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Bar News - March 17, 2006 Client Relations - Thinking Like a (Business) Lawyer
originally was published in the Nashville Bar Journal. By Kelly L. Frey Law schools traditionally teach law students how to think like lawyers. However, thinking like a lawyer, without more, is insufficient to develop a base of business clients and keep it. A business lawyer needs familiarity with evolving business regulations, facility with skill-sets that parallel those required of the business client, and a commitment to character in order to become a “trusted counselor” to his/her clients. Substantive Knowledge Tennessee law schools are taking the lead in establishing a baseline of substantive knowledge for the business lawyer through business certification programs. But business lawyers are faced with an aggressive regulatory environment that continues to provide, on a daily basis, new substantive requirements for business operations. Failure to keep abreast of these new regulations creates not only a competitive disadvantage for the lawyer in acquiring and servicing business clients, but also the very real threat of a malpractice claim (or professional censure). Up-to-date knowledge of the laws affecting business is only part of being a good business lawyer, though. A working knowledge of how to deal with conflict resolution is equally important. Conflicts are inevitable in business. Whether the business attorney is negotiating contracts or dealing with personnel issues, turning conflict into consensus is critical to achieving success for the business client. Unfortunately, as the practice of law has become more specialized and new associates are integrated into defined practice groups, conflict resolution skills for business lawyers seem to reach their limit when a complaint is filed. Few business lawyers have to deal with the civil litigation process that results when reasonable men/women cannot agree. By learning basic litigation skills, the business lawyer becomes familiar with what is required to withstand a motion to dismiss and with the expense and administrative burden discovery creates for an on-going business. Such first-hand experience translates into better drafting skills and more attention during negotiation to contingencies with which the typical business client is unconcerned (but which keep more experienced business attorneys awake at night). The important point for a business lawyer is that he/she learn more than just the law of business associations and commercial transactions. Knowledge of conflict resolution and the immediate financial/regulatory environment in which the modern company operates is a prerequisite for the business lawyer. Skill-Sets Armed with knowledge, there are rudimentary skill-sets that are required to be successful as a business lawyer. An ability to understand balance sheets and income statements is essential to understanding the financial facts about a company without having to rely upon the interpretation of others (whose judgment may be clouded by self-interest). Knowing the jargon of the private placement memorandum or the public offering circular allows the business lawyer to concentrate upon the critical success factors of a company (rather than the mostly pirated disclaimers that typically account for the largest percentage of words in such documents). Whether learned in college or graduate school, at home or in technical classes, finance is the language of business and an inability to speak the language is a detriment to being taken seriously as a business lawyer. As important as speaking the language of business is the ability to use the current methods by which business information is expressed and exchanged. Lawyers were late in adopting personal computers and the software applications that drive most business communication. (For example, some law firms still insist upon using Word Perfect over Word as their principal word processing application –a debate similar to the “beta vs. VHS” video tape format during the first generation of video recorders. The lesson learned: It doesn’t make any difference which one is “better”, the one with the most users wins). Some firms still consider the cost of software applications such as Excel or PowerPoint or Acrobat (the writer version, not just the free reader) as “luxury” items (while continuing to invest in portable audio recording equipment for dictation). Business lawyers should look to their clients’ operations for guidance in acquiring the right tools and learning how to use them. Are you dependent upon an assistant to convert client documents from one format to another? Do faxes come to your computer screen or a shared device down the hall from your office? Do you show up for board meetings or conferences expecting your client to provide you with printed copies of spreadsheets or color graphics? If you were the client, would you want an attorney who has yet to recognize the efficiencies of the technology that your company has already adopted? And even if you continued to use such an attorney, would you begin to question the rates that you are being charged? The era of the business lawyer who is less efficient with technology than his/her client is rapidly coming to a close. The business lawyer needs to have and use the same skill-sets as his/her client. Character A firm handshake. A genuine smile. A phone call returned in a timely manner. Simple acts that forge lasting relationships with business clients. All are important in developing the type of character that transitions you from being just a business lawyer into the role of “trusted counselor” to your client. The law emerged, at least in part, as an alternative to trial by combat. Unfortunately, many business attorneys have yet to make the transition. They fail to see that business clients increasingly expect not only the civility associated with good manners, but also the character that is associated with actual courtesy. A character that is respectful to the client’s customers—whose revenue is essential to the client’s business—despite difficult negotiations. A character that extends the same level of courtesy to support staff as to other attorneys and officers of the company. A character that communicates early and often, especially during periods of stress. A character that earns respect from the client and all of those related to the client. Character in the old-fashioned sense of the word. A recent marketing article indicated that one of the top ten ways to maintain a client relationship is “to act like you really care about the client and its business.” In my opinion, “acting” is one of the worst ways to maintain a client relationship. What a client wants is someone who really does care about its business and its success. Not to the point where such personal investment would temper an attorney’s independent professional opinion - but sufficient personal involvement to demonstrate to the client that the business lawyer takes the same level of care and pays the same level of attention to corporate matters as the president of the company would. Our professional ethics term this “zealous representation” and it is an expectation at the core of what we have to offer as a profession. And perhaps the hardest character trait for any attorney—the ability to actively listen. People like to talk. And in the business world, people expect to be heard (even when they are having a hard time communicating). Myers-Briggs is a psychological profiling tool that categorizes individuals, to some extent, by the way in which they make decisions and communicate those decisions. For some, being able to articulate a decision is an active part in making that decision. For others, being able to listen to all sides of an argument is a prerequisite to decision-making. Sitting through endless hours of discussions with business clients, when there is really only one clear alternative, can be frustrating for the attorney and costly for the client—unless you understand that the process of communication is, in most instances, as valuable to the business client as the result of that communication. Conclusion As lawyers we often live by the rule “all we have to sell is our time”—sometimes obsessively, as we see our lives compartmentalized into six-minute increments. While true enough in the realm of law firm economics, the rule falls far short of the expectation of business clients and the ethical obligations business lawyers owe to those clients. Business lawyers should give more than just their time to their clients - they need to provide real value. And, increasingly, the measure of value being used by business clients begins with knowledge, but is supplemented by an expectation of equivalent skill-sets and includes a commitment to character. Kelly Frey is Of Counsel with the Nashville office of Baker Donelson Bearman Caldwell & Berkowitz, PC. He may be reached at kfrey@bakerdonelson.com. This article, originally published in the September 2005 edition of the Nashville Bar Journal, Vo. 5, No. 9, is reprinted with permission from the author and the Nashville Bar Association. |
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