Outside General Counsel
No matter what my personal role in a business transaction-as business owner, supplier, customer, facilitator, or as an attorney for one of the parties-everyone has the same reaction to the lawyer's participation: "Oh, no....now nothing is going to get done....here come the lawyers!"Before I became an attorney, I felt the same way. The presence of them seemed to automatically up the tension and the probability that whatever we wanted to get accomplished just wasn't going to happen (or if it was, with a tremendous amount of difficulty). Why is this? Why does everyone dread a lawyer's participation in a business transaction, and what can be done, if anything, to change that?I believe the first part of the question may be answered, on one hand, by the simple fact that most people consider them to be a necessary evil. You don't call one because you want to, you call one because you need to. The feeling that you need to do it could stem from a variety of reasons-fear that the other side will take advantage of you, a feeling that you don't understand the situation as well as you would like, apprehension of what will happen if you don't have someone to stand by your side, that the other side, at the very least, will perceive you to be vulnerable without their presence, or just simply because they have a level of understanding and expertise about the issue which you don't possess.On the other hand, I also believe that people dread the lawyer's participation due to a misperception about the lawyer's role. Unfortunately, lawyers themselves also hold this misperception much of the time, which only aggravates the situation.So what is this misperception?In a business transaction, like most other attorney-client relationships, their job should be to advise the client-you. Generally, the purpose of hiring one is to minimize the risks and maximize the advantages to you, the client, as much as possible. What often happens, though, is that the lawyer and/or the client lose sight of the business transaction at hand. No one would argue that there are risks inherent in every business deal. The risks for you are different from the risks to the other side. The question is, how much risk are you willing to assume in order to accomplish your goal of completing this business transaction?When the focus shifts strictly to minimizing the risks, the ultimate result is often that that the other party no longer finds the business deal attractive, or feels that they just cannot work with you. When this happens, many businesspersons have lost sight of the goal because they become focused on allocating liability to the other side. When this happens, it often causes a breakdown in relationships between the parties-and most of the time, to the parties' detriment, not to their advantage.In the end, it is important to remember at all times that you are, ultimately, the decision maker, and your lawyer is the one who gives you advice and options, which you may choose to take, or not (because this is your business and you have to be the one ultimately responsible for making the business decisions). One of the first decisions you need to make is about what type of lawyer you want to work with. Everyone wants someone who will be looking out for their interests, but what does that mean? Does it really mean you hire someone who helps alienate your valuable business associates because they are so busy "protecting your interests" that they lose sight of what you are trying to accomplish? Or does it mean that you find someone that understands the needs of the small business person, including the real possibility that you may have to accept a certain level of risk in order to get things done? Although there are many attorneys who practice business law, most attorneys are not businesspersons in the traditional sense. There is a wide difference between understanding negotiation and litigation. It is important, therefore, that whoever you hire, they can fully explain to you, in plain language, what the risks are and the potential outcome(s) of your decisions from a legal standpoint-and that you take the advice and make decisions accordingly.
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