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Working With Chinese and Korean Lawyers: The Big Four Issues with Each.

China lawyers Korean lawyers

A post like this has to generalize a bit and there are certainly exceptions to everything I say. But having worked with dozens of law firms in both Korea and China, I have noticed the following four problems in dealing with lawyers from those two countries, respectively:

KOREA

  • Non-responsiveness is the norm. American lawyers generally see their role as helping clients achieve their goals and keeping their clients informed. Korean lawyers operate far more independently. They consider themselves the legal experts and they often get offended when questioned. According to their perspective, a client should trust them, not ask questions, and not expect updates. This obviously does not work well for American clients. Two excellent Korean law firms have admitted to me they “always get fired” when they work directly with American companies or with American lawyers inexperienced with Korea. If a Korean lawyer has a hearing scheduled in a case, I email him (it is virtually always a he) the day before to urge him to provide me with a full report by the next day, at the latest. I usually send another email reminder after the hearing concludes and if I do not have a timely report, I call.
  • Your matter is not important. Most Korean lawyers have plenty of work and any one matter from an overseas client is not likely to be of great importance to them. This may mean your Korean lawyer will not fight hard on a particular motion where the chances of winning are low; he or she would rather stay in the good graces of a judge or fellow lawyer than challenge the status quo. I try to get around this by hiring “outsider” lawyers if my case is going to be particularly difficult or contentious, or by attending the hearing if it is particularly important. I also always make clear, upfront, that a good result for this client will lead to more work from my law firm’s other clients.
  • The Korean lawyer’s role is different. Korean lawyers tend to view themselves as “above it all.” I learned this when, trying to settle a case, we offered $900,000 and the Korean company on the other side offered to pay us $700,000. I asked the Korean lawyer to go back at $850,000 and I could feel his reluctance. I say “feel” because while he was telling me he would go back at $850,000, he was also asking me questions to let me know he did not think he should go back at $850,000. Weeks then passed with no updates and vague responses to my emails. Then, out of the blue, a US-educated paralegal from the firm called me to say the $850,000 offer had never been passed on because the Korean lawyer considered it beneath him to negotiate “as though at a flea market.” I do not know if that paralegal was put up to the call by the attorney or if he called me on his own, but I have since learned to control negotiations myself. It is not just in negotiations that the Korean lawyer sees himself as above the fray. If you do not put pressure on your Korean lawyer, you can pretty much assume that numerous time extensions will delay your case for years.
  • Confidentiality? What’s that? Korean lawyers simply do not respect the attorney-client privilege the same way American lawyers do. I try to handle confidentiality problems by using the same few lawyers in Korea for all of my firm’s clients. Because I provide so much work to these attorneys, I have a personal relationship with them, which makes it less likely that they will hurt me by hurting my client. It also decreases the incentive for the Korean lawyer to hurt my client because doing so will cut off the regular stream of work my firm provides.

 

CHINA

There are many lawyers in China scrambling for work, but most of them have neither the experience nor the language skills to handle international clients. The problem is that most either do not know this or will not admit it. The four most common problems I see in retaining Chinese lawyers are:

  • Chinese law firms often are not “firms” as we understand the term. There are very few really good Chinese international law firms in China and many of them are not really firms at all; they are a collection of solo practitioners. Many American companies think they are using the best lawyer in a firm for a particular matter when in fact that lawyer has the case not because of his skill set, but because he or she is the one who brought in the case.
  • Chinese lawyers are rarely power brokers. The importance of connections is not as strong as it once was, though it is still a factor in certain industries and certain parts of the country. Chinese lawyers are usually not well connected (even if they are reluctant to admit it) so hiring a lawyer as a power play is rarely recommended. China’s good lawyers are very smart and very well educated, but if they were truly well connected, they would most likely have a top position in the government or with a big company, and they would never have attended law school in the first place.
  • The Chinese lawyer’s role is different. Chinese lawyers far too often see their role as doing what the client tells them to do, rather than telling the client what should be done. If a client calls me and says she wants to do A, my knee-jerk response is to ask why. The typical Chinese lawyer’s response is to say “yes.”
  • Chinese lawyers do things the Chinese way. Chinese companies can get away with all sorts of things in China that American-owned companies cannot. Chinese lawyers tend not to account for this. Chinese lawyers also almost never know the various US law strictures under which American companies must operate. The Foreign Corrupt Practices Act is a classic example. There are also many things American companies can do legally in China that would be a public relations disaster back home. This is particularly true regarding labor relations and environmental stewardship

As always, I would love to hear what you think.

I particularly welcome comments from those who have worked with (or for) Korean or Chinese lawyers and from Korean and Chinese lawyers.

Have at it people…

30 responses to “Working With Chinese and Korean Lawyers: The Big Four Issues with Each.”

  1. While once discussing a situation with my oldest daughter, I remarked that she had “problems” to deal with. She snapped back, “Dad, I don’t have problems, I have issues.” To this day, I am quite not sure if I truly understand the difference between the two terms; however, it seems to make her happy that I am not “apparently” judging her differences as “problems”.

  2. Great post. Re your point 3: I’ve had a somewhat different experience, but at a different time with people at a different stage of their career, so maybe that’s the explanation. My experience was with paralegals who were graduates of China’s top law schools. It often seemed to me that they viewed the lawyer’s role as saying “No” to the client – i.e., trying to find some reason why the law did not allow the client to do what he wanted, instead of thinking about whether there might be a different interpretation, or whether the deal structure might be tweaked a bit. If I had a nickel for every time someone said to me, before I had even finished asking the question I wanted them to research, “Oh, Chinese law clearly stipulates … (Zhongguo falv mingwen guiding …)” … And then would follow some incredibly abstract statement that of course did not actually resolve the issue in any determinate way.
    On the other hand, my small experience with legal opinions matches yours. The opinion letters I saw were aggressively confident about the most dubious of claims – far from the contorted evasions of the American legal opinion, in which every assertion of fact is, as far as possible, qualified out of existence by “assuming that” language. I’m pretty sure the difference is due to the different probabilities of the lawyers’ ever facing liability for what their letters say.

  3. In your option, would Hong Kong lawyers be generally better than the so-called mainland China lawyers in handling international clients?

  4. While once discussing a situation with my oldest daughter, I remarked that she had “problems” to deal with. She snapped back, “Dad, I don’t have problems, I have issues.” To this day, I am quite not sure if I truly understand the difference between the two terms; however, it seems to make her happy that I am not “apparently” judging her differences as “problems”.

  5. to cathy:
    Yup. Most Hong Kong lawyers are better than mainland lawyers. It’s all about education. HK lawyer educated by UK law system, and with their language strenght , they ‘re able to access more resources and connections. I feel like people don’t trust lawyer in China, their talk and appearance just don’t show us confident and honest.

  6. Great post. Re your point 3: I’ve had a somewhat different experience, but at a different time with people at a different stage of their career, so maybe that’s the explanation. My experience was with paralegals who were graduates of China’s top law schools. It often seemed to me that they viewed the lawyer’s role as saying “No” to the client – i.e., trying to find some reason why the law did not allow the client to do what he wanted, instead of thinking about whether there might be a different interpretation, or whether the deal structure might be tweaked a bit. If I had a nickel for every time someone said to me, before I had even finished asking the question I wanted them to research, “Oh, Chinese law clearly stipulates … (Zhongguo falv mingwen guiding …)” … And then would follow some incredibly abstract statement that of course did not actually resolve the issue in any determinate way.
    On the other hand, my small experience with legal opinions matches yours. The opinion letters I saw were aggressively confident about the most dubious of claims – far from the contorted evasions of the American legal opinion, in which every assertion of fact is, as far as possible, qualified out of existence by “assuming that” language. I’m pretty sure the difference is due to the different probabilities of the lawyers’ ever facing liability for what their letters say.

  7. In your option, would Hong Kong lawyers be generally better than the so-called mainland China lawyers in handling international clients?

  8. Dan,
    I have spent many years as a foreign lawyer at a “top” Chinese law firm and I just want to say that I agree with you 100% about what you say about Chinese lawyers. I have tried to get my firm to change, at least when dealing with American clients, but since business just keeps coming in, they have never felt the need. With business now slowing, they are now finally coming to me (for the first time) to ask what American companies want and expect from their lawyers. I do not think they are going to listen to me, but at least they are asking.

  9. to cathy:
    Yup. Most Hong Kong lawyers are better than mainland lawyers. It’s all about education. HK lawyer educated by UK law system, and with their language strenght , they ‘re able to access more resources and connections. I feel like people don’t trust lawyer in China, their talk and appearance just don’t show us confident and honest.

  10. I would particularly emphasize your point No. 2. While there are some very well connected lawyers who, if they were retained, would give you or your firm some gravitas there are many more that may have less connections or “power” then you could get by simple being a “foreigner” in China that wants to do business. There have been countless times were people have been able to get to see the “person in charge” simple because they were American but where their Chinese counterpart was left at the door drinking tea. In regards to point No. 3, I think it is equally true that client’s idea of what a lawyer should is not that a lawyer should tell them what needs to be done to stay within the law or correct when outside of the law but rather to assist them in accomplishing the goal whether within or without of the law. Consequently, they seek and find lawyers that fit their idea of what a lawyer’s role is. That lawyer is oftentimes that kind that will say yes to everything.

  11. Dan,
    I have spent many years as a foreign lawyer at a “top” Chinese law firm and I just want to say that I agree with you 100% about what you say about Chinese lawyers. I have tried to get my firm to change, at least when dealing with American clients, but since business just keeps coming in, they have never felt the need. With business now slowing, they are now finally coming to me (for the first time) to ask what American companies want and expect from their lawyers. I do not think they are going to listen to me, but at least they are asking.

  12. I agree with your observations in that it mirrors my own experiences with Chinese and Korean lawyers. Getting the Korean lawyer to be helpful and communicative required heavy micro-management and many phone calls, but resulted in resentment from the lawyer.
    I would add that Taiwanese lawyers are not that different from mainland lawyers in some respects. Moreover, their role is more often a clerk than a power player- not providing (or allowed to provide) the same value that a US lawyer, for example, could bring.

  13. I agree with your observations in that it mirrors my own experiences with Chinese and Korean lawyers. Getting the Korean lawyer to be helpful and communicative required heavy micro-management and many phone calls, but resulted in resentment from the lawyer.
    I would add that Taiwanese lawyers are not that different from mainland lawyers in some respects. Moreover, their role is more often a clerk than a power player- not providing (or allowed to provide) the same value that a US lawyer, for example, could bring.

  14. My experience in Taiwan working with locally trained lawyers differs a bit from your observation at #3. The few matters on which I’ve worked where a U.S. client wanted advice on Taiwan law saw the Taiwan attorney saying, essentially, “Sorry. Can’t do it. The law says so,” at every step of the way. On matters where I was staffed alongside a locally-trained attorney, I had to always remind them: The client isn’t asking whether she can do something. She’s going to do it, and she merely wants to know how to tweak it so that it is (arguably) legit.

  15. My experience in Taiwan working with locally trained lawyers differs a bit from your observation at #3. The few matters on which I’ve worked where a U.S. client wanted advice on Taiwan law saw the Taiwan attorney saying, essentially, “Sorry. Can’t do it. The law says so,” at every step of the way. On matters where I was staffed alongside a locally-trained attorney, I had to always remind them: The client isn’t asking whether she can do something. She’s going to do it, and she merely wants to know how to tweak it so that it is (arguably) legit.

  16. Power broker as a role is not allowed in Chinese legal context. Of course some lawyers do this role and are very likely go to jails finally, because you cannot broke power in China without paying officials.

  17. Power broker as a role is not allowed in Chinese legal context. Of course some lawyers do this role and are very likely go to jails finally, because you cannot broke power in China without paying officials.

  18. As a US attorney having worked for many years at top local law firms in each of Taiwan and Japan, I can say that points 1 & 4 on China are equally applicable to Japan and Taiwan. However, my firms in Taiwan and Japan respectively were/are loaded with power-brokers, and we often got/get deals done that other firms most likely could not have done, because of the ability to go straight to the top of ministries from which we needed approvals.
    With respect to point 3, like some other commentators, I have found the resounding answer to clients’ “can we do this/how can we do this?” questions to be “no/you can’t.” I share JustTruth’s frustration in trying to explain to colleagues that US (and most Western) clients want solutions from proactive lawyers, not judgments derived from regurgitation of civil codes. However, my US-style proactive lawyering has made me all the more valuable to and beloved by my clients, who often express their gratitude by saying “we couldn’t have done it without you.” US and Commonwealth attorneys should enjoy that edge while we still have it.

  19. As a US attorney having worked for many years at top local law firms in each of Taiwan and Japan, I can say that points 1 & 4 on China are equally applicable to Japan and Taiwan. However, my firms in Taiwan and Japan respectively were/are loaded with power-brokers, and we often got/get deals done that other firms most likely could not have done, because of the ability to go straight to the top of ministries from which we needed approvals.
    With respect to point 3, like some other commentators, I have found the resounding answer to clients’ “can we do this/how can we do this?” questions to be “no/you can’t.” I share JustTruth’s frustration in trying to explain to colleagues that US (and most Western) clients want solutions from proactive lawyers, not judgments derived from regurgitation of civil codes. However, my US-style proactive lawyering has made me all the more valuable to and beloved by my clients, who often express their gratitude by saying “we couldn’t have done it without you.” US and Commonwealth attorneys should enjoy that edge while we still have it.

  20. I worked for a US MNC, and we had an in-house chinese lawyer, based in Beijing HQ. The guy was useless. He didn’t report to our group anyway, so I never knew what he was doing. On the other hand, we had a very bright young paralegal in our Shanghai office. They would not give us legal opinions, per se, but knew in detail the important regulations on labor law, contract law, arbitration, etc… I would suggest going this route – get a smart young person who can get you the facts, and figure it out yourself. Putting “lawyer” after someone’s name in China seems to turn that person into a useless, pedantic bureaucrat.

  21. I worked for a US MNC, and we had an in-house chinese lawyer, based in Beijing HQ. The guy was useless. He didn’t report to our group anyway, so I never knew what he was doing. On the other hand, we had a very bright young paralegal in our Shanghai office. They would not give us legal opinions, per se, but knew in detail the important regulations on labor law, contract law, arbitration, etc… I would suggest going this route – get a smart young person who can get you the facts, and figure it out yourself. Putting “lawyer” after someone’s name in China seems to turn that person into a useless, pedantic bureaucrat.

  22. I particularly concur with Insider’s comment, and the other commenters all make valid observations. When faced by local lawyers with the comment “you don’t understand, this is China,” I respond with “you don’t understand, this is the client.” In other words, don’t just tell us the limitations; we know that already. We’re not paying U.S.$ hundreds/hour for what the reference desk at the public library (be it NYC or BJ) can tell us. Either become creative or step aside. Oh, and by the way, keep it legitimate and don’t even think about ways that run afoul of the law; bad karma, and it catches up fast. If you have to spend three times as long educating local counsel about what you want, then do it. If you still hit a brick wall, change counsel. Don’t be afraid to seek conferences with administrative and judicial personnel to speak directly; their own contact with local counsel can be an inherent stumbling block, whereas they may relish the opportunity to educate the outsider and,on occasion, share ideas and possibilities. Just do it.

  23. I particularly concur with Insider’s comment, and the other commenters all make valid observations. When faced by local lawyers with the comment “you don’t understand, this is China,” I respond with “you don’t understand, this is the client.” In other words, don’t just tell us the limitations; we know that already. We’re not paying U.S.$ hundreds/hour for what the reference desk at the public library (be it NYC or BJ) can tell us. Either become creative or step aside. Oh, and by the way, keep it legitimate and don’t even think about ways that run afoul of the law; bad karma, and it catches up fast. If you have to spend three times as long educating local counsel about what you want, then do it. If you still hit a brick wall, change counsel. Don’t be afraid to seek conferences with administrative and judicial personnel to speak directly; their own contact with local counsel can be an inherent stumbling block, whereas they may relish the opportunity to educate the outsider and,on occasion, share ideas and possibilities. Just do it.

  24. I’m a Chinese lawyer studying in U.S. Most of ur comments on Chinese lawyers appear to be true, at least to me. I think part of the reason for that (the easiest part) lies in the legal education we received in Chinese law schools. There we are not trained to ask why but say yes and follow those rules, despite that sometimes the rules are confusing and don’t make much sense. There are also cultural and political reasons (which are difficult to elaborate here). frankly, as long as something else in the whole picture remains unchanged, you can’t expect Chinese lawyers to act and think in the same way like their US counterparts.

  25. I’m a Chinese lawyer studying in U.S. Most of ur comments on Chinese lawyers appear to be true, at least to me. I think part of the reason for that (the easiest part) lies in the legal education we received in Chinese law schools. There we are not trained to ask why but say yes and follow those rules, despite that sometimes the rules are confusing and don’t make much sense. There are also cultural and political reasons (which are difficult to elaborate here). frankly, as long as something else in the whole picture remains unchanged, you can’t expect Chinese lawyers to act and think in the same way like their US counterparts.

  26. China Law. Creatives Need Not Apply?
    Leslie Forman over at the Beijing Corporate Training Blog did an interesting post the other day regarding a conversation she had with a Chinese lawyer on creativity. The post is entitled, “Creativity in the Context of Chinese Legal Work” and it relates…

  27. China Law. Creatives Need Not Apply?
    Leslie Forman over at the Beijing Corporate Training Blog did an interesting post the other day regarding a conversation she had with a Chinese lawyer on creativity. The post is entitled, “Creativity in the Context of Chinese Legal Work” and it relates…

  28. As a PRC attorney trained in American firms in the United States, I deeply understand the difference on the practice between US and PRC attorneys , as the 4th point expresses. It is, however, the opportunity that US law firm have to drive into China. When I was in Washington DC, I mentioned a proposal to DLA Piper DC Office, which aimed to provide legal training program and necessasy re-organization to PRC firms in China, for many fast developing PRC firms need outside drive to a higher level. The time will prove that a good PRC attoreny in US term comes only afer being trained by US style.
    Until now I am not a good attoreny in US term for I need more practice with US counterparts, however, I am at least OK with US style practice, thanks to the experince in DC offices of several law firms.

  29. As a PRC attorney trained in American firms in the United States, I deeply understand the difference on the practice between US and PRC attorneys , as the 4th point expresses. It is, however, the opportunity that US law firm have to drive into China. When I was in Washington DC, I mentioned a proposal to DLA Piper DC Office, which aimed to provide legal training program and necessasy re-organization to PRC firms in China, for many fast developing PRC firms need outside drive to a higher level. The time will prove that a good PRC attoreny in US term comes only afer being trained by US style.
    Until now I am not a good attoreny in US term for I need more practice with US counterparts, however, I am at least OK with US style practice, thanks to the experince in DC offices of several law firms.

  30. I would particularly emphasize your point No. 2. While there are some very well connected lawyers who, if they were retained, would give you or your firm some gravitas there are many more that may have less connections or “power” then you could get by simple being a “foreigner” in China that wants to do business. There have been countless times were people have been able to get to see the “person in charge” simple because they were American but where their Chinese counterpart was left at the door drinking tea. In regards to point No. 3, I think it is equally true that client’s idea of what a lawyer should is not that a lawyer should tell them what needs to be done to stay within the law or correct when outside of the law but rather to assist them in accomplishing the goal whether within or without of the law. Consequently, they seek and find lawyers that fit their idea of what a lawyer’s role is. That lawyer is oftentimes that kind that will say yes to everything.

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