On a listserv I'm on, I mentioned the phrase "Chinese Walls" to refer to the "cone of silence" or "ethical walls" that sometimes accompanies efforts to screen tainted lawyers from disqualifying law firms. Someone pointed out that at least one California judge has taken offense at the phrase. Peat, Marwick, Mitchell & Co. v.Superior Court 200 Cal.App.3d 272, 293-294, 245 Cal.Rptr. 873, 887-888 (1988) (Low, Presiding Justice, concurring), wrote:
I concur in the opinion of Justice Haning, but write separately to comment on the
apparently widespread use of the term "Chinese Wall" to describe the type of
screening mechanism discussed in this case. While our opinion uses the term
"screen," both the parties and the trial court used the term "Chinese Wall,"which
seems to have become a term of art. I write to express my profound objection to the
use of this phrase in this context.The origin of the use of "Chinese Wall" in the context of confidentiality is
unclear. Evidently, the term was casually coined in some appellate opinion, then
picked up and used without question or explanation by courts and commentators. The
unquestioned use of the term was perpetuated by a leading note on the subject, The
Chinese Wall Defense to Law Firm Disqualification (1980) 128 U.Pa.L.Rev. 677, which
is otherwise analytical and informative. (See lead opn., fn. 2, p. 878.)The enthusiasm for handy phrases of verbal shorthand is understandable.
Occasionally, however, lawyers and judges use a term which is singularly
inappropriate. "Chinese Wall" is one such piece of legal flotsam which should be
emphatically abandoned. The term has an ethnic focus which many would consider a
subtle form of linguistic discrimination. Certainly, the continued use of the term
would be insensitive to the ethnic identity of the many persons of Chinese descent.
Modern courts should not perpetuate the biases which creep into language from
outmoded, and more primitive, ways of thought.It may be sobering to recall that little more than a century ago our own Supreme
Court held that persons of Chinese ancestry could not testify in court against a
person of Caucasian descent. In People v. Hall (1854) 4 Cal. 399, 404, the court,
speaking through Chief Justice Hugh C. Murray, declared that "[t]he same rule which
would admit them to testify, would admit them to all the equal rights of
citizenship, and we might soon see them at the polls, in the jury box, upon the
bench, and in our legislative halls." It is worth noting, given recent events on the
American political stage, that language and attitudes once embodied in a judicial
opinion would now lead to the removal of a Governor, and membership in groups
adhering to those attitudes could lead to denial of confirmation for high public
office.Aside from this discriminatory flavor, the term "Chinese Wall" is being used to
describe a barrier of silence and secrecy. The barrier itself may work to further
the cause of ethics in litigation; but the term ascribed to that barrier will
necessarily be associated with constraints on the freedom of open communication. To
employ in this context the image of the Great Wall of China, one of the magnificent
wonders of the world and a structure of great beauty, is particularly inappropriate.
One can imagine the response to the negative use of the images of the Eiffel Tower,
the Great Pyramids of Cheops, or the Colossus of Rhodes.Finally, "Chinese Wall" is not even an architecturally accurate metaphor for the
barrier to communication created to preserve confidentiality. Such a barrier
functions as a hermetic seal to prevent two-way communication between two groups.
The Great Wall of China, on the other hand, was only a one-way barrier. It was built
to keep outsiders out-not to keep insiders in.It is necessary to raise a clenched cry for jettisoning the outmoded legal jargon of
a bygone time. If the image of a wall must be used, perhaps "ethics wall" is more
suitable phraseology.
I had always thought the phrase referred to the Great Wall of China, and had no racial or improper component. I also think the judge is wrong: we don't care if a tainted lawyer acquires information; it's only to keep information from leaving him, and so the architectural analogy is perfect. What do you all think?