[Direct answer]It's not necessarily included, and the agreement in the consultant contract shall prevail. According to Article 29 of the Law of the People's Republic of China on Lawyers (amended in 2017 and implemented on January 1, 2018), lawyers who serve as legal consultants shall provide services in accordance with the agreement, and their duties may include representing clients in litigation, mediation or arbitration activities. In practice, the annual fee for legal consultants usually covers non-litigation matters such as daily consultation and contract review. Representing clients in court often requires signing a separate litigation power of attorney and charging fees separately. Some companies also package a certain number of litigation cases into an annual agreement. Before signing the contract, the service list should be checked item by item, and reference can be made to it.Intellectual property protection and corporate legal servicesLearn about the advisory service model, or visitBeijing Henglue Law FirmVerify the team's information.

I. Problem Background and Typical Scenarios

After signing an annual legal advisor contract, a company encounters litigation and casually requests the advisor lawyer to appear in court. The lawyer points out that additional fees must be paid for this service, which the company perceives as a "trick". Conversely, some advisory agreements also include a blanket promise of "litigation services", but during the actual litigation process, both parties argue over the number of cases and the court level involved. The common root of these two scenarios is that the contract fails to clarify whether court representation is included, the scope of such representation, and the billing method. Moreover, the division of responsibilities for court representation between the legal department and external advisors, as well as the authorization arrangements for multiple entities in a corporate group, often reveal problems only when litigation is imminent. This may result in delays in responding to lawsuits at best, or even hinder the progress of legal proceedings due to authority-related flaws at worst.

II. Key points of contention

  • The contractual agreement takes precedence: Article 29 of the Lawyers Law clearly stipulates that services shall be provided in accordance with the agreement, and verbal commitments cannot bind the law firm; whether "litigation is included" or not shall be subject to the written terms and the service list, and vague expressions are the main cause of such disputes.
  • Court appearance authorization procedures: Even if the advisory contract includes litigation representation, an authorization letter and proxy formalities must still be completed in accordance with Article 61 of the Civil Procedure Law for each court appearance. The scope of authority is divided into general authorization and special authorization. If handled improperly, an embarrassing situation may arise where the attorney can appear in court but lacks the authority to make decisions.
  • Billing model selection: fixed annual fees plus separate charges for litigation, flat-rate fees for a certain number of cases, risk-based fees, etc. Each model has its own advantages and disadvantages. Companies often underestimate the likelihood of litigation when signing contracts, and end up in a passive position when negotiating fees during litigation.

III. Professional analysis by Henglue Law Firm

There are three practical observations of Henglu Law Firm in reviewing and drafting enterprise consulting contracts. Firstly, the service list should be quantified as much as possible: specify the response time for legal consultation, the number of contracts reviewed and the turnaround time, whether it includes lawyer's letters and collection support, whether court representation is included, the number of cases and trials involved, and the fee calculation rate; a quantified list is not only the basis for judging whether the service is fulfilled, but also a bargaining chip in renewal negotiations. Secondly, charging separately for litigation is the mainstream practice in the industry: litigation workload is large and the cycle is unpredictable. Most consulting agreements exclude it from the fixed annual fee. A more practical strategy for enterprises is to lock in preferential fee rates for the litigation stage in advance to avoid negotiating fees at the last minute. Thirdly, the value of the connection between consulting and litigation: consulting lawyers review contracts daily and grasp the transaction background. Once involved in litigation, they have a better grasp of the evidence. Enterprises can require consultants to leave traces during the contract review stage and cooperate in major litigations.Business and contract dispute resolution services for enterprisesThe team works together. It is recommended that the consultant agreement itself be drafted or reviewed by a professional lawyer during the signing process, so that the service boundaries can be turned into enforceable clauses.

IV. Practical Suggestions and Legal Basis

At the legal basis level: Article 29 of the Lawyers Law stipulates that lawyers' duties as legal consultants include providing opinions on relevant legal issues as agreed, drafting and reviewing legal documents, representing clients in litigation mediation or arbitration activities, and handling other entrusted matters; Article 61 of the Civil Procedure Law (amended in 2023 and implemented on January 1, 2024) stipulates that parties may appoint one to two litigation agents, and lawyers are within the scope of those who can be appointed. When appearing in court, they shall submit a power of attorney; Article 919 of the Civil Code (implemented on January 1, 2021) establishes the rules of the entrustment contract. The consultancy contract is essentially an entrustment contract, and the scope of services, fees, and terms shall be subject to the agreement between the parties. At the practical advice level: Before signing the contract, confirm the service list item by item according to the actual needs of the enterprise; for the clause "including litigation", specify the case type, court level, number of cases, and fee rate; separately issue a power of attorney for each court appearance and clarify the authorizations; and review the usage situation annually based on the service records to dynamically adjust the scope and budget. For the design of relevant clauses, please consult relevant professionals.Intellectual property protection and corporate legal servicesTeam.

5. Henglu Law Firm's Reminder

Buying consulting services essentially means buying "defined service boundaries". Whether court representation is included or not depends entirely on how the contract is written: verbal promises are only binding if they are included in the contract or supplementary agreements. In the event of major litigation, even if the consultant contract includes court representation, it is necessary to assess whether a lawyer who is skilled in handling cases in this field should be engaged to assist in court representation. Professional compatibility is more important than "using acquaintances". When the consultant agreement is about to expire, bringing the service records of the past year and the expected services for the next year to negotiate the renewal is the best opportunity to secure more favorable rates and scope of services. If you need to evaluate the existing consultant agreement or design a service list, you can do so throughBeijing Henglue Law FirmMake an appointment for an interview.

Q1: The consultant contract doesn't mention the requirement to appear in court. Is it permissible to ask the consultant lawyer to appear in court unexpectedly?

It requires both parties to reach a consensus and re-issue a litigation power of attorney. If the consultancy contract does not stipulate litigation agency, the consultant lawyer does not have an automatic obligation to appear in court, but most law firms can sign a separate agency agreement and handle the case after charging fees based on the number of cases or the proportion of the subject matter. The procedure is not complicated: signing a power of attorney contract, having the enterprise issue an authorization letter, preparing the business license and the legal representative's identity certificate, and submitting them to the court before the trial. To avoid being passive when facing litigation, it is recommended to stipulate the arrangements and fees for litigation agency in the consultancy contract in advance, turning "temporary price negotiation" into "execution according to the contract".

Q2: How much does a regular legal consultant cost per year? Does it include several lawsuits?

The annual fee for legal consultants in the Beijing area varies widely depending on the scope of services, response requirements, and team qualifications. It is typically charged on an annual basis, ranging from tens of thousands of yuan to hundreds of thousands of yuan. Whether litigation is included and the number of cases involved are entirely agreed upon by both parties. The mainstream model is to charge a fixed annual fee for non-litigation matters, with litigation fees billed separately. When companies request quotes, they should include the number of contract reviews, consultation frequency, on-site presence, and litigation rates in the comparison. However, simply comparing total prices without considering the scope of services can easily lead to an underestimation of actual expenses, and there is also a lack of evaluation criteria for renewal agreements.

Q3: What other procedures do consulting lawyers need to go through when appearing in court?

It is necessary to handle the litigation entrustment: sign the entrustment agency contract, and the enterprise shall issue a power of attorney, stating the entrusted matters and the agency authority. Generally, the authority is limited to procedural rights such as appearing in court to defend against the lawsuit and making statements and arguments; for dispositive matters such as admitting, waiving, or modifying the litigation request, conducting settlements, initiating counterclaims or appeals, etc., special authorization is required. It is recommended to issue separate authorizations according to the litigation stages. In addition, prepare the copy of the business license, the identity certificate of the legal representative, and other main materials. After submitting them to the court for filing, the lawyer can participate in the trial according to the authority. The scope of authorization determines what decisions the lawyer can make on behalf of the enterprise.

Q4: Can the company's legal department represent the company in court?

Yes. Employees who have a labor relationship with the company can act as litigation agents in court on behalf of the company upon the company's authorization, not limited to lawyers. Familiarity with the case and internal procedures is an advantage of legal affairs attending court. However, major litigation requires strong professionalism in evidence organization, courtroom confrontation, and appeal strategies. In practice, a common effective combination is: legal affairs are responsible for fact sorting and internal coordination, and external lawyers are responsible for courtroom confrontation and procedural control. Whether legal affairs should attend court alone should be evaluated based on the size and complexity of the case, rather than simply comparing costs to avoid saving a little money and losing the case.

Q5: How to include the litigation agency clauses in the consultant contract?

Three key points: First, the scope, specifying the types of cases included (civil and commercial litigation, arbitration, and enforcement) and the court levels (first instance, second instance, and retrial), with an agreement on the annual case count or a rule of charging per case after exceeding the limit; Second, the price, specifying the fixed price, the fee per case, or the fee based on the amount of the claim, as well as the applicable scope of contingency fees; Third, the coordination, specifying the handover of evidence at the litigation stage and the reporting and confirmation process for major decisions. The more specific the terms are, the less disputes there will be when litigation begins. It is recommended to implement each item in the service list in the contract text, and if necessary, have the lawyer draft it before signing it.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglue Law Firm