That’s the provocative question Professor Stephen Bainbridge poses in his TCS Daily Column. We say: Don’t give the clients any ideas.
(Of course, if the dying lawyer writhes on the floor in agony for six minutes before expiring, expect to get billed for that tenth of an hour.)
Professor Bainbridge asks this rhetorical question: “[W]hy does anybody hire transactional lawyers?” After all, frequently they “giv[e] advice that could be given by other professionals.” Plus, they’re annoying. And expensive.
He outlines two competing hypotheses for explaining the work of corporate lawyers: the “Pie Division Role” and the “Pie Expansion Role.” Under the former, which takes a zero-sum view of the world, lawyers try to maximize the gains of their own client. Under the latter, which does not take a zero-sum view, “the lawyer makes everybody better off by increasing the size of the pie.”
Bainbridge argues that training of transactional lawyers should focus more on the “Pie Expansion” model. To demonstrate the limitations of the “Pie Division” role, he gives this example:
You and a friend go out to eat. You decide to share a pizza, so you need to agree on its division. Would you hire somebody to negotiate a division of the pizza? Especially if they were going to take one of your slices as their fee?
But isn’t this exactly what corporate lawyers do — and how they earn their seven-figure paydays?
We offer our own, somewhat cynical take on Professor Bainbridge’s pizza example, after the jump.
This is how we envision the pizza consumption process, with transactional lawyers involved:
You and a friend go out to eat, and you decide to share a pizza. Each of you hires a corporate lawyer to negotiate its division.
The piping hot pizza is brought out to your table. Before you can eat it, the corporate lawyers tell you and your friend that they must do their “due diligence.”
You sit at the table, watching the pizza cool, while the lawyers muck around in the kitchen. You hear the clanging of pots and pans.
After an eternity, the lawyers emerge. Your lawyer informs you that, based upon his comprehensive review, he has concluded that this pizza is made of dough, tomato sauce, and cheese.
Your lawyer then warns you about the pitfalls of pizza consumption. You might get heartburn or indigestion. If you’re lactose-intolerant, the cheese might upset your stomach. The pizza may contain trans fats.
Your lawyer adds that, if you eat the pizza too soon after it emerges from the oven, you could burn your tongue. Of course, there’s no danger of that now, since the pizza grew cold a long time ago.
Then your lawyer turns to the lawyer for your friend. It’s time to negotiate. They step outside the pizza parlor and argue, in animated fashion, for half an hour.
The oil on the surface of the pizza is starting to congeal. Your stomach is grumbling audibly.
Finally, the lawyers return. They have concluded that you and your friend should divide the eight-slice pie evenly, fifty-fifty. After each lawyer takes out his one-slice fee, that leaves you and your friend with three cold, soggy slices apiece.
At this point, you have no desire to eat the pizza, which is completely disgusting. So you go up to the counter and order a garden salad. It’s so much healthier than pizza.
Your transactional lawyer just increased your lifespan. Aren’t corporate lawyers great?
First, Kill All the Transactional Lawyers? [TCSDaily via ProfessorBainbridge]