Playing God?

Posted: August 7th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

Since I first starting practicing law in the US, I was struck by the fact that clients’ moral compasses often appeared to be guided purely by rules of law rather than a common-sense approach of what is right or wrong.  Take the following example:

Client:  “I want to sue my brother for breach of contract.”

Simon:  “I wouldn’t recommend that; first, this is your family.  Second, your brother has a family that would suffer the consequences of your unresolved fraternal conflicts.  Third, it just doesn’t seem right to me”.

Client.  But the law says I can do it, right? 

Simon.  Yes it does, but that doesn’t mean that it’s an appropriate way to deal with something.  Have you tried calling your brother to discuss this?

Client.  You think that might help?

This conversation is entirely fictitious, but the substantive content is a thread that permeates a significant number of my attorney-client interactions, and underscores the point that there is a difference between what is lawful and what is right.

I’m going out on a limb here, but is this perhaps the logical by-product of our constitutional democracy?  That is to say, the result of the fact that the glue that binds the nation is essentially a collection of laws – necessarily generic, rigid and of universal application – rather than a shared set of normative values derived from collective history with rules in place merely to regulate extreme transgressions of those values.  The United Kingdom for example does not have (nor seems to need) a written constitution and much of the way their society behaves is determined by generally accepted and long-established custom.  Granted, not all of those customs are necessarily palatable and perhaps require rule-based modification, but as a general matter, I believe that recourse to a set of generic rules as a template for a personal code of conduct breeds rigidity, lack of personal responsibility, a reluctance to think, and often fairly extremist views.  I also believe this has profound implications for the way we interact as citizens, and the way our nation interacts with other nation states. 

It may also explain the general antipathy toward the legal profession; perhaps we have become regarded as demi-gods, with tremendous power to influence personal choice?  I don’t know, but for myself, I would prefer clients to act out of an innate sense of decency and what’s plainly right, rather than the alternative.

Key Drafting Tip

Posted: July 24th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

I believe lawyers (and in the future, computers/whatever) should be able to write clear, simple agreements that have a cohesive thread running through them rather than simply reproducing antiquated, legalese-ridden forms that laypersons don’t understand. 

There is a secret to this which has served me well over the years, and which I’m about to impart – it’s all in the “Introduction”!

I can almost guarantee you that wherever a legal document contains an introductory paragraph that succinctly and cogently summarizes the agreement’s subject matter in five or six bullet points, you will hold in your hands a great agreement.  I have written a great many legal documents over the years, but the most effective, readable ones were absolutely those to which I devoted a great deal of effort in first identifying the key issues or transaction, and then summarizing and presenting them in a logical sequence at the beginning of the document.  Sometimes, that process would take me about a third of the entire drafting time, but it always proved invaluable, particularly in the case of unusual or complex transactions.  If you can’t summarize the issues, the reader is unlikely to understand them.

Go ahead; try it.  You won’t be disappointed.

A Day in the Life of the Business Lawyer

Posted: July 16th, 2009 | Author: | Filed under: Reflections on Law Practice | 3 Comments »

Ever wondered what that high-priced lawyer actually does in the office?  Well here’s your chance to find out (of course, I am making the bold assumption that there may be someone out there who has such an interest, and it definitely doesn’t include my kids, whose eyes glaze over after a few seconds of explanation).  There’s not much glamour in it, that’s for sure, despite the high price tag. 

It all starts with sitting in the same chair, in front of the same monitor.  Delicately, my fingers brush the keyboard entering the same password I’ve had since I can remember to access the network.  My fingers delicately caress the keyboard again to open, in precisely this order each day, the following software: Word, Outlook, PC Law, and Safari.  This is the stuff of lawyering! (and of every other conceivable office job).  The first cup of coffee follows, before delving into Outlook (always the first port of call).

I review my tasks and calendar.  Then I retrieve emails, my lifeblood.  Now for the fun part; I start entering time into PC Law, which involves clicking the same scroll-down menu I’ve clicked a gazillion times to find the correct client, and then clicking the stopwatch button while I read the incoming email associated with that client.  Then I respond to the email, again recording time.  I do this pretty much all day, every day, punctuated only by preparing agreements when asked to, or spending time on the telephone, all requiring the mandatory clicking of the stopwatch button.

Excited yet?

Well, maybe the document preparation might pique your curiosity.  How do lawyers prepare their documents?  Well, we start by remembering when we last did a document that was pretty similar.  If one exists, we copy it and use it as a template to work from.  Since most of the work has already been done, the client usually benefits since we generally charge by time and the work won’t take long (I’ve discussed this ad nauseam on this blog).  If we can’t find a form, we either start from scratch (rarely), or try to find a close approximation in our own data bank that we can customize (typical).  In these cases, the prep time goes up and clients tend to pay too much.  Big firms will delegate this task to young lawyers or paralegals, and simply check the end-product.  In smaller firms, the partners may do the job themselves – I do, because trying to create simple, practical documents has always been something I’ve enjoyed, and I think clients deserve this.

Oops, time to log out (of course, using the same delicate keyboard caress, with the same exit code).  Until tomorrow.

Do Lawyers Have Any Value Anymore?

Posted: May 14th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

There are a number of erudite commentators who are predicting the demise of the legal profession in light of the commoditization and outsourcing trends. It’s all part of eliminating inefficiencies in the supply chain. So do lawyers provide anything of value, or has their shelf-life just expired? Well, I think lawyers still have a part to play, but of course I’m biased; it’s what I do.

But here are a few examples of why I think we may still have value:

A client consulted me because he paid an online entity formation service to set up an LLC. Like most business folks, he assumed that when he got a nice certificate mailed to him, the job was done. He operated as an LLC for about 18 months, until someone pointed out that all he had was a certificate. So 18 months later, he paid me to complete the legal process of transferring assets to the LLC, becoming a member, licensing the business and so forth. None of this is difficult, stuff, but it is important to the client and has consequences if not done correctly. The result? The client ended up paying double what he should have, which he could have saved on the front-end.

Or again, there was the client who bought some assets only to find that they were subject to multiple tax liens and that he was being held responsible for them as a successor owner (and we’re talking significant money here). An ounce of prevention….
And then there was the one about the client who purchased real estate with a large down-payment. Unfortunately, the property was subject to multiple liens and he couldn’t get his money back.

Or the client who borrowed money from investors to fund a real estate LLC, only to discover that he was violating securities rules by not giving the investors adequate information.

The list goes on.

And in none of these cases are the clients being dumb. This is the stuff of everyday life, not big corporations, and most often, your average consumer or small business simply isn’t aware of what’s out there, and because each case is unique, it’s tough to Google a solution even if you did know which question to ask.

House Calls Anyone?

Posted: May 13th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

In the process of getting feedback from clients on their wants and needs, I found there was one idea that seemed to have tremendous appeal; house-calls. Remember the days when you called your doctor and they popped right over? Well this would be similar; I would visit clients at their business premises and for a fixed fee, I would perform a diagnostic check on the overall legal health of their business. Everyone I’ve polled so far loves the idea. It allows clients the opportunity to ask me all the questions they never get around to asking; it allows me to learn more about clients and their businesses and to interact more with clients on semi-formal basis (which is the part of lawyering that I love most), and given the fixed fee, removes the time element from the equation.

Whither Business Lawyers?

Posted: April 27th, 2009 | Author: | Filed under: Reflections on Law Practice | No Comments »

For a long time I’ve felt that the way I have been practicing business law has become outdated, but I’ve always been too busy to do anything about it or too obtuse to understand the rapidly-evolving dynamics underlying my discomfort. This economic downturn has finally forced me to reevaluate the business law services I provide, and to question how relevant they still are. Twenty-something years ago, I was trained to prepare lengthy agreements to cover every eventuality, and billed by the hour. Now my clients are often half my age, have a far keener understanding of the social paradigms that drive modern businesses and have little inclination to engage a forty-something attorney to charge them an arm and a leg for advice they can research for free on Google or a document they can buy online for next to nothing. My challenge is to figure out a way to stay relevant and offer value. I have some ideas about how I believe the future might look, but at the moment, I’m trying to stay focused on listening to what clients and consumers are saying they want. And I must say, I’m pretty excited about the results so far.