Some issues of corporate legal advice

The country’s increasingly strong globalization trend and international economic integration have created many opportunities and challenges for businesses. The development of businesses as well as the challenges in the new context have made businesses pay more attention to the legal consulting services of lawyers.

Enterprises require legal advice to operate and do business in accordance with the law; to prevent legal risks, protect their legitimate rights and interests. Enterprises have become the main source of clients and bring high income for lawyers. Legal consulting activities for businesses also become one of the legal services and main professional activities of lawyers. Many lawyers develop their careers in the direction of specializing in business consulting, providing professional and specialized business consulting services.

This article outlines a number of theoretical issues about corporate consulting and the skills of lawyers in corporate law consulting.

1. Business consulting concept and characteristics

“Business consulting” is a short term of “legal consulting on enterprises”, “legal consultancy for enterprises”. Speaking of “legal consulting on business” is referring to the field and content of consultation. Referring to “legal advice for businesses” is referring to the object that requires consulting, consulting, or referring to the lawyers’ clients who are enterprises.

1.1. Business concept and business types

Enterprise means an economic organization with its own name, assets, stable transaction office, and is allowed to register its business in accordance with law for the purpose of carrying out business activities [1]. Business is the continuous execution of one or several stages of an investment process, from the production to the sale of products or provision of services on the market for the purpose of profit [2].

Depending on research purposes and different classification criteria, businesses are divided into many different categories. Considering from ownership signs, enterprises can be divided into state-owned enterprises, private enterprises, enterprises of socio-political organizations, … In terms of methods of capital investment, yes Enterprises can be divided into domestic and foreign invested enterprises. Based on the legal form of the enterprise regulated under the Enterprise Law 2005, there are the following types of businesses: Limited liability companies (including single member limited liability companies and liability companies Limited with two or more members), joint-stock companies, joint-venture companies and private enterprises.

1.2. Enterprise consulting concept and characteristics

To understand what business consulting is, first of all, it is necessary to learn the general concept of legal advice. Legal consulting is one of the legal services and major professional activities of lawyers. Article 4 Law on Lawyer 2006 noted: “Legal services of lawyers include participating in proceedings, legal advice, representation outside the proceedings for clients and other legal services”. Article 28 Law on Lawyers in 2006 defines: “Legal advice is the law’s guidance, giving opinions, helping clients to draft papers related to the implementation of their rights and obligations”.

From the general concept of legal advice, we can define “enterprise consulting” as follows: “Business consulting is the legal consultancy activity of lawyers to enterprises, related to the establishment, operation and termination of the operation of an enterprise, including the guidance of lawyers, giving opinions, helping the enterprise draft papers related to the implementation of the rights and obligations of the enterprise ”.

Through the above definition, we can draw some characteristics of business consulting:

Firstly, corporate consulting is legal consultancy performed by lawyers. In the research scope of this topic and the above definition of the author, business consulting in particular and legal advice in general are activities performed by lawyers. Lawyers are people with the qualifications and skills to provide a careful and in-depth consultation.
Second, business consulting is manifested in many aspects:
+ Lawyers can advise businesses by giving guidance for businesses to exercise their rights and obligations. The content of the request for advice of the business in this case is often the question: “What should I do?” The results of this consultation require lawyers to offer solutions for businesses to implement.

+ The lawyer can also advise the business to give legal opinions, that is to give opinions, judgments and assessments of the lawyer about the content of a certain consultation request of the business. The content of the request for advice of the business in this case is often the question: “How is this problem? Right or wrong?”.

+ Lawyers can also advise by helping businesses draft documents required by the business. For example, drafting Company Charter, Contract, drafting letter, negotiating letter with partner, request for debt recovery, notice, …

In fact, a lawyer’s consulting practice is usually a combination of all of the above-mentioned manifestations. For each consulting request of an enterprise, the lawyer will first give an opinion, then advise the solution, guide the enterprise to implement it and in many cases, at the request of the enterprise, the lawyer will Drafting helps businesses with the necessary documents to implement the legal solutions that the lawyers have raised for businesses to choose from.

Business consulting is an extensive field of consulting. Business consulting is an intensive consulting area with typical customers as businesses. However, this is also a rather large field of consulting, including the law branches, legal institutions, legal regulations related to the establishment, operation and termination of enterprises. Enterprises of all economic sectors have the right to conduct business activities which are not prohibited by law [3]. This makes business activities very rich and diverse.
Consulting business is not only “encapsulated” in the Enterprise Law, Commercial Law but also has to apply and apply many other legal documents: Civil Code, Labor Code, Land Law, Bankruptcy Law, tax legal documents, specialized legal documents (Real Estate Business Law, Securities Law, …), … even in many cases, international treaties must be applied. (WTO accession commitments, Double taxation avoidance agreement, bilateral trade agreement,…), international practices (Incoterms 2000, 2010; UCP 600,…).

From the definition and characteristics of business consulting, we can also see the role of this activity. The role of business consulting is to answer the law, guide enterprises to behave in accordance with the law; protect the legitimate rights and interests of the business and avoid business risks.

2. Some basic principles of business consulting activities

General legal advice and business consulting are activities that require careful and profound intellectual labor. Therefore, when consulting, lawyers must adhere to some of the following basic principles:

Principles of law compliance: Article 5 of the Law on Lawyers 2006 stipulates that one of the practice principles of a lawyer is to comply with the Constitution and the law. Point b, Clause 2, Article 21 of the Law on Lawyers 2006 also stipulates that lawyers are obliged to use legal measures to protect legitimate rights and interests of clients. Lawyers advise, offer solutions for clients but cannot teach, suggest that clients violate the law or do not respect the law.
Principles of avoiding conflicts of interest: Lawyers are not allowed to advise businesses whose interests are in conflict. Therefore, before choosing a consulting business, lawyers must check the issue of conflicts of interest.
Information security principles: Clause 1, Article 9 of the Law on Lawyers 2006 stipulates “confidentiality”, which requires lawyers to keep client information confidential. In corporate consulting activities, enterprises can provide lawyers with many information and documents related to their business activities and lawyers are obliged to keep those documents confidential. confidentiality agreement between the two parties and other regulations.
The principle of honesty, objectivity: This principle emphasizes the prestige and capacity of a lawyer to advise the business. “Honesty” means a lawyer who is honest about his capacity to customers, honest about expenses. fees and effort that lawyers have spent to calculate remuneration. “Objective” means that in the process of consulting for businesses, lawyers must respect objective truth.
In addition to the above basic principles, in the course of a lawyer consulting for a business, a lawyer must also comply with the Code of Ethics and Professional Conduct of Lawyers.

3. Business consulting forms

There are different forms of business consulting according to different classification criteria.

Based on the way of conveying and conveying consulting content, business consulting can be divided into two forms: written corporate consultation (including electronic documents) and verbal consulting. to speak.

Based on the means of consulting, it is possible to divide consulting activities in the forms of: email consulting, printed paper consultation, telephone consultation, …

Based on the level of regular consultation, business counseling is divided into regular consultation and case-based consultation. Regular consultation can be done through the company’s internal attorney (in the form of a labor contract) or through a regular legal consulting service contract between the enterprise and the lawyer or executive organization. lawyer. Counseling on a case-by-case enterprise means the lawyer’s providing legal services to advise the enterprise on each specific case upon request. Each case consultation is usually done under a separate legal services contract.

4. Types of business consulting activities

Business consulting is an extensive field of consulting, with many different types of consulting, including five main types of business consulting:

Firstly, consulting on establishment, reorganization, dissolution and bankruptcy of enterprises.

The scope of this kind of consultation is very diverse, including explaining some legal provisions related to the business; Help customers choose the plan of establishment, reorganization, dissolution and bankruptcy of enterprises; help customers draft documents, documents, prepare business registration documents for establishment, reorganization, dissolution; performing the necessary work in the business bankruptcy filing process; In many cases, the attorneys representing the client perform relevant administrative procedures, …

During the establishment and business registration activities for businesses, lawyers often meet the following consulting requirements: consulting on choosing the right business form; providing advice on establishment and business registration conditions for the selected enterprise; consulting on business establishment and registration procedures for businesses; help clients to prepare business registration documents, submit and perform other procedures at the business registration office for the enterprise to receive the business registration certificate; Consulting the implementation of post-business registration procedures to put the business into operation.

In business reorganization activities, lawyers often meet the following consulting requirements: Consulting to choose the form of business reorganization in accordance with the needs of clients (merger, consolidation, division, split, transformation of the enterprise’s legal form); consulting on conditions and procedures for the reorganization of the enterprise according to the chosen customer plan; help customers to convene meetings of the internal management agency of the business to review and decide on the reorganization of the business in a specific form and draft relevant documents; prepare dossiers of enterprise reorganization and send them to the business registration office; help customers implement the work necessary to organize activities for businesses in the new model; consulting to resolve conflicts within enterprises related to business reorganization.

In business dissolution activities, lawyers often meet the following consulting requirements: Counseling on conditions and procedures for the dissolution of enterprises; help clients convene meetings of internal management agencies of enterprises to consider and decide on dissolution of enterprises; drafting of documents related to the decision to dissolve the enterprise; prepare documents for dissolution of enterprises and send them to relevant agencies; help customers to deploy the necessary work to dissolve the business; consulting to resolve conflicts between members and shareholders of enterprises arising from the dissolution of enterprises.

In corporate bankruptcy operations, lawyers often meet the following consulting requirements: Counseling to recognize the signs of businesses falling into bankruptcy; advice on conditions and procedures for enterprise bankruptcy; help clients to prepare dossiers of request to declare corporate bankruptcy or to reply documents at the request of a court to resolve corporate bankruptcy claims; prepare necessary documents and papers related to the resolution of corporate bankruptcy for submission to the Court; assisting enterprises in developing plans to reorganize their business operations to submit creditors’ conferences; consulting on issues in order to preserve assets of indebted businesses; consulting on the solution of rights for related subjects (employees, creditors, owners of enterprises) when liquidating the enterprise’s assets; Counseling on legal consequences arising when the enterprise is declared bankrupt; In many cases, the corporate attorney is fully authorized to participate in the bankruptcy settlement proceedings at the Court. However, compared with other consulting activities, bankruptcy counseling is less common in practice.

Second, the internal management consulting of enterprises.

Legal advice in the internal management of the enterprise is to answer the law, guide enterprises to behave in accordance with the law with the aim of adjusting the relationships of entities participating in the business such as shareholders, capital contributor, Board of Directors, Director, employees or other related persons and measures for these people to realize their interests [4].

Consulting business internal management to help businesses operate well and implement business strategies; avoid internal conflicts in enterprises, develop good business strategies and improve enterprises’ access to capital.

Consulting on corporate internal management includes a lot of content, including some of the following basic contents:

Design consultancy for internal corporate management structure: is consulting on corporate governance model based on the following factors: legal form of the enterprise, size of operation and form of association. the business’s dependent units and the owner’s aspirations.

Consulting on the allocation of power in the enterprise: power distribution in the enterprise is the distribution of power between the owner and the administrator, administering the business, ensuring the rights of the owner and ensuring the right of governance. independence of the business administrator. Consulting on power allocation in the business to ensure there is no overlap in the functions and duties of each department; ensure businesses a mechanism to develop business strategies and a mechanism to implement these strategies; ensure the strict implementation of the provisions of law on the rights and obligations of the owner, the administrative and administrative body in the enterprise.

Consult to complete the internal management document system of the enterprise: The internal management documents of the enterprise include documents in the legal documents of the business (Charter, Enterprise registration certificate , seal records, account records …); internal management documents of the enterprise (this is the type of document issued by the enterprise to divide power, define functions, tasks, scope, limit of power and responsibility of ministries At the same time, regulating the relationships and coordination between internal departments of the enterprise) and case documents (documents issued by the company to solve a specific job arising in activity of the business such as a decision to appoint or dismiss a title,…).

Advice in controlling large and profitable transactions: Transactions with large value are transactions with value greater than 50% of the total value of enterprise assets recorded in the near financial statements. or a smaller percentage is specified in the enterprise charter. Transactions that easily generate self-interest are usually transactions between an enterprise and its “related person”. This consulting activity helps businesses avoid risks in business activities.

Advice on operating principles and procedures for approving management decisions of the enterprise: including principles and processes for promulgating resolutions of the Members’ Council, General Meeting of Shareholders; operating principles and decision making process of the Board of Directors in a joint stock company; advice on the scope of responsibility of the manager and operator of the business.

Third, consulting on the use of employees in enterprises.

Consulting on employment in enterprises including labor recruitment consultancy; management consulting, using labor in enterprises (including consulting on building labor regulations, consulting on building collective labor agreement); counseling in the process of labor management and use (temporary transfer of workers to other jobs in contravention of profession, counseling on disciplining employees); Counseling on termination of labor relations (consulting on terminating labor contracts in case enterprises change industrial structure; consulting on terminating labor contracts in case regular employees fail to complete successfully assigned work).

Fourth, consulting on corporate finance.

Consulting on corporate finance includes consulting on legal regulations on capital and assets of different types of enterprises; consulting on legal regulations on creation, mobilization, management, use and disposal of resources. capital and assets of the enterprise; legal advice on profits and distribution of profits of the business; advice on tax laws applicable to enterprises.

Fifth, consulting on industrial property rights.

Industrial property rights of an enterprise are the enterprise’s rights to inventions, industrial designs, layout designs of semiconductor integrated circuits, trademarks, trade names, geographical indications, and business secrets due to you create or possess and have the right to oppose unfair competition. Advice on industrial property rights of enterprises includes consulting on registration procedures for protection of industrial property objects subject to registration, procedures for renewal, drafting of related documents, … In some schools Accordingly, industrial property consulting attorneys must have special training and be licensed by the National Office of Intellectual Property.

5. Requirements, skills of business consulting lawyers

5.1. Requirements for business consulting attorneys

In order to give good advice to a business, a lawyer needs to meet some of the following basic requirements:

Mastering legal consulting skills (analyzed below);
Mastering the laws governing enterprises: not only master the Enterprise Law, Commercial Law but also have to apply and apply a lot of other legal documents: Civil Code, Labor Code , Land Law, Bankruptcy Law, tax legal documents, specialized legal documents (Law on Real Estate Business, Law on Securities, …), even in many cases, must apply the International treaties (WTO accession commitments, Double taxation avoidance agreement, bilateral trade agreement,…), international practice (Incoterms 2000, 2010; UCP 600,…).
Lawyers must be able to use and exploit information, skills in using computer software, internet and foreign languages, to meet the needs of enterprises to consult on international business activities.
5.2. Business consulting skills

As well as general legal consulting skills, business consulting skills include basic skills corresponding to the following stages:

One is the skill of contacting customers, finding consultation requirements.

Contacting clients, inquiry can be done in many forms: directly at the lawyer’s office or by phone or via email and other means of communication. Whatever the form, lawyers also need to have communication skills to contact clients, and skills to analyze problems, exploit information to find out consulting requests. In the process of contacting and understanding clients’ consulting requests, lawyers need to listen and ask questions; identify information and documents to collect. In many cases, lawyers also need to know how to get a client presentation to the right focus. When dealing with clients, lawyers need to pay attention to outfits, attitudes must be polite, courteous and proper; build trust in customers.

When contacting clients and seeking advice, lawyers need to grasp initial information about: the nature of the case, the urgency of the case, documents mainly related to the record, the information customer news.

To grasp the facts, lawyers need to be able to generalize and concretize; shed light on questions related to the incident: Who? What? When? Where? How? Why?

Second, legal service contract agreement skills.

At the end of the consultation request inquiry phase, the lawyer can give a judgment on the preliminary conclusion about the case; assessing the nature and foreseen the scope, workload, time and personnel to handle the work, from which there is a basis to offer consulting service fees with enterprises and sign a legal service contract physical.

If it is a regular form of consultation, a legal service contract may have been signed before seeking consultation.

Third, the skill of determining legal issues.

This is a very important stage in consulting activities, affecting the results of consulting activities. The essence of legal problem identification is to thoroughly and thoroughly research the client’s profile and information provided and find the key issues to be solved. When determining a legal issue, the lawyer needs to come from the client’s question that you want the lawyer to answer.

Fourth, the skill of determining applicable laws.

Determination of legal issue is finding out the legal question of the consulting request content. The law is the place to find the answers to those legal questions. When looking up legal documents, lawyers need to determine the spatial and temporal validity of applicable legal documents; rely on the legal nature of the data to identify the legal areas and legal documents to study; Legal questions have been identified to find relevant legislation. When searching for legal documents, lawyers not only study legal documents but also comprehensively study legal documents, including all sub-legal documents guiding those legal documents. The process of applying legal documents to customers’ situations is the reasoning process to answer legal issues raised by the enterprise advisory content.

Lawyers need to improve the ability to use online tools (online via the internet) to search for legal documents, ensuring the speed and accuracy. For example, a lawyer can search legal documents through the Goohle search engine, Official Gazette: http://congbao.chinhphu.vn/, the National Assembly legal document data site: http: // vietlaw .gov.vn, of the Government: http://vanban.chinhphu.vn/portal/page/portal/chinhphu/hethongvanban, legal documents system of the Ministry of Justice, websites providing online legal documents such as http://Luatvietnam.vn, http://thuvienphapluat.vn, … The use of online legal documents helps lawyers easily systematize relevant legal documents, look up the validity of documents. , …

Fifth, consulting skills.

A lawyer can give advice in many forms: in person, by phone, by email or by an official document signed by the lawyer, with the seal of the law practice organization. Regardless of the form of reply, the consultation reply must be logical, succinct, accurate, appropriate language, polite, clear and understandable office; timely reply.

In case of answering in writing, lawyers need to be absolutely careful about the content of counseling. Responding to written advice, lawyers must pay attention to text presentation techniques, ensure the professionalism and style of the lawyer and the balance and harmony of the text.

In order to prepare well consultative documents, in addition to lawyers knowledgeable about the law, carefully prepared before writing, identifying the recipients of consulting documents, determining written content, lawyers must also have good skills. additional functions such as text editing skills, office computer skills. In this day and age, lawyers need to type consulting reply, use office computer software (Microsoft Word) proficiently to format and present documents beautifully and professionally.

In addition, the lawyer must use the correct Vietnamese language (spelling, grammar), accuracy, and clarity. In the process of drafting answer letters, lawyers should choose words, carefully consider how to use words to use words that are “expensive” and of high persuasive value. Legal terms must be used correctly, legal style must be used appropriately.

For consulting replies in foreign languages, mainly in English, the basic principles of Legal English must be followed, ensuring grammar correctness.

AUTHOR:admin

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