Some time ago there was a fellow who I will call Jack. Jack had invented a product and had found a large company to be his partner and finance the start-up of a business to manufacture the product. The business did not do well. The partnership did worse. The day came when a deal had to be struck for the partnership to be dissolved.
Back quite a few years ago, I was out for lunch with one of my associates who for today will be called “Samantha”. We were having a quick meal at one of those sandwich places where you line up at the counter and order your meal and then take it to a table, gobble it down for 15 minutes and get back to work as quickly as possible so that you do not waste too many billable hours.
I attended my first closing of a commercial transaction when I was an articling student. It was a rather large share transaction. The closing started around 2 pm and I imagine that the lawyers thought that they would be done by late afternoon.
It was not to be.
Legend has it that years ago in Toronto there was a law firm which embarked on what was then a somewhat unusual exercise. At the urging of their marketing consultant, this firm surveyed their clients to ask them what they thought of how the law firm delivered its services.
When negotiating an agreement, clients are often happy to hear that the other side’s lawyer is going to do the drafting. They assume that their lawyer will spend less time reviewing an agreement than he or she would have spent drafting the agreement in the first place, and that allowing the other side’s lawyer to draft the agreement will be cheaper for them. Lawyers who are overwhelmed with work, or who are inexperienced, or who are lazy, or who are just not that bright, will readily agree with this approach.
“The sharp employ the sharp; verily, a man may be known by his attorney.”
Douglas William Jerrold
Criminal lawyers are often required to represent those among us who are morally and ethically challenged. Their role as guardians of the rights of all of us is crucial to our democracy and their choice of clients does not usually reflect negatively on their character.
It is a poorly kept secret in the legal profession that some lawyers are much better than other lawyers. Marketing would have you believe that the lawyers at large firms are better than lawyers at smaller firms, which is sometimes true and sometimes not true, and belies the fact that incompetence can hide in a crowd. Pity the poor clients who have to try to figure out how to choose the best lawyer to represent them based on who has the biggest marketing budget and the best marketing consultant.
When I started practicing business law immediately after being called to the Bar, I had just been rejected for hire-back with the firm where I had done my articles. I was told that the reason that I was not hired back was that I had not shown sufficient self-confidence. Compounding my insecurity was the fact that I was younger than most first year lawyers, having entered law school after just one year of university. Worse still, I had no prior business experience.
In my first four years of practicing law, I learned how to be a lawyer through the “sink or swim” approach. I did this by working 12 hours a day and 6 ½ days a week, without supervision, mentoring or training. I was also worrying 24 days a day, 7 days a week, and waking up screaming at night. I do not recommend this approach to learning the practice of law.
In my first year of practice, a client asked me to advise him concerning his plan to build a sign for his restaurant. The sign was to sit at sidewalk level and would be 6 feet high and 20 feet long with flashing neon lights. It did not take long for me to determine that the sign would contravene the city’s by-laws and to tell him not to do it.
The client was furious with me. He angrily explained to me that it was not my job to give him business advice. In his mind, my role as the lawyer was simply to tell him what the law said and what the penalties were for breaking the law. It was his job to make the determination whether it was a good business decision to break the law.
That was my introduction to business ethics and how the practice of law fits in.