated that he wanted no part of the 
investigation because he "felt the lawyer had done nothing 
wrong."  The panel convened again on June 1.  Kang Sam Onn 
reported to Poloff that he appeared before the panel, and 
presented a letter requesting that the panel consider 
replacing one inspector, Hem Voun, an attorney at the 
Cambodia Law Firm, which is run by Ky Tech.  The panel 
adjourned shortly thereafter, with no indication of when it 
might meet again. 
 
--------------------------------------------- 
Attorneys' Obligations in a Civil Code System 
--------------------------------------------- 
 
¶5.  (SBU) Cambodia's legal system is a civil code system 
adapted from the French system.  There are no juries, and no 
trials, other than a summary trial at the end of the process 
that is typically very short.  The case is a confidential 
file to which all parties have access and to which they may 
add information.  The judge bases a decision on the 
information contained in that file.  The judge's verdict may 
contain some of the information in the case file, but the 
full file remains confidential in perpetuity.  Under the Code 
of Ethics, lawyers are bound absolutely by professional 
confidentiality. 
 
 
¶6.  (SBU) Attorney Yong Phanith of the NGO Cambodian 
Defenders Project said that attorneys in Cambodia must take 
care not to pronounce judgment in a case before a judge has 
ruled.  Lawyers may quote their clients words, which are not 
restricted, but doing so potentially opens the attorney to 
countersuit by the opposing side.  Drawing on a hypothetical 
example of a murder complaint, where Mr. A accuses Mr. B of 
murdering his wife, Mr. Yong explained that Mr. A's lawyer 
may not call Mr. B a murderer - but Mr. A may do so.  Mr. A's 
lawyer may quote his client's statement, but Mr. B might then 
choose to file a complaint about Mr. A's lawyer with the 
court, and Mr. A's lawyer might also be subject to 
investigation and disciplinary action by the Bar Association. 
 
 
----------------------- 
Attorneys and the Media 
----------------------- 
 
PHNOM PENH 00000368  002 OF 003 
 
 
 
¶7.  (SBU) Article 15 of the Code of Ethics for Lawyers 
Licensed With the Bar Association of the Kingdom of Cambodia 
states that media activity by a lawyer is allowed only in 
strict accordance with his professional obligations, and that 
such activity requires great caution.  It also requires a 
lawyer to inform and consult with the President of the Bar 
Association prior to media activity, unless it's impossible 
to do so. 
 
¶8.  (SBU) Several trial attorneys told Poloff they believed 
the pre-notification requirement was fairly new, instituted 
in 2007 by the Bar Association under the leadership of Ky 
Tech.  Hong Kim Suon, a lawyer with the NGO Cambodian 
Defenders Project, gave an example of his 2003 defense of a 
teacher charged with defamation and disinformation, and said 
that during the judicial process he frequently discussed the 
case with the media.  After 2007, he said he stopped 
discussing cases with the media except in very rare 
circumstances.  Sok Sam Oeun, the Executive Director of 
Cambodian Defenders Project, said the Bar Association made 
several such changes between 2005-2007, which he believed 
brought the Bar Association rules in line with government 
rules for employees contacting the media.  (NOTE: Article 15 
has been part of the Code of Ethics since it was written in 
1995, so it may be that Ky Tech chose to outline more 
explicitly the President's role and to enforce strictly a 
provision that was already part of the Code.  END NOTE.) 
 
¶9.  (SBU) Mr. Sok said that if journalists contacted a lawyer 
about a specific case, he believed the lawyer may answer the 
questions, but would need "to be very careful" to avoid 
giving offense or breaching confidentiality.  He stated that, 
in a similar situation, he would not have held the press 
conference, but would have counseled his client and then 
allowed the client to hold the press conference alone. 
(NOTE: None of Poloff's sources were willing to give an 
opinion on the possible outcome of the case.  END NOTE.) 
 
---------------- 
What's At Stake? 
---------------- 
 
¶10.  (SBU) If the Bar Association found that Kang Sam Onn 
violated the Code of Ethics, the punishments prescribed by 
the 1995 National Law on the Bar include a warning, verbal 
reprimand, suspension not to exceed two years, or disbarment. 
 The law does not specify which sanctions might be applied in 
which types of cases; the Bar Council makes this 
determination at the time of their decision. 
 
¶11.  (SBU) A number of local and international human rights 
NGOs expressed concern over the Bar Association being drawn 
into the middle of the defamation claims.  On May 21, 
Lawyers' Rights Watch Canada wrote to the President of the 
Cambodian Bar Association urging the Bar to forestall its 
investigation until the court ruled on the legal complaints. 
And several NGOs in Cambodia expressed concern that the Bar 
Association's investigation would have "a chilling effect" on 
the legal profession in general and the ability of lawyers to 
represent their clients. 
 
-------- 
COMMENT 
-------- 
 
¶12.  (SBU) The PM has had little to say about the Bar 
Association complaint; it appears that Ky Tech is in charge 
and managing his client as he follows through on the action 
against a fellow lawyer.  This was particularly evident on 
May 27, when Ky Tech offered to drop the separate defamation 
legal case against Kang Sam Onn if the Bar Association would 
"thoroughly investigate and punish" the lawyer for 
misconduct.  The applicable rules are broad and open to 
interpretation.  Comparing Kang Sam Onn's actions to the 
example provided by Mr. Yong, it appears that Kong Sam Onn 
opened himself up to counter-claims by Ky Tech by 
extemporizing on the case, and implying that the result would 
be a foregone conclusion.  Considering the political nature 
of this case, together with the fact that Kang Sam Onn may 
have stepped beyond the boundaries of what other lawyers 
would do and his former role as an NGO lawyer, it's not 
surprising that Kang Sam Onn is an attractive target.  The 
lawyer's plight could affect the legal profession down the 
road.  At the very least, the case sends a message to lawyers 
to exercise extreme caution in representing their clients in 
the press. 
 
¶13.  (SBU) Post will continue to follow this case, especially 
 
PHNOM PENH 00000368  003 OF 003 
 
 
as it pertains to freedom of speech, fair comment against 
public officials, and media access for all political parties. 
 END COMMENT. 
RODLEY