BIRMINGHAM BUSINESS LAW BLOG
A blog published by Red Mountain Law Group providing
legal updates and tips to businesses and individuals.
Posted on December 31, 2012
My main goal in writing this series was to bridge the gap between the expectations of the business owner and the abilities of the lawyer. A gulf exists between the two, and hopefully these articles help to fill the gap. I have tried to provide a little education, which I believe is necessary to have a better understanding of the process.
I have been harsh, at times, on lawyers, and I think lawyers deserve some of the blame for the system. In an effort to market our services, we inevitably pump up our own abilities beyond what we can actually perform and downplay the ability of other lawyers1. We create complexities that only other lawyers can understand. We attempt to create barriers to our knowledge, our forms, our courts, etc. that prevent commerce. As business people build roads around our services, we need to realize that lawyers are at fault for creating a system that needlessly slows down commerce instead of appropriately facilitating it.
However, in conclusion, I want to address the business people. When we market to you and when we serve you as clients, you are the customer, and to an extent, the customer is always right. (At least, we want to try and help you and not tell you what is really on our mind.) There are some more generic things that I would like to tell clients, which perhaps is not what you want to lead with when you are trying to obtain or retain work.
First, get the right lawyer for the right job. Don’t think that one attorney can do everything.2 The world is more complicated than that. If you bring a litigator to a complex transaction (or vice versa), you will get the heartache that you deserve. Some lawyers, including myself, spend a large portion of their practice managing or delegating to other lawyers in order to get the right attorney. Sometimes you need a lawyer to help engage other lawyers; sometimes you can do it on your own. Regardless, have enough wherewithal to know that one lawyer is not a jack of all trades.
Second, tell the lawyer all the facts. If you let or require a lawyer to work in a vacuum, their work is not going to meet your expectations. Part of our job is to gather the facts and decide what is relevant. If you let us sort out what is and what is not relevant, you will be better served. If you artificially limit our role, our performance will be subpar. If you are working with other lawyers, tell your attorneys. A second pair of eyes is always appreciated; second guessing is not. Also as you discuss your problem with your attorney, do not bring in random stuff from the internet and pretend that you know more than you actually do. If you have seen or heard about something, feel free to ask your attorney. Be careful with your terminology, sometimes industry jargon is confused for widely known legal terms.
Finally, and most importantly, do not lose your ethics/moral compass3. There is a difference between what you can do in business and what you should do in business. A lot of our economic system, particularly financing, is based on trust. Individuals loan money to other individuals. Individuals invest in other companies. We must remember that even if these arrangements are through large public companies, we are always dealing with individuals. Our system is based on faith that the receiver of the loan or investment can be trusted to deal with our resources.
Contracts must be read in a spirit of “how do we get along?” – not “how do I take advantage of someone else?” You can always finagle the words to your advantage. Ultimately, however, that type of interpretation will just lead to an equally finagled reading on the other end. You may be able to hang your hat on one phrase, but the other party can hang their hat on the other phrase. If you take advantage of one party, even if you are entitled to do so under a contract or other legal document, they will be looking to take advantage of you somewhere else. Our system is based on good faith and fair dealing, and regardless of whether you are legally required to have that duty, if you do not deal with someone in that manner, you will not have my respect, regardless of whether you are my client or not.
Goodrich Law Firm, LLC
1 — One of the most laughable things the Alabama state bar requires is the use of the disclaimer, “No representation is made that the quality of legal services provided …” The phrase is archaic, born of an age where, as professionals, we did not (allegedly) compete with one another. The bar needs to recognize that we do compete every day with one another; this disclaimer is just another overlooked piece of verbiage of no effect; in fact, all lawyers are making representations that they are better than another lawyer in almost of everything they do. Why can’t we just let the market sort out the legal marketplace? By attempting to regulate the market, we underestimate (at our peril as lawyers) the sophistication of the public. Yes, there are people who are actually in ambulances who need protection from the ambulance chasers, but our professional regulations cast a large net over a small problem. We need to move boldly into the new millennium.
2 — While I am taking pot shots at the bar in the footnotes, let me add another area where I believe the professional ethics fall short – the lack of specialization. Numerous times, I have done a search and replace in attorney marketing material for “specializes” to change it to “focuses on.” I have been practicing small business law since 2003. Why can’t I say I specialize in it? Doctors have specialties; shouldn’t the bar focus on facilitating the various specialties within our profession? I am not advocating that we allow just anyone to put out a website that they “specialize” in something. However, we currently have very few certifications – elder and patent law. We need more, and we need to encourage lawyers to market what they actually do (as opposed to what they want to do) with a better certification system and decreased regulation on attorneys being “specialists.”
3 — While I am taking potshots at institutions, let me tell you that I have found the biggest offender of this “do what is right” motto is the self-professed Christian. Routinely, when I hear someone is “a good Christian,” I prepare for the worst because someone is about to get taken advantage of. While this is a broad generalization, it is one based on experience where probably 90% of the time that “good Christian” is behaving with a seriously warped moral compass. My experience has been that good Christians do not pay their bill, get in fights over petty disagreements, and swindle for their own economic advantage. I know that most Christians do not do this and most are good human beings. However, the more boisterous of the Christian bunch are doing their best to bring down the entire group. Don’t tell me you are a good Christian; show me that you are one.