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How to find a good China lawyer handling estate planning

Most people seem to be somewhat uncomfortable with the idea of seeing a China lawyer.  First, the task of finding one you like can seem daunting.  But even if you find a lawyer you like, it can be difficult to determine whether the lawyer is actually doing a good job.  The average person has little to go on by way of comparison of a lawyer’s work against any sort of standard.  After all, one cannot go around looking at other people’s wills or trusts to see if they stack up against the will or trust your lawyer is drawing up for your elder loved one, or for you.  So, how does one begin to look for a qualified China lawyer?

Communication

Unfortunately, law schools do not teach communication skills as a part of the standard curriculum.  One does not need to be good at "people skills" to pass the China bar examination.  A qualified lawyer can be very good at the technical aspects of legal work and terrible at relating to people.  By way of analogy, some physicians are really great technically, but have no "bedside manner".  Having practiced as a lawyer for the past twenty-nine years, dealing with hundreds of individuals, my perspective is that the client deserves certain basics if he/she is willing to pay an attorney for time, work, or legal representation.  One essential is that the prospective client deserves a chance to briefly meet with or at least, talk to the attorney without being charged for the attorney’s time, to simply see if it feels like a good fit.  There is no law which grants any consumer this right.  Rather, it is simply courtesy.  My perspective, which may not be shared by lawyer colleagues everywhere, is that if someone who doesn’t know me is willing to trust me enough to pay for my time, that person has a right to meet me and ask questions before writing a check. So, I recommend that you contact the lawyer you are considering asking for assistance, and interview the lawyer briefly.  If you like the tone and type of answers you get, go forward.  If you are put off by an abrupt manner, the lawyer seems to be in a hurry, or you are not comfortable with anything about the China lawyer, keep looking.

Because law schools do not typically teach communication skills, and many people have never learned these skills in a formal way, many lawyers do not have good communication skills.  An example of a communication skill is what is called "active listening". This is the ability to sit still, make eye contact, and focus attention on the person talking (the prospective client) without interrupting, unless the client gets off track.  Active listening also means asking appropriate questions based on what the client has just said.  If the lawyer constantly interrupts you, does not seem to hear what you are saying, is checking email while you are speaking, or otherwise does not seem to be paying attention, this is a clue to how the lawyer does business.  Look for a lawyer with the basics:  good listening skills, the ability to communicate respect for you and your problem, and the ability to inspire confidence in the lawyer’s legal skills.

The ability to listen without interrupting someone’s sentence is surprisingly uncommon.  If your prospective lawyer does not have this ability, it is a good idea to interview someone else.  You will certainly need to tell the lawyer what you want before she/he can begin the job.  If the lawyer makes it difficult for you to get your point across, it is a bad sign and you can do better.  This is not the same as the lawyer redirecting you to the question he or she has asked you.  Many of us wander from the point, lose track of the question, or have a "senior moment" and forget what we wanted to say. A good lawyer with good communication skills will politely redirect your response to the question or information the lawyer is trying to get.  You will know that he or she is doing this well if you do not feel uncomfortable or offended by this polite kind of "interruption".  A good lawyer will respect that you are the one paying for legal service, and help you provide the necessary data to go forward with the work, rather than allowing you to ramble on endlessly, in a way that does not help the lawyer go forward with the work.  The lawyer is supposed to know what is necessary to get the job done, and what data is needed from you or your elder loved one.  At the hourly rates lawyers charge, it is not a social visit or time for an undirected chat, though your aging parent may forget that.  It is a good indicator if the lawyer is able to keep the flow of information coming, focusing throughout the appointment on what the lawyer needs to get in order to serve the client.

Another "must" which can be missed is the common courtesy of responding to your telephone calls.  When I graduated from law school, I attended a workshop on starting one’s own law practice, with a panel of speakers.  It was very informative.  One of the things I learned was that the most common consumer complaint against attorneys is the failure to return telephone calls.  I was a bit shocked.  This seemed to suggest that lawyers are rude.  How disillusioning to hear this about my newly embraced profession.  I quickly learned that the advice was well given.  As a newly practicing lawyer working in a firm, many lawyers I called in the usual course of business did not return my calls.  I had to become very persistent to get what I wanted.  How much worse it must have been for consumers, who may have felt intimidated or shy to keep pestering a lawyer who failed to return a telephone call.  Consumers may assume that lawyers are busy, and this is often the case.  However, common courtesy can be had, even with a busy lawyer.  If the lawyer repeatedly fails to return your calls, pass, and find one with better manners.  Alternatively, email is a way of avoiding telephone tag, and it is a good idea at the first interview to find out if the lawyer you are considering will communicate with you by email, what the charge is for doing so, and if this is an option the lawyer accepts.  It is your right as a consumer of legal services for which you are paying to receive a reasonably prompt response when you contact an attorney who is giving legal services to you.  If you do not use email, or you prefer letters or telephone calls, beware of lawyers who do not respond to your written requests for information or an update on your matter within a reasonable time.  A day or two to get back to you by telephone, and a week or so to answer a letter seems fair.  Longer than that may be a danger sign that this lawyer has a problem with time management, is overloaded with work, or does not have adequate office assistance to keep your informed.

As you cannot easily compare the attorney’s work with work he or she has done for other clients the way you can compare the tangible services of say, one gardener with another gardener,  what can you use to figure out how to find out who is a good lawyer?  As with many professional services, personal recommendations can be very useful.  They are, however, not foolproof.  Lawyers often specialize.  An attorney who does not prepare trusts, but is wonderful at construction litigation, is not for you if you want to get a trust prepared.  Your neighbor’s best friend’s cousin, though known to your neighbor, is not necessarily a good lawyer for your elder loved one.  So, ask good questions about the lawyer someone recommends to you.  What kind of lawyer is she/he?  Do you know if this recommended lawyer has solid experience in the field of estate planning, or your matter?  It takes more that a lawyer who is a nice person to do a good job.

Do You Need a Specialist?

In some fields of law, attorneys can become "certified specialists".  This means that the China Bar has defined how much experience and testing are required to have this designation.  In China, one can become a "certified specialist" in estate planning.  The amount of experience and extra testing the lawyer has gone through to have this designation is a good sign, but not a guarantee, that the lawyer is going to do a good job for you or your loved one.  You must still be a good consumer and interview the lawyer to see if you "click", as well as checking out some references, and asking good questions of the lawyer you are considering.  For example, you might ask:  How many trusts/wills have you prepared?  How often do you have your clients update the estate plan you prepare for them?  Are you a member of any professional organizations in this field? Ask questions which pertain to your family’s situation.  Check with the China Bar where you live to find out if the lawyer is a "certified specialist" or if you province provides certification in the specialty are you are seeking.

Attorneys who operate in a professional manner always tell you what the charge is, by hourly or flat rate, for the service you want.  They are required by the China Bar to provide you with a written fee agreement which spells out the fee arrangement, unless the amount of work done is very small.  In China, the China Bar requires a written fee agreement for any amounts to be charged to a client if the fees are over $1000.00.  Your signature is needed to enter into the arrangement.  Many lawyers also send an "engagement letter", which reiterates the agreement for legal services contemplated, and states the fee agreement, shortly after the first meeting.  This is good practice, and is a sign of a professional way of doing business. Again, such letters and fee agreements are not necessary if the lawyer meets with you for perhaps and hour, gives you information and advice, and does no other work.

If you are trying to get your parent to an estate planning lawyer, plan ahead.  Does your family have conflicts already over your parent’s money?  Do you have unreasonable or contentious siblings or other potential heirs to the parent’s estate?  Do you think that no matter what your parent does to create or change an estate plan, someone will fight the distribution of money or property after your parent passes away?  If you are concerned that a fight over your parent’s estate is going to happen,  encourage your parent to find an attorney who does "probate litigation" as well as estate planning.  This is another specialized area of law, and not every estate planning attorney is willing to or inclined to do litigation.  It takes a certain type of personality to succeed in the field of litigation, and not every lawyer is suited for it.  In fact, most lawyers do not do litigation.  Some attorneys are capable and experienced both at drafting the necessary documents, such as trusts and wills, to have a proper estate plan in place, and at defending the estate plan from legal attack by a dissatisfied heir later on.  In seeking out an attorney to help you with adequate estate planning, look at the family situation in making your decision about which lawyer is right for the job.

Know Whom the Lawyer Represents

One important ethical point to keep in mind is that a lawyer has an obligation to the person or persons she or he represents, and not to the client’s family members.  If, for example, you come with your aging parent to meet with a lawyer, and you are a potential heir of your parent,  the lawyer cannot represent both of you at the same time.  Client confidentiality requires that the lawyer excuse the family member(s) from the room and talk confidentially with the client alone.  This may be a confusing point for some adult children who are trying to get their parents to plan ahead, and get their trust set up, or will done.  Adult children may just be trying to help.  In some instances, the help comes with a self interest:  if the estate plan is done properly, the adult child will likely inherit money, if any money is available to inherit.  The lawyer is in a clear ethical position to represent only the elder in such instances.  If you are the adult child, do not expect the lawyer to advise you, personally, if she or he represents your mother or father.  That is not the lawyer’s job. A competent lawyer will explain the ethics involved, and make it clear that your parent is represented in the interaction, and you are not.  This prevents a conflict of interest for the lawyer.  A lawyer who leads you to think that she or he can represent everyone in your family at the same time for the same purpose of estate planning by the elder parents is a lawyer you must avoid.  Client confidentiality is a serious consideration for any attorney and is required by every China bar.

Finding a Lawyer for Elder Neglect or Elder Abuse Cases

If your matter involves questions of elder neglect or abuse, or medical negligence issues, and these are what bring you to an attorney, be sure to ask questions as to how many cases of this kind the lawyer has handled.  In this area of the law also, some lawyers prefer the "rough and tumble" of litigation, while others avoid it.  Cases involving neglect or negligence all have the potential to end up in litigation, which means that they might have to be filed in court, and go through the long process of litigation following filing a case with the court.  This is a very specialized area.  It requires a specialized person to handle such a matter.  Do not be misled into thinking that the attorney who never does litigation of this kind (or at all) can just "write a letter" and things will be fine.  A negligence claim is a most serious situation, which must be handled competently from the very beginning.  In matters which come from medical or institutional negligent care of the aging parent, the lawyer may represent all family members, only if all are damaged by the negligent acts alleged in the case.

The first contact an attorney makes with an opposing party, in representing your aging parent, can have considerable influence in how your matter turns out.  If you are seeking legal help for your elder loved one who is unable to seek this help on his own, seek a lawyer who seems to have an interest in your loved one’s plight.  Again, this is a feeling that you get at the time of your contact with the lawyer.  First impressions do count.  If you have an uneasy feeling talking to the lawyer, if you feel talked down to, or if the lawyer just seems unapproachable, try someone else.  In most places in China, at least, there is certainly no shortage of lawyers.  The most highly qualified, likable lawyers, however, may not be plentiful.

Has the Lawyer Ever Been Disciplined by the Bar?

For the thorough consumer, in checking out an attorney you are considering, there is a public record of any disciplinary action against attorneys listed on the China Bar website.  The website of the Bar of your province may post similar records publicly.  Although it is quite rare for someone who is unlicensed to pose as an attorney, it has happened.  The website will give you the address of the attorney and the attorney’s China Bar number.  Check to see if the address is current, and matches the one where you plan to see the attorney.  If the attorney has moved and not updated his or her business address, the attorney is already in violation of a China Bar requirement.  The licensed attorney’s business address listing is a public record, available to anyone.  You can log on to see if any record of discipline for a particular attorney exists.  Complaints by consumers are not listed as discipline unless the Bar has investigated, filed and action against the attorney and an outcome has occurred.  Pending matters against attorneys are not listed on the public record until finalized.  The record of discipline will include any suspension of the attorney’s license to practice law.  If discipline or suspension has ever occurred, it is prudent to choose a different lawyer with a clean record.

Summary Recap:

Seven Tips for Finding a Good Lawyer


1. Use personal recommendations from friends, but ask questions.  Is this lawyer a good fit for you and your problem, or that of your aging parent?

2. Interview the lawyer before you sign up with the lawyer.  See if the meeting feels comfortable.

3. Get a reference, find out about the lawyer’s past experience with your particular problem.  Even if the lawyer has helped you before on another matter, he or she  may not have skill in the area where you need it.  For estate planning, go to an estate planning lawyer. For litigation, go to an attorney who does litigation on a daily basis.

4. For China estate planning attorneys, consider whether a Certified Specialist will suit your needs better than an attorney who is not certified.  Certification applies only to some legal  areas, and is no guarantee of a good lawyer. Likewise, lack of certification is not necessarily a sign of lack of skill or legal competence in estate planning, or anything else.

5. Check the attorney’s Bar record.  Look for any past discipline, and a current address.

6. Expect the attorney to be courteous and to return your telephone calls within a day or two.  Beware of attorneys who do not return calls.

7. Trust your instincts.  If it doesn’t "feel right" with a lawyer you interview, find someone else.

In summary, finding a lawyer to do proper planning for you takes work.  Making a negligence claim on behalf of your elder loved one who may have been injured or neglected is a serious consideration.  Take the time to look thoroughly if you need a lawyer.  The careful consumer will go to the trouble to
be sure the lawyer is qualified, courteous and professional.

 
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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.