In my first article of this series, we saw how a salesman of a company views the role of an in-house lawyer. Many subtle things were highlighted in the salesman’s narrative but one blatant thing was, simply, the difference between the attitude of two lawyers who handled the same transaction. Therefore, I made it easy to conclude that one of the two lawyers in the narrative was smart because he salvaged the salesman’s multi-million dollar sales deal. The moral of the story was therefore that the companies should carefully and meticulously hire only business friendly lawyers. Wish it were that simple when we looked at the legal fraternity and lawyer pedigree!
Lawyers face an inherent challenge to adopt a business friendly attitude. The very training and education they get prove to be an antithesis. Lawyers are conditioned with legal theories, maxims and fiction. They are trained to make hypothesis on risk assessment. They can possibly foresee a risk in every word written in a document and every action that comes under their scrutiny. The enormity of law education in vast disciplines of law, study and application of legal precedents and the need to remain updated and compliant with dynamic regulations make lawyers risk averse and skeptical. The rarefied legal circles lawyers more often join (or are required to join) adds to this demeanor. This kind of attitude is typically expected out of litigation lawyers but not from in-house counsels anymore who, in today’s world, are seen as a key link to facilitate the business of companies. In all streams of modern business, a lawyer acts as a gatekeeper to ensure the rights are fully exploited and obligations are properly disseminated to the stakeholders, thereby ensuring proper compliance thereof.
A corporate lawyer is expected to ensure company’s best interests, both legal and commercial, in every single transaction he handles. This requires a lawyer to work collaboratively with all stakeholders, especially the business teams. At a time when the companies are weaving KRAs of legal department into company targets and increasingly setting tangible goals to achieve, it is incumbent on the legal heads to ensure their team of lawyers is in the right place, equipped with key skill sets and holds the right attitude towards collaborating decisively with the business teams.
Duality of role
We must appreciate that all lawyers are inherently business unfriendly. Their job is not to design the product but to protect the product. It is not for lawyers to sell but they must protect the receivables. Lawyers are not responsible for R&D but it is the protection of intellectual property that behooves them. A business cannot afford to be in violation of laws and regulations and it is upon lawyers to ensure business runs compliantly. In-house lawyers are the back stage heroes. So when lawyers are not fronting the business but are hired to protect the business, it is a paradox in itself to expect them to be business friendly. The job of an in-house counsel has reached heights of complexities. Modern age companies are appraising lawyers on “proactive facilitation” of business as much as protection from existing and potential market, business, legal, regulatory and contractual risks. This duality of role is complex to say the least and there are only a few who master it perfectly. Those who are adept at being truly business lawyers, their talent is like gold dust.
Line of demarcation
There is a thin line of demarcation between a business friendly and a business unfriendly lawyer. Unarguably the primary job of a lawyer is ‘lawyering’ and this remains sacrosanct. We are talking about a corporate lawyer donning a business hat to synthesize the transactions both legally and commercially. While I may have written this requirement simply in a few sentences and it may read to suggest that it can be done easily, but it is indeed very hard to achieve. I have seen lawyers struggling to adapt for years, especially who begin their careers in law firms and courts and subsequently move in-house. Make no mistake, that to cross the line generates a conflict in the minds of lawyers, it challenges their skill set which is deeply rooted, inculcated and developed with the sole objective to making them skeptical and risk averse. However, in today’s changing time in which corporate outlook and business dynamics are changing rapidly, lawyers who desire to prosper as corporate lawyers must cross over. A lot of them perish at mastering this art, many remain stagnant. Such lawyers still have a place but perhaps not in the corporate world in times to come. Demanding companies are making the path to success of business unfriendly lawyers long and tedious. The world is changing and so, with it, the fundamentals of doing business. Lawyers must adapt and equip themselves with the requisite skill set that will help them to sail through effectively.
I must caution of the risk attached to push oneself to become a business friendly lawyer. While we don’t want a corporate lawyer whose agility to understand business is crippled, thwarting him to become a business lawyer, but at the same time, we don’t either want a lawyer who, for convenience or lack of legal skill, is way across the line onto the business side that the legal side to him becomes a “blur”.
Certain lawyers if and when they manage to cross over, it is at times found that their decisions start to get influenced solely by the business wishes; a tendency certain lawyers develop for convenience perhaps to find an easy way out to close complex contracts and tiresome negotiations. It is a foregone conclusion that the decisions of a corporate lawyer must be taken using legal acumen. This is sacrosanct to legal profession. The context of business friendliness in lawyering should not be mistaken – it only requires lawyers to delicately keep the “big picture” in mind and preserve it in each transaction. A true business lawyer is one who even aligns and steers legally nuanced transactions towards the big picture and yet does not compromise on integrity of application of legal acumen. Big picture involves having a thorough understanding of intricate challenges, needs, objectives and circumstances in which the business is transacted. It also involves appreciation of the “power equation” of the parties involved in the transaction.
While some of the lawyers are conspicuously on the wrong side of this line and, sooner or later, they get spotted, quite a few are border line cases who keep hovering over both sides. In the context of line of demarcation illustrated philosophically by me, ‘hovering over’ signifies a state of metamorphosis of a corporate lawyer. It indicates the stage when a corporate lawyer is trying to approach the transactions, using one or more of the qualities to be typically found in a business friendly lawyer. He may be failing but he is able to taste success occasionally. This is where the role of a mentor becomes crucial. A mentor can help such a corporate lawyer to adapt and re-condition in order to cross over, holds his hand to help him to remain on to the business side of the line and at the same time ensures the legal side does not become a blur to him.
Who is a business friendly lawyer?
A business friendly lawyer is the result of conscious effort on the part of a lawyer to become one. As we steadfastly approach near future, there will be a tectonic shift in the culture of companies to hire, retain and reward corporate lawyers. As a matter of fact, this trend is already burgeoning. Companies are spending enormous resources on its work force (including lawyers) to help them to adopt business friendly attitude, to be able to see the big picture and innovate. Trainings are helpful but the catalyst is really the conscious, continuous effort and perseverance. There are a number of things that trainings cannot impart. In my personal experience, corporate trainings are rarely helpful in changing the attitudinal fabric of a lawyer. To become a business friendly lawyer, apart from other things, inculcation of the right attitude is seminal.
What are the ‘qualities’ and ‘attributes’ of this so called right attitude of a business friendly lawyer is debatable, but if a bunch of successful General Counsels were to pen down these qualities and attributes, I am certain there would be a lot of commonality.
I was once asked by a lawyer friend working in a law firm that who decided in a company if one was a business friendly lawyer. I said perception of a lawyer in the company. It’s true. Perception of a lawyer even spreads outside the organization. Perception needs to be critically managed by in-house lawyers. I will deal with “perception” in one of my subsequent articles in the series.
My next article will be on attitude, those subtle qualities and attributes of a lawyer that make him in transitioning to a business friendly lawyer.
Copyright 2018 reserved with the Author, Ritesh Khosla