Bar News - April 19, 2013
Morning Mail: New Lawyer Column Last Month Sparked Top 10 List of Pitfalls for Business Lawyers
I thought the Top 10 List in the New Lawyer Column by Megan Hertler in last monthís Bar News was a great collection of advice for any attorney to follow (whether a rookie lawyer or not). Reading the column, however, it struck me that many of the items were relevant for a litigator but didnít really come up in the day-to-day routine of a business lawyer. That set me wondering what I would include in a Top 10 List for a newly sworn-in business lawyer, and I came up with the following:
1. Donít ever verbally accept wire instructions for a funds transfer. Insist wiring instructions be communicated in writing. It only takes two digits to get transposed and the funds will end up in the wrong account (just ask Fawn Hall), your closing will be totally derailed and youíll never be able to prove who made the error in the communication.
2. Be wary of over-reliance on form documents. If an agreement youíre using as a template has terms you donít understand, ask what they mean. Donít move forward with irrelevant deal points just because you assumed they must be important.
3. Donít talk to other parties who are represented by counsel. Early on in a deal, you may be in direct communication with one of the adverse parties, before they lawyer-up. Although you have fallen into that pattern of communication, you will need to change it once he or she retains counsel.
4. Donít be hypersensitive over which side of the transaction prepares the first draft of the agreements. Rest assured that no one is going to sign anything until everyone has had a chance to get comfortable with the documents, regardless of the starting point.
5. Similarly, donít be hypersensitive about controlling the process of making edits. If you receive a red-line revised draft from opposing counsel, go with it.
6. Donít expect the opposing counsel to read your mind. If you want a term to be revised, respond with the actual text youíd like to see. Donít respond merely by stating vague conceptual objections.
7. If you are revising a draft document prepared by opposing counsel, red-line your changes. Send the other side a revised version in which your changes are clearly marked.
8. At a closing, always triple check to make sure all the exhibits and schedules are attached, all signatures obtained, and all notary acknowledgements made. There are few things worse than having to call a client on her cell phone and ask her to return to your office because you missed a signature.
9. Itís your clientís deal, not your deal. Check your ego at the door before you sit down at the negotiating table. If your client wants to concede an issue, that is his or her prerogative.
10. Let your client call the shots with regard to how much risk is tolerable. Iíll never forget the time when, as a junior attorney, a client told me that "you lawyers always try to get us to wear spacesuits when sometimes all we need is a condom."
I am sure other business lawyers could add to this list, perhaps with pointers more important. Feel free to delete any tips and add your own (just please red-line the deletion).