Standing Your Ground, Even To Clients
As attorneys, we owe it to our clients and our profession to always give our full, unembellished opinion, even if it’s not what someone wants to hear and even if there may be consequences.
If you’re like me, people try to talk you into things all the time. The lawyer representing an investor or a company will claim a certain provision does/does not represent current market practice, or that the real meaning is different from the plain meaning so I shouldn’t get hung up on it. It’s pretty easy to stand up to a lawyer sitting across the table — or, more often, the other end of the phone — since after all, that’s what the client has hired us to do. (And let’s face it: if it were truly a problem, we’d probably be in a different profession.)
But what about standing up to our own clients? Clients typically have a lot more on their plate than just the legal side dish. The company may have spent a significant amount of resources on a certain business idea before they engaged their counsel. Even if the lawyer got the call relatively early — at least from the 10,000 foot view — some resources will have been spent before the call.
“We’re going to do x, y, and z. That’s okay, right?”
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When you’re flying solo, you have to have confidence in your legal determinations and your abilities. In SmallLaw, you’re always dealing with the top people, and people who are the driving force behind successful organizations are generally not meek individuals. They will challenge anyone telling them something that’s going to disrupt their business plan. Are you sure? That can’t be right.
But if your gut says “Bad Idea,” you can’t let yourself get talked into something before you’ve had a chance to research it and gain comfort that whatever the client wants to do is okay. For me, if I get pressured for an immediate answer, I’ll tell my client the immediate answer is “no,” but if I look into it a bit, I might be able to revise it to a “maybe” or even a “yes.”
“Look at this webpage I found after two hours of searching, in which a law student makes a passing reference to a ‘de minimis’ securities exemption. See, I told you there was one.”
There were definitely times when I was coming up through the law firm ranks when I hadn’t realized some section of the red book, or the indenture or whatever, negated the section I was looking at, causing me to have come up with a bad answer.
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But then there were also times when I had the right answer but it didn’t matter. When I was maybe two months into my Biglaw career, I reviewed an offering document to make sure its description of one of the key agreements was accurate. I marked up the doc and shot it out to the 20 or so people on the distribution list. The partner at the firm representing the issuer basically lost his doo-doo and sent an angry reply-all saying this markup can’t be right, this says the agreement says the company has to do [this], [that], and [the other], and that’s not the case. There I was, not just a junior associate — I was a fifth- or sixth-weeker. I told my partner and he said this isn’t a battle we should pick. So I didn’t respond. But the senior counsel for the issuer did. He said, “Well, okay, but I agree with Gary.”
“My current general counsel says I can’t do that, so I’m looking for a lawyer who is more flexible.”
When you’ve managed to maneuver yourself into a position where you’re making a pitch to a potential client — no small feat — the desire to reel in the client can be overpowering. Oh gosh, I’m so close! And all I have to do is say yes, you can do that. Yes, the law says that’s okay. Sure, I don’t see a problem with that.
Though of course you have to stick to your guns, I’ve found that at times the problem is simply one of communication. Maybe the current counsel curtly tells the client “no,” and gets upset when questioned. The client may just need someone to talk her through situations instead of delivering a snappy response.
“Whether we want to talk about it in the 10-Q or not isn’t a legal question.”
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Sometimes not only do we have to stand our ground: sometimes we have to speak up. “Hey, everybody stop! What are you doing?! Who told you this is okay?”
Politicians always brag about not being afraid to speak truth to power (though curiously this only applies when the “power” happens to belong to the opposing political party). Well, let me tell you, when you’re speaking truth to someone who doesn’t want to hear what you’re saying and can fire you on the spot, it can be nerve-racking. Like having to admit to your choking friend you were just kidding about knowing the Heimlich. Sometimes as I press “send,” I’ll think, well, there goes that client. Though not every story has a happy ending, generally after testy exchanges the client may no longer think of me as a friend, at least for a while, but (hopefully) they respect me.
“My friend runs a startup, and he told me it’s perfectly fine to have three concurrent private offerings, all using different exemptions. How long have you been a lawyer?” [My response: longer than your friend!]
As attorneys, we owe it to our clients and our profession to always give our full, unembellished opinion, even if it’s not what someone wants to hear and even if there may be consequences. After all, it doesn’t do anyone any good for you to let yourself get talked into malpractice.
Note: I should mention that the ABA SoloSez listserv is a wonderful resource for SmallLaw attorneys. There are people on the listserv with expertise in every issue imaginable, all willing to take the time to offer a reasoned, thoughtful response that can, if nothing else, point you in the right direction. So if you’re thinking about unchaining yourself, know that even in SmallLaw there are sounding boards available that you can use before you have to make that call or send that email that’s guaranteed to get a response that won’t be pretty.
Gary J. Ross opened his own practice, Jackson Ross PLLC, in 2013 after several years in Biglaw and the federal government. Gary handles corporate and compliance matters for investment funds, small businesses, and non-profits, occasionally dabbling in litigation. You can reach Gary by email at Gary.Ross@JacksonRossLaw.com.