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Subject: |
What Lawyers Will (And Won't) Do To Help Your Business |
| Date: |
2009-06-08
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What Lawyers Will (And
Won't) Do To Help Your Business
By Cliff Ennico
www.creators.com
“I hired an attorney a couple of weeks ago to help me prepare and
negotiate a couple of contracts for my business. He's done a good
job so far, and his fees are fairly reasonable. But whenever I
ask him for help with the business discussions and negotiations, he
tells me that that's not his job. He says I am ultimately
responsible for negotiating the deal, and that he cannot guarantee that
the deal will work or even that I will be satisfied with his
work! It seems to me that he's being a little too conservative
and that he could be doing more for me. Am I right, or is this
just the way lawyers work?”
Being a lawyer myself, I have to give you that most lawyerly of answers
. . . “it depends.”
Generally, unless a lawyer has had a lot of experience with a
particular business, trade or industry, he will not get involved in
negotiating your business transactions or “deals”. While your
lawyer can certainly give you a list of items that are normally
negotiated in similar transactions, and will almost certainly tell you
if the position you want to take (or the other side is taking) does not
make economic sense or creates an unreasonable risk from a legal or tax
perspective, he will not tell you what you should do.
Your lawyer's job in negotiating a business transaction is as follows:
- to draft the necessary
contracts and other legal documents reflecting the business deal you
have struck with the other side, or review the contract the other
side's lawyer has prepared to make sure it's fair and makes economic
sense;
- to negotiate the contract
language with the other side's attorney, to make sure the language
accurately reflects the business deal the two of you have struck; and
- if the language is
one-sided, unfair or subject to multiple interpretations which the
other side refuses to "correct", to make sure you understand the legal,
tax and other consequences of agreeing to accept that language in the
contract.
If your lawyer is doing all of the
above, then you really don't have grounds to complain. No lawyer
(or indeed, any service professional) will guarantee that you will be
satisfied with the outcome of the deal. As to not guaranteeing
you will be satisfied with his work, no lawyer can predict what a judge
or jury will do when interpreting any contract. Even a perfectly
drafted contract may not be enforced if a judge feels that doing so
isn't consistent with "public policy" or would set a bad legal
precedent.
Also, if the information you gave your lawyer wasn't 100% accurate or
complete, then the contract he drafts based on that information won't
be 100% accurate or complete either. As our friends in the
computer business say, "garbage in, garbage out."
There are a couple of exceptions. Entertainment lawyers, for
example, generally do get quite heavily involved in negotiating their
clients' business dealings, sometimes even managing their clients'
financial affairs. This is because many clients in the
entertainment industry are "artists" who have little if no experience
in business, and can easily be cheated or "ripped off" by unscrupulous
people who do.
"I need a lawyer to help me negotiate a contract. Several people
have referred me to this one lawyer in town who supposedly really knows
his stuff, but the guy won't return my phone calls. The other
side is threatening to walk from the deal if I don't sign off on the
contract in the next couple of days. What can I do to get this
lawyer's attention so I can meet the other side's deadline?"
The best thing you can do is forget about this lawyer and get some
referrals to other lawyers in your community. Since you haven't
established a client relationship with this lawyer, he is not legally
or ethically obligated to return your telephone calls.
While the better lawyers among us always try to return "new business"
calls as promptly as we can, telephone calls take time. Taking
the time to return these calls, find out the nature of the client's
problem, and come up with a suitable referral to another lawyer can
take valuable time out of a busy day – time for which we will not be
paid. Generally, a lawyer has a responsibility to communicate
with his existing clients before returning "new business" calls like
yours.
Also, keep in mind that the lawyer may have a relationship with the
other side, and cannot return your call for fear of getting involved in
a "conflict of interest" situation. Unless you live in the
proverbial small town that has only two lawyers (heck, even tiny towns
have at least five these days), with a little research and networking
you should be able to find an attorney who will be happy to return your
call and give you the advice and assistance you need.
Cliff Ennico (cennico@legalcareer.com)
is a syndicated columnist, author and former host of the PBS television
series 'Money Hunt'. This column is no substitute for legal, tax or
financial advice, which can be furnished only by a qualified
professional licensed in your state. To find out more about Cliff
Ennico and other Creators Syndicate writers and cartoonists, visit our
Web page at www.creators.com.
COPYRIGHT 2009 CLIFFORD R. ENNICO. DISTRIBUTED BY CREATORS SYNDICATE,
INC. Permission granted for use on DrLaura.com.
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