Guidelines for the operation of perennial legal counsel business of private enterprises

Operational Guidelines for Perennial Legal Counsel Business of Private Enterprises

(Released on November 8, 2021)

Chapter I General Provisions

Article 1 Purpose

In order to promote lawyers to better provide perennial legal counsel services to private enterprises, proceed from the actual situation of private enterprises' organizational structure, corporate governance structure, risk management and control process, and other actual conditions, to better meet the needs of private enterprises' legal services, and at the same time standardize lawyers' practice behavior and reduce corresponding practice risks, these operational guidelines are formulated in accordance with the provisions of the "Lawyers Law of the People's Republic of China," the "Civil Code of the People's Republic of China," and other relevant laws, regulations, and normative documents.

Article 2 Definitions

"Private enterprises" as used in these Guidelines refers to non-state-funded enterprises, that is, enterprises other than state-owned enterprises funded by the state, state-owned capital holding companies, and state-owned capital shareholding companies.

The legal counsel business of private enterprises refers to the law firm accepting the entrustment of private enterprises in accordance with law, appointing lawyers to provide them with comprehensive legal services within the agreed scope of work in annual cycles with their professional knowledge and skills.

Article 3: Characteristics of legal counsel services for private enterprises

(1) Private enterprises emphasize the efficiency of legal services, pay attention to lawyers to provide efficient solutions in combination with legal provisions and experience, and provide flexible and diverse service methods, not limited to forms and processes.

(2) Private enterprises focus on effective communication, and private enterprises have not set up legal risk prevention and control departments or legal posts, and there are also situations where staff in other positions concurrently hold legal positions, requiring lawyers to convert legal language into popular language for communication when providing services.

(3) Private enterprises pay more attention to improving the awareness of legal risk prevention and control of all employees, and the personnel turnover of private enterprises is relatively large, and lawyers are required to regularly popularize common legal risks for employees.

Article 4 Special Matters

These guidelines are operational guidance documents for lawyers when engaging in private enterprise legal counsel business, and are for reference when lawyers engage in related business.

For wholly state-owned enterprises, state-owned capital holding companies, and state-owned capital shareholding companies, only reference applies.

Chapter II: Principles of Legal Counsel Services for Private Enterprises

Article 5 The principle of putting the legitimate interests of customers first

In the process of providing legal counsel services, through prior risk demonstration, risk control during the event, and after-the-fact solutions, we provide reference opinions for the client's decision-making, so as to minimize the loss of the client or expand the client's benefit within the scope of the law.

Article 6: The principle of legal compliance

When performing their duties as legal counsel for many years, lawyers should strictly abide by the provisions of the law and practice norms, unify safeguarding the legitimate rights and interests of clients with abiding by the lawyers' professional ethics, and refuse to provide legal services for the client's illegal acts or the acquisition of illegal benefits.

Article 7 The principle of serving the commercial purposes of customers

In the process of providing legal counsel services, we should start from the customer's business purposes, analyze the advantages and disadvantages and risks from the perspective of the law, and provide effective and implementable solutions for customers.

Article 8: The principle of active service

In the process of providing legal counsel services, the client and relevant personnel should be informed of the transaction background of the relevant matters, customer needs, the position of the other party, etc., and full and effective communication is an important part of providing services. In addition, when providing legal counsel services to clients, it is recommended not only to provide solutions to the specific problems raised by the clients, but also to proactively consider the potential risks and precautions of each link of the relevant matters, and to provide the client with as comprehensive legal risk tips as possible.

Article 9: The principle of confidentiality

In the process of providing legal counsel services, lawyers are exposed to and learned about state secrets and clients' business secrets

Confidentiality, as well as information that should not be disclosed, personal privacy, etc., are subject to the obligation of confidentiality.

Article 10: The principle of one file per case

In the process of providing legal counsel services, the texts and communication records involved in the client's legal consultation matters, the issuance of lawyers' letters, contract review matters, consultation and negotiation matters, etc. shall be kept in writing, electronic document archiving, etc.

Chapter III Overview of The Perennial Legal Counsel of enterprises

Article 11: The basic scope of perennial legal counsel services

The perennial legal counsel service of private enterprises is a comprehensive and conventional legal service, and its perennial legal counsel service scope includes the following contents:

(1) To provide advice and suggestions to enterprises on relevant legal issues.

(2) Issue a lawyer's letter and issue a statement on behalf of the enterprise on specific matters.

(3) Assist enterprises in drafting, modifying and reviewing legal documents and documents such as contracts.

(4) At the request of the enterprise, participate in the consultation and negotiation of the enterprise, conduct legal analysis and demonstration.

(v) Providing training in legal knowledge or legal affairs handling skills for enterprises.

(6) At the request of the enterprise, provide legal basis and legal opinions on the legality, feasibility, risk prediction and countermeasures of major decisions made by the enterprise in production, operation and management.

Article 12: Special legal service matters

In addition to the perennial legal counsel services, after being separately entrusted, lawyers can provide special legal services for private enterprises, and the scope of reference services is as follows:

(1) Legal affairs of enterprise branches, subsidiaries, branches in different places and other affiliated enterprises.

(2) Agency affairs involving economic, civil, intellectual property, labor, administrative, criminal, etc. that must enter litigation or arbitration legal procedures for enterprises.

(3) Enterprises are involved in special legal counsel matters such as intellectual property rights protection and planning, long-term investment, financing, enterprise restructuring, reorganization, mergers and acquisitions, bankruptcy, stock issuance, and listing.

Article 13: Perennial legal counsel service methods

Lawyers can improve the initiative of perennial legal counsel services, designated personnel and enterprise designated personnel timely contact and communicate, according to the "perennial legal counsel service plan" to determine the way of work, response period, through regular / irregular door-to-door, telephone, mail, participation in meetings and other ways to provide legal services, establish a special solution to the customer's difficult problems.

(1) Regular or irregular door-to-door service mode, in order to maintain a good and smooth communication channel with customers, in order to provide legal services to customers in a timely manner, lawyers can regularly or irregularly go to customer units to communicate and analyze legal affairs, provide legal advice and answer legal difficulties as needed.

(2) Telephone, WeChat, e-mail and other remote service methods, such as customers encounter legal affairs that need to be urgently handled, they can directly seek legal advice from lawyers through various convenient contact methods.

(3) Regular communication methods, in order to timely understand the legal dynamics encountered by clients in the process of business, lawyers can continue to communicate with the client's responsible person, maintain close contact, and pay attention to the client's demand for legal services.

(4) The customer sends a person to the door for consultation, according to the actual situation of the customer, the customer can send a staff to the law firm to consult and analyze the legal affairs with the lawyer.

Article 14: Perennial legal counsel service objectives

Based on their professional legal knowledge and professional accomplishment and work skills, lawyers provide professional services to customers through various forms of legal counsel services, solve legal problems in operation, prevent legal risks, and safeguard the legitimate rights and interests of customers.

At the same time, we should publicize and implement legal risk awareness to customers, help customers improve their ability to foresee, control and solve legal risks, and promote the establishment and optimization of legal risk management systems for customers.

Chapter IV: Preparatory Work for Perennial Legal Counsel

Article 15 Understand the basic information of customers in advance

Before accepting a client's entrustment, lawyers collect and understand the client's basic information through open channels, including but not limited to the basic information of the enterprise, historical evolution, organizational structure, main business, basic business model, and the general situation of the industry in which they are located, pay special attention to the legal environment such as the judicial cases involved by the client and information on untrustworthiness, form a comprehensive understanding of the client in advance, and draft an outline of the issues that need to be understood for the interview.

Article 16 Customer Interviews

When the lawyer accepts the client's entrustment, he or she interviews the client's responsible person or legal personnel, implements the information obtained by the client in advance, fully understands the client's situation, and clarifies the work objectives, completion time, service standards, as well as the main risks in the processing, the main prevention and control objectives, etc., and at the same time introduces the basic elements such as the value and service scope and working method of the perennial legal counsel to the client, so as to fully meet the client's service requirements.

Article 17: Investigations of legal needs

According to the client's past legal disputes and main business needs, the lawyer assists the client to fill in the "Perennial Legal Service Survey Demand Form" and fully grasps the client's legal needs, so as to provide appropriate and targeted perennial legal counsel service programs.

Article 18: Risk sorting and control

Through the initial collection, interviews and other information obtained, the lawyer sorts out the client's main business and process, and uses the case induction method, expert experience method, hypothesis deduction method, etc. to summarize the common legal risks of the client and put forward constructive suggestions on the client's risk management and control framework based on the characteristics of the client's industry and the company's own situation.

Article 19: Perennial legal counsel service plans

According to the client's legal service needs and their own business field, work experience, working hours, etc., the lawyer comprehensively considers providing the client with a suitable perennial legal counsel service plan, and when necessary, considers providing legal services in the form of a team, so as to make the plan convenient for the client's needs and achieve its development goals as much as possible.

Lawyers provide clients with a special "Perennial Legal Counsel Program", which should introduce in detail the scope of perennial legal counsel services, service matters, working methods and standards, consultant fees, and the introduction of responsible lawyers.

Article 20 Compilation of laws and regulations on main business

On the basis of a comprehensive understanding of the client's industry and main business, the lawyer takes the initiative to collect, sort out and compile the laws and regulations that may apply to the client's main business, and forms a compilation of laws and regulations applicable to the client's business, so as to facilitate the development of perennial legal counsel services in the later stage.

Chapter V: Operational Guidelines for Common Legal Counsel Services for Private Enterprises

Article 21: Legal consultation

(i) Definitions

Legal advice refers to the business activities of lawyers to conduct legal analysis, make explanations or explanations in oral or written form, and make suggestions and solutions on simple matters raised by clients in the daily business process.

(ii) The process of legal advice

Lawyers receiving legal consultation matters from clients should follow the corresponding answering process, and those that can be answered on the spot can be answered on the spot, and those that cannot be answered on the spot should also provide a timely reply to solve legal problems for customers, provide accurate and effective legal opinions or suggestions, and recommend following procedures:

1. Registration. It is recommended to register and record the legal advice of customers as much as possible.

2. Listen to the customer's statement. Be aware of the ins and outs of the legal issues of the inquiry, pay attention to the details and key plots, and understand the key and essence of the consultation question.

3. Carefully observe and review to understand all the details of the legal matters consulted.

4. Conduct targeted questions in a timely manner for the problems found.

5. Comprehensive analysis. For more complex legal advice, inform the customer according to the actual situation that they need to go through research before replying

6. Answers. In addition to legal advice that cannot be replied to immediately or that requires a separately agreed time, the customer's legal advice should generally be answered immediately.

Article 22 Contract drafting and review

(1) Definitions

Contract drafting refers to the business activities of lawyers to draft various types of agreements according to the needs of clients such as transaction models and commercial terms.

Contract review refers to the business activities of lawyers to provide legal review and risk warning for various types of agreements involved in the daily operation and management of clients.

(2) The process of contract drafting and review

When drafting and reviewing contracts for customers, they should first understand the objective facts and customer needs, not only consider the risks of the contract text, but also provide relevant legal services from the perspective of promoting transactions, and at the same time, they should fully warn of the risks in the process of contract performance, and it is recommended to refer to the following processes:

1. Understand the background of contract signing. Through communication with customers, understand the purpose of the customer signing the contract, the customer's position, the main process of the transaction, the order of contract performance, the rights and obligations of both parties and other information.

2. Conduct necessary investigations of the counterparty. Conduct necessary investigations and understanding of the customer's counterparty's background, such as the basic information of the transaction subject, the analysis of the litigation involvement, and the litigation involvement of the main shareholders and actual controllers.

3. Drafting and reviewing of contracts. Distinguish between commercial terms, legal terms, and mixed terms. From the perspective of accuracy and efficiency, in principle, the drafting and review of contracts should be carried out on the basis of the customer's transaction scenarios and commercial terms determined in advance.

4. Negotiation and negotiation of contract terms. Directly participate in or assist the relevant personnel of the customer to negotiate and negotiate the terms of the contract with the counterparty.

5. Contract signing and performance. Inform the client in writing of important legal risk points in the performance of the contract.

Article 23: Issuance of lawyers' letters

(1) Definition of the issuance of lawyers' letters

The issuance of a lawyer's letter refers to the business activity of a lawyer to send a letter to a third party in the name of a law firm based on the materials stated or provided by the client for a specific legal matter, in accordance with the law, with the aim of requiring it to perform its duties

, or notify them of related matters.

(ii) Procedures for issuing lawyers' letters

When issuing a lawyer's letter, it should first understand the objective facts, require the customer to provide relevant information, and decide whether to issue and how to issue the lawyer's letter according to the facts presented by the existing information and the legal provisions, combined with the purpose of the customer's letter, and it is recommended to refer to the following procedures:

1. Make a transcript of the conversation. The handling lawyer makes a transcript of the conversation with the client, prompts the legal risks, and analyzes the legal consequences. The transcript of the conversation shall record the basic facts, claims, demands, etc. stated by the customer. If the customer is unable to provide relevant evidence on the stated facts due to the urgency of the situation, the customer should be allowed to confirm the relevant facts in the form of a Memorandum or Commitment Letter.

2. Conflict of interest retrieval. If there is a conflict of interest with the other party, a lawyer's letter cannot be issued. We can assist clients to separately entrust other law firms to provide this legal service.

3. Writing of lawyer's letter. The content of the lawyer's letter is divided into three parts, one is the fact part, according to the information provided by the client, extracting objective facts that are beneficial to the customer for writing; the second is the legal analysis part, which analyzes the legal relationship in the relevant facts and the rights and obligations of all parties in accordance with the provisions of the law; the third is the letter part, which clearly requires the other party to perform its obligations or notify the relevant matters, and informs the relevant legal consequences.

4. Confirmation and issuance of lawyer's letter. After the lawyer's letter is drafted, it needs to be confirmed by the client, and at the same time, a process review is carried out in the law firm, and there is no objection and then stamped and issued.

Before mailing the lawyer's letter, the handling lawyer shall make a copy of the mailed lawyer's letter and send the lawyer's letter through China Post Express Material Flow Co., Ltd., and the mailing slip shall indicate the name of the document, such as: "×× to the ×× lawyer's letter on × × matters". At the same time, a copy of the lawyer's letter and the delivery situation are sent to the client for information. If the other party signs for or refuses to accept the lawyer's letter, it shall obtain a certificate of proper delivery or return from China Post Express Logistics Co., Ltd.

5. Filing of lawyer's letter. After the completion of the issuance of the lawyer's letter, the relevant materials should be filed and archived immediately, such as the customer's commitment or communication record, working papers, lawyer's letter mailed for archiving, and the receipt of the posting list and the lawyer's letter.

Article 24: Lawyers participate in consultations and negotiations

(1) Definitions of lawyers' participation in consultations and negotiations

Participation in consultation and negotiation refers to the lawyer's business behavior of communicating and negotiating with a third party based on the client's entrustment, assisting or representing the client, with the aim of achieving the client's purpose.

(2) The process of lawyers participating in consultations and negotiations

To participate in consultation and negotiation, you should first understand the objective facts and the purpose of the customer, specify the negotiation strategy and inform the relevant risks according to the customer's purpose and legal provisions, and it is recommended to refer to the following process:

1. Understand customer needs and the progress of matters. Through communication with customers, understand customer needs, customer positions, and beneficial and unfavorable facts for customers.

2. Analyze the advantages and disadvantages. According to the information provided by the customer, analyze the favorable facts and unfavorable facts of both sides in the negotiation process, and predict the results of the consultation and the countermeasures.

3. Participate in consultation and negotiation. According to the established plan, assist customers to communicate with third parties, and in the process of communication, they should respond according to the attitudes and demands of third parties, and seize the opportunity to implement the conclusions of the negotiation or conclude the negotiations according to the opportunity.

4. Formulate the next step. After the negotiation, the client reviews the negotiation situation and formulates the next step. If an agreement has been reached with a third party, the minutes and agreement of the meeting shall be drafted as soon as possible

such written documents require the other party to sign and confirm; if substantial progress is not made, etc., it shall be determined with the customer to continue negotiations or resolve the dispute through litigation, arbitration and other means.

Article 25: Legal training

(1) Definition of legal training

Legal training refers to the fact that lawyers are based on the needs of their clients and their main business involves relevant legal laws

regulations, as well as the relevant legal risks involved in the daily business process of customers, and business practices that communicate professionally with customers.

(ii) The process of legal training

1. Preliminary preparations. Understand and be familiar with the customer's business scope and related industry laws and regulations, as well as typical cases of the industry, and summarize them.

2. The principle of prior communication. Communicate fully with customer executives, legal counsel, and professional positions in advance, and prepare training content for the actual needs of customers.

3. Interactive communication, in-depth and simple, easy to understand. In the training process, we should try to interact with the participants as much as possible to ensure professionalism and make the training content as interesting as possible; try to use as little French as possible and try to make it easy to understand.

4. Collect feedback information. After the training, communicate with participants to gather feedback.

Chapter VI Summary of the Work of Legal Counsel of Private Enterprises throughout the Year

Article 26: Summaries of perennial legal work

Before the expiry of the perennial legal counsel contract, the lawyer should summarize the work situation of the past year, analyze the customer's legal counsel service needs from multiple dimensions such as the amount of work, working hours, and types of legal service matters, summarize the customer's legal needs and the degree and types of legal risks they often face, provide constructive suggestions or opinions to provide customers with constructive suggestions or opinions on risk prevention, and remind customers to focus on legal risk matters in the next year.

Article 27: Annual statistics on the workload of legal counsel services

(1) The dimension of the workload statistics of legal counsel services

According to the client's perennial legal counsel service content and the annual legal service demand, the workload of the annual legal counsel service can be counted from the following single or multiple dimensions:

1. From the time dimension of providing services, let customers more intuitively and clearly understand the workload of consulting services.

2. From the dimension of the number and category of drafted or revised written documents, in addition to showing the annual service workload, the drafted or revised documents can be classified to sort out and summarize the regular legal documents for customers.

3. From the speed and time dimension of service feedback, timely feedback is one of the key factors for enterprises to provide legal counsel services to lawyers, so that customers can intuitively feel the timeliness of consulting services from the report.

4. From the dimension of other service content, statistics can be made on the content of other legal consultation services according to the customer's industry, needs and other content, such as the number of legal training.

Article 28: Annual legal counsel enterprise risk summary and legal analysis

(1) Risk summary

1. Classify according to the legal nature of risks, and through the classification of risks, let customers know what kind of risk categories they faced in the previous year.

2. Sort and list the levels according to the risks, and evaluate and sort the importance and impact of the risks, prompting customers to deal with the priority of risks.

3. List the sources of risks, and list the sources of specific risks, such as customer transactions or legal documents.

(ii) Legal analysis

1. Analyze the causes of risks and corresponding impacts, which can be summarized and summarized in conjunction with the legal analysis provided during the annual service period.

2. Provide legal advice on risk reduction, and legal advice needs to put forward corresponding solutions closely related to risks.

(iii) Other matters needing attention

In addition to summarizing past risks, if there are new policies or regulations, the risks that will occur may be made

prompt.

Article 29: Renewal of perennial legal counsel service contracts

Before the expiry of the perennial legal counsel contract, the lawyer should closely follow the work summary and legal analysis to communicate with the client to understand whether the client's needs are updated and changed, and solicit the client's opinions on the quality of legal services, the improvement of working methods and methods, whether to renew the employment, the quotation of the new annual legal counsel service, etc.; If the appointment is renewed, the lawyer shall provide a new annual service plan according to the changes in the client's needs and opinions, and the content of the service plan should match the content of the client's work summary.

Chapter VII: Advocacy of Perennial Legal Counsel Fees for Small and Medium-Sized Private Enterprises

Article 30: Advocacy of fees for perennial legal counsel services

At present, there is no clear relevant provision on the charging standards for perennial legal counsel services, and it is recommended that lawyers take the hourly charging standards in the "Guangdong Provincial Lawyer Service Government Guidance Price" as a reference, and consider the estimated working hours consumed, the difficulty of legal affairs projects, the number of undertakers, and the necessary necessary expenditure costs to set the charging standards.

Perennial legal counsel services can be quoted in three ways: hourly charges, number of pieces and package charges, which are selected and determined by customers according to their own situation.

Chapter VIII Supplementary Provisions

Article 31 Supplementary Provisions

This guideline is formulated by the Guangzhou Lawyers Association Corporate Counsel Professional Committee, is not a mandatory or normative document, and is only for the reference of lawyers in the process of providing perennial legal counsel services. This Guideline shall be interpreted by the Corporate Legal Counsel Professional Committee of Guangzhou Lawyers Association.

Chapter IX Annexes

1. Questionnaire on the Perennial Legal Service Needs of Enterprises

2. "Perennial Legal Counsel Service Plan"

3. Statistical Table of Perennial Legal Counsel Work

4. Summary of Perennial Legal Counsel Service Work

5. Customer Feedback Form

Source | Guangzhou Lawyers Association