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China Law and Its Development

Another story about China lawyer professional conduct and ethics

A poor client paid the final amount on a promissory note to the attorney for seller as part of a stock purchase agreement.  The accompanying letter demanded that the funds be maintained in trust (the prom note was paid by wire transfer into the trust account of seller's attorney) and not release to seller until the shares were released. Attorney released funds and did not release stock claiming the final amount was insufficient. In any case you need draft a promissory note in China, make sure consult a China lawyer before you doing so.

The original agreement contemplated an escrow agent holding the shares.  An amendment to the agreement had payments to the seller's attorney in trust FBO the seller but did not specifically name the attorney as escrow agent or state that the payments were being received .

 

One thing I have been asking prospective clients on the phone is "Are you calling to HIRE a lawyer?"

One thing I have been asking prospective clients on the phone is "Are you calling to HIRE a lawyer?"  Most say "yes, I think I need one" or "I hope so" or something. As a China lawyer, you have to ask this before you move on with a client.

Some get stumbly right there and then we have a conversation.  I tell them that is what I do -- I get hired by people to represent them, but information on how to do something without me is best found elsewhere.  I do talk about payment pretty freely -- as much as I can -- since of course that is on people's mind.

But if a prospective client says he wants advice and cannot afford to hire me -- especially those who proudly announce that before even hearing any fees -- then I tell them that sadly, that is not what I do at my work.

 

An example of China lawyer - judge relationship

China lawyer - judge relationship has never been well.

I think what I find most disturbing about this is the judge just not giving a shit what goes on in her courtroom.  I mean, the bailiff doesn't even try to justify his arrest with something like, "Oh we found drugs on you during my random drug search."  No, he is pretty much encouraged by the other guy (the one in yellow) for "making a false allegation against a police officer."  I'm glad she had the guts to step up to the microphone and repeat her protests after making the bailiffs believe she was going to cooperate with their forced recantation.

I would make a motion to substitute counsel (if the old attorney is also refusing to withdraw).  With it I would include an affidavit from the client saying they discharged the old attorney on x date and notified the attorney of the discharge.  Then in your motion state you were hired on x date, that attorney has refused to sign the substitution of counsel, that the attorney has refused to withdraw from the case, the client has the right to choose their own attorney and you request the court to remove the previous attorney as attorney of record and enter in your appearance as the current attorney of record.

 

China lawyer client privilege requires us to be careful when representing clients

One of my colleague, also an experienced China lawyer, discussed with me: I represented a client in connection with his prenuptial agreement, and his fiance was represented by another attorney.  The fiancé (now wife) called this week to say that she and her husband would like to see me to do their estate planning.  Can I do this, and if so, what kinds of waivers do I need from them?

I may be in the minority here, but I wouldn't represent a couple after I'd represented just one of them in an agreement with the other spouse, particularly where a prenuptial agreement is involved, due to the high incidence of challenge by an ex-spouse either during lifetime or at death.

One point that you'll have to consider in the representation on estate planning is the likelihood of challenge of the prenuptial agreement down the road, which throws you squarely into an insoluble conflict. I just don't think that there are enough waivers to properly protect you. Courts will punish the sharp lawyer who tries to worm their way out after-the-fact with waivers, particularly where individual clients like your situation are involved. You might (and should) be able to get away with this with corporate clients and very savvy clients, but I don't think that it will work if a rank layman brings an ethics charge.

 

How to Keep Yourself Safe Being a China Lawyer

Being a China lawyer can be unsafe. I never park in the parking garage near the courthouse.  I always find either an open lot or park on the street.  But then there have been too many stories of people getting into cars (while in parking garage) shot, or bombed.

I always advised my clients (in tense situations) to avoid using the parking garage, to have someone else bring them (in a different vehicle then one the other had access to) or if they can't bring a different vehicle, to at least bring someone else with them.  It is far to easy for the ex to duplicate a key, leave the court first, find the car and hide in the back (and we had a case in the county I used to work in where that is pretty much what happened).

I also generally left the courthouse via the back door, which almost no one knew even existed.

The bailiffs in the court house and deputies from the sheriffs department routinely would escort people from the courthouse to their cars if you asked.  They would also hold back a party so that the other party could leave the building and get to their car.

Generally I recommend that threats be formalized as a complaint where possible with law enforcement.  While one cannot count on the complaint being prosecuted, it can be valuable documentation (especially with repetition).

The police and prosecutors however, cannot protect you from imminent harm.

 
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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.