John M. Coogan
Wolf, Block, Schorr & Solis-Cohen
Vice-Chairman Corporate Department

The Role of a Corporate Lawyer

A corporate lawyer must be able to serve as a counselor in every matter likely to be important to the decision-makers of a business. The people who have ultimate responsibility and authority for a business of any size, from sole proprietorships to General Electric, want to be able to ask their lawyer almost anything and get a response that provides value they couldnt get from anyone other than their lawyer. They want not only information about what the law is, but also a special blend of technical and practical advice that only a lawyers perspective can provide. These business leaders approach their lawyers for a full and complete answer. To fulfill the role properly, a corporate lawyer must be able to handle any topic germane to a business and address nearly every
type of legal question. The questions and problems will range from minute to overwhelmingly broad, covering issues that will be a mix of business and legal, or social and legal, or ethical and legal, and so on. You truly must be a general counsel in the broadest sense. You must be prepared when the client asks not just, What can we do? but What should we do?

Generally, the main reason business clients go to their lawyers is to find out what the law will and will not allow them to do. Therefore, your first job is to know the law and how it applies to the clients situation. In addition to a detailed knowledge of law and regulation, you must be able to advocate for your client, not just read the rules and say, This is what the rule is, but to practice it. Advocacy does not begin and end with the litigation department. The client needs the right technical answer, but at the same time you must be able to view the matter objectively through the clients eyes and not be just a bloodless technician. Many people have the talent to read the law and pronounce its obvious, or at least readily apparent, interpretation; the business lawyer who is a successful business partner will see the clients position and help that client assess business risk and business possibility. It requires an ability to compartmentalize your brain. On the one hand, you must be the technician, and on the other you must view the situation from the clients perspective, understand how the client thinks, and know how to best communicate to help the client assess risk, reward and possibility.

Let us not overstate the case. Many business and corporate lawyers have long, productive, satisfying careers working in highly technical areas, spending much of their time on similar transactions, where they become intensely experienced in certain kinds of deals and the applicable areas of the law. Other attorneys frankly get bored a little with the details, and while the optics of a lawyer described as bored with the details might be disconcerting, lawyers with a certain level of experience (how else would they have gotten bored?) who prefer administration, delegation and marketing should fill the role for which they are best suited. Your role will depend on your mix of skills and what you want to do.

Its probably unwise to stray too near either extreme. If one is simply a technician, you may miss out on the satisfaction of client relationships and client development. Moreover, the economics of modern large firms almost demand that a lawyer be able to expand a practice, if not generate one. If not, that partner may later be at risk economically and politically within the walls of the firm. By the same token, you cant forget that youre a lawyer. If youre a partner, youre signing opinions. You took an oath; you have got a professional responsibility to be the person ultimately responsible for the law. You must stay grounded in the law, not stray too far into the world of marketing, because then you may just as well be in consulting, investment banking or a number of other jobs. You must remember that ultimately, you are being hired because you are the lawyer.

In my own firm, we represent clients ranging from startup businesses with neither operations nor funds to established publicly-traded companies. What makes it fun and challenging is that we have a spread of enterprises from the nascent to the mature: somebody with a business plan spread out on a bedspread in a one-bedroom apartment to people running established, decades-old public companies with thousands of employees.

In major firms in larger markets such as New York, Los Angeles and Chicago, you tend to find attorneys practicing with greater degrees of specialization. For example, an attorney may do only mergers and acquisitions, or represent investment banking firms in the underwriting of securities offerings or financial institutions in lending transactions, because they have built up a tremendous subspecialty and saturation in a narrow area, and they are brilliant at it.

In smaller markets and at smaller firms, you really must be more of a classic general counsel to be successful. Because of the history of our firm and nature of our corporate practice, most of my corporate partners and I usually find ourselves in this sort of role. I have to assume there is some self-selection and self-definition process at work here, in that we have settled into the type of role that suits us best. As a result, there are always a variety of things to do and learn, and we meet a broad range of people as potential clients.

One naturally braces for the counterargument: If you are doing all these types of things, are you particularly good at any of them? Jack of all trades, master of none? In an age of increasing specialization, is there still a role for this type of attorney? Obviously, I believe the answer is yes. Am I as facile in some particular kinds of transactions as people who undertake them on a regular basis? Absolutely not. But thats not why my clients want to work with me. They trust that if a particular type of technical expertise is required, I have the judgment to find them the right answer, or the right person, to reach the result or fix the problem. I wont necessarily do all the fixing myself, but clients trust that they will be happy with the end result and the method of its achievement.

Building the Client Base

To state the obvious, it all starts with the clients. No clients, no practice. To do the interesting work, or any work, you need clients, and because every firm periodically loses clients for a variety of good and bad reasons, you need a constant flow of new business in the pipeline. Our firm is fortunate to get a number of new clients by some combination of reputation and word-of-mouth. Our firms name is well-known, particularly in the mid-Atlantic region, and referrals often come from current clients and that loose confederation generally known as friends of the firm. We also get referrals from other law firms because of a conflict that firm has in representing two sides of a transaction. We get other business from people who once worked for current clients but started their own businesses or moved to new businesses; when a legal need comes up, they think to call us. Finally, theres old-fashioned marketing: trade shows, speaking engagements, phone calls, breakfasts, lunches, drinks, dinners. To fully round out the development of a client base, there remains no substitute for getting out and selling, and the practice of law is no exception.

Rarely do firms our size get many people walking in off the street. When we do, we always undertake the first line of client intake due diligence. This involves internal conflict checks, a LEXIS-NEXIS and Dun & Bradstreet search, and the low-tech method of asking around, starting with the question: Has anybody ever heard of X? Once we are comfortable that nothing obvious indicates the potential client is unethical, has a criminal past or engages in a type of business with which we may not want to associate, we start thinking about the second level of inquiry: Is this the kind of client that will call me every day and never pay? Is this going to be fun? Is this going to be profitable? Is this going to be something I feel good about when I go home at night? Or are these guys going to suck the life out of me? There are elements of all these little decisions that comprise the client intake process.

In building and maintaining a base, I made one key discovery as a mid-level associate practicing at a boutique firm in New York: People tend to shy away from difficult clients. I discovered that a great way to make my place in the firm was to be openly willing to take on tasks other people didnt want to do because the client seemed prickly, obnoxious, demanding or exhibited other negative personality traits. I learned over time that while these clients were often in fact prickly, obnoxious and demanding, as long as I did good work and was responsive, they developed of level of trust for me and for my work. The rough edges around these apparently negative personality traits began to smooth over. I ended up having positive, long-term relationships with some of these problem clients, because I found the qualities that seemed like negatives at first were some of the same qualities driving these people to be successful. You dont need a law degree to figure out that successful clients offer much better long-term relationships than unsuccessful ones.

New clients come to us for a variety of reasons. Some are starting new businesses. Others have established business but are dissatisfied with some aspect of their current representation, or the firms that represent them dont have strength in a needed area of expertise. Some larger enterprises simply like to spread the work around; because they have a variety of legal needs, they are able to give you pieces of their business. As companies get larger and employ more people with legal purchasing authority and responsibility, they often use more than one law firm. Often the marketing and relationship groundwork has been laid, and when they finally do call you, you have completed many of those conversations already: What does the law firm do? What does the client need? Do we have the requisite skill set and reputation? Can we meet their demands for quality, responsiveness, and price? Is this a personality fit? Can we help them in other strategic ways? Are they a good long-term bet, or is this a one-off deal?

With startup company clients, the process is usually a little different. Often, we are introduced by one of the aforementioned friends of the firm. We might meet a potential client at a venture capital expo or at an entrepreneurship assembly. We might be introduced by venture capitalists. Startup company client selection requires a little more due diligence: looking at the jockeys (the people) and the horses (the business plan) and trying to make a qualitative assessment: Is this a good fit? Obviously, we can do the work. Is it good for us and good for them? Is this going to be a waste of our time? Are we too expensive for them? Are we ever going to get paid? Are we going to be able to help them get funded? Are they the right fit for our firm or should we refer them to a smaller firm with which we have a good relationship? Those are some of the types of questions we ask. The basic one with a new startup client is: Where is this relationship going to be in 18 months? Are they the right fit for a firm that charges our rates and wants to have a level of sophisticated work that keeps the partners and associates happy and engaged?

Keys to Practice Success

Your Ethical Foundation

This was the One Rule long before anybody ever heard of a company called Enron: To be successful in corporate law, you must do the right thing. You must have a value system rooted somewhere, remember you took an oath, and remember that all the money in the world isnt worth your reputation or your word. Thats the starting point, and it’s the ending point. Otherwise, what’s the point?

Once you have established your own ethical and moral base, the harder part starts. Many lawyers like a bit of certainty. We went to law school and gravitated toward the profession because we saw an important distinction between right and wrong, permissible and impermissible, proper and improper. But to see things through the client’s prism, you need to learn to adjust a little bit mentally to the fact that risk for a business executive is not the same as risk for a lawyer or for the accountants, the other groups of professionals to which business executives generally turn. The profiles are very different. For fun and to illustrate it for new associates, I usually describe it this way: For an accountant, something has to be about 98 or 99 percent certain, below which the accountants internal alarm goes off. For a lawyer, the trigger level generally swings from 90 to 95 percent.

If an entrepreneurial CEO gets to 70 percent, he is kicking himself because he waited about 30 percent too long; when its about 40, they get itchy to get moving. And thats fine. Of course, we are not talking about breaking the law here, but general business risk, which is for the client to decide.

But back to our ethical base. Thankfully, we have ethical rules and practices that govern when you should and should not (or in more extreme cases, do and do not) have to stay engaged with a client when you are not comfortable with whats going on. The bottom line is: You have to have deep roots in whats right vis-Р°-vis the law and society. If you dont have that, its going to be very hard for you maybe not to be financially successful, but certainly to get to the top of your profession. You cannot replace reputation, and your reputation has to be the foundation of your practice.

People who have a high reputation for ethics arent usually known as being sloppy, lazy or unresponsive. Thats not to say that people who arent as industrious or who are a little more willing to take risk on work precision are unethical. But I do know that when I look at people who are ethics-driven, theres a good chance Ill find other good qualities that can lead to success. Your reputation and word of honor are far more valuable than the sum total of any fees you or your firm might receive in the course of either your or your firms history.

Ultimately, we are in a professional customer service business, and our goals are the clients goals. There are certain things we as lawyers cant do, and risks we wont take, because were lawyers, but our goals are really the clients goals. If that isnt the case, you probably shouldnt represent that client. If you cant or wont go along with the client, say so. If its someone youre comfortable referring, send the client to another lawyer you think could help and with whom you have a level of professional respect.

The Joy of Service

You must remember that when you take away the education, the oath, the professional status, i.e., the lawyers trappings of office, youre in the customer service business. At bottom, its not a whole lot different from waiting tables. As a waiter, you have to know what youre serving, how its made, how its served, and the customer expects you to know it well. You must give customers what they want, anticipate their needs, fix their problems, make them feel good about the whole thing, and not charge them too much for the privilege, or they wont come back and pretty soon youll have an empty restaurant. For the lawyer, the analogous tasks are answering the phone, taking the clients problems seriously, providing expertise they dont have (and likely dont want considering the boring details) and do it for a price that makes sense for their businesses.

You have to love being in a service business. You have to love getting the phone call: Hey, can you help us? Can you help us not can anybody help us. Can you help us? You have got to love that. Thats got to be a rush. Me? You picked me? Youve got to get some emotional satisfaction from it. It has to be fun. It has to be exciting to get the call, to get the engagement letter, to get the check, to get the thank you. Youre in the customer service business at a very high level, and if you lose that sense, you have to get it back. Youve got to put yourself in a position where you can get it. The rest of it is just reading and writing.

The Skills of Practice

You also have to be able to handle many things in your head at once. I started my legal career clerking for a well-known justice on the Delaware Supreme Court. Justice Moore distinguished between lawyers who were very good as long as they focused on one task at a time versus those who kept seven matters flying at once, and stressed how important it was to be part of the latter group. Some lawyers are very good at thinking about one thing at a time, but to be successful you have to keep seven or eight things in the air at once. You obviously need to delegate tasks such as research and drafting. But you have to be able to think about more than one thing at once if you want to have a successful large-firm practice. Otherwise youll never stay open.

Of course, theres a trick to the talent identified by Justice Moore, which is now called multitasking. Some of the best advice I ever received as a desperately busy mid-level associate in New York came when one of the partners said, Calm down. You can only do one thing at a time. That seems to contradict the previous judicial mandate to keep seven things in the air at once, however its the ability to do both thats so important. If you concentrate on more than one thing at once, you will get nothing done, and certainly nothing done well. You can learn to manage several things at once, but you cant do seven things at once, and you can only finish one discrete task at a time. There is more of a premium on precision when you are an associate, since you are more likely to have greater responsibility for the bulk of the effort on written work (e.g., an agreement or a memo) than the reviewing partner.

The mental transaction costs of shifting your brain from project to project will rapidly erode productivity. You must be able to block out distractions and concentrate on one thing at a time while youre doing it. Keeping seven things in the air means the ability to work on a number of large matters simultaneously, but to start and finish individual tasks within those large matters discretely. If you cant focus on whats in front of you and keep that focus for the appropriate duration, youre probably not going to be successful. I believe this was the single most practical piece of professional advice I received. (That, and to please stop interrupting people and finishing their sentences for them.)
Another key skill is to learn how to handle making mistakes. This doesnt mean you want to make them or that youll get used to it” so that its easy to shrug off errors without a prick of conscience. But at some point youre going to make a mistake, and youll be judged on how you pick yourself up and keep moving.

Thats a rite of passage you simply must experience. Youre going to make mistakes theres no way around it and how you learn to handle them will define your career. Every corporate lawyer has the occasional moment when he sits bolt upright at three oclock in the morning, wondering if what he said was right. Usually it is, and it means your governor is working. It means you care, that precision is important, and that you know how grave consequences can be for your clients and you if you are lazy or sloppy. You have to keep a healthy sense of fear and respect. Even our most senior partners have their private moments of doubt, which I think just makes them human. We all have it. If you dont have it, that may not be such a good sign.

Dont discount the clich that you dont get what you deserve, you get what you negotiate. The key to successful negotiation is that you prepare for it like you would prepare for any other kind of competition. You do some analysis. You do a SWOT, or strengths-weaknesses-opportunities-threats analysis. You figure out whats important to the other side, what their strengths and weaknesses are, what your goals are, where you want to start to get to where you want to end up. You must know your client very well if youre negotiating – because your negotiating authority varies from client to client. In many cases, the client doesnt want the lawyer to open his mouth, and in some cases, youre trading a legal point for a business point. You really have to know your client. And then you have to know the other side. At that point, you can be ready to go, but you have to prepare for it like a combination of debate, theatrical performance and athletic competition all at the same time.

What separates a great corporate lawyer from a good one is the capacity for original thought in a business where, if you have to be original, it probably means somebody is in trouble. If none of the obvious solutions work, there is a good chance the client has put itself out on a limb, and you have to get it back. Its the ability to think creatively and have an original thought that will make you great as opposed to good. Sometimes an original thought is simply a product of sifting through everything you currently know and seeing a new application for something obvious. Sometimes its a bolt from heaven. As Edison said, its 99 percent perspiration and 1 percent inspiration. What separates the great lawyers from the good ones is their ability to think creatively: to think of brand-new things extremely rare or to take old ideas from different contexts and find new applications far more common. There are many smart people who work hard, talk to clients, crank out precise paperwork and negotiate effectively. What makes the great ones is the capacity for original, creative thought.

Dealing with Change in the Industry

Each industry is evolving constantly, and in the last quarter of the 20th Century, change arrived in a big way to the practice of corporate law in the U.S. Having an active practice and being involved in marketing and client development keeps you well attuned to changes. You can read it in the clients and their expectations. You see other attorneys, and you read the trade papers. Its really an ongoing process. In any dynamic system and ours is no different step one is to stay close to your clients, because if youre a little slow to react to a change, theyre less likely to be terribly upset as long as youre generally performing. But you have to be leading the way a little bit. You must be thinking about ways to change and improve all the time; if youre in that mode, you probably will handle it pretty well. You need to be the one constantly tinkering with your approach, trying to do more, trying to do better. Improvement and growth have to be part of your modus operandi. Each system is dynamic. You constantly must be looking for new clients, new approaches, and new ways to be helpful. If youre doing that, youll be the one making the changes, not just reacting to them.

The roles of investment banker, venture capitalist, business consultant and lawyer keep blurring, and, particularly with emerging companies, you must be much more of a business counselor than previously. People were once willing to pay good fees for careful, perfectly drafted, 40-page single-spaced contracts and memos. Clients are increasingly less willing to pay for that style of legal service any more. Clients put an increasing premium on higher speed and lower cost, so theres more pressure on getting right answers more quickly. Thankfully, research is now much more streamlined with the electronic tools available, so we can get answers faster. Like everything else, the speed of deliverables has increased drastically.

Some people havent handled that as well. Some have gone into the law because they like business but dont have the mindset or the ability to be decisive. They like time to think and ruminate. That time has gone away. You must operate much more quickly now. Obviously, theres a quality risk. People might be more willing to take a fast answer rather than a slow, careful one that might be marginally better or more precise. Thats what has changed so much: the speed. But, then again, you get more fun things to do more often. Youre spending less time proofreading documents and more time thinking: I cant believe thats bad.

Ironically, while clients have become less patient with everything, including a lawyers work product, theres a lot more process now. The most recent driver of the increase in process has been the passage and implementation of the Sarbanes-Oxley Act of 2002, the fallout of which is hitting more than just Americas public companies and their legal, accounting and investment banking advisors. This is not the first ethical crisis. These and similar crises have occurred periodically throughout history, and its naРїve to think these things dont repeat themselves. For instance, we had the S&L scandal in the 1980s and the events that led to passage of the Foreign Corrupt Practices Act in the 70s. There was an ethical crisis in healthcare in the 90s, and healthcare companies had to establish compliance programs and have a new focus on ethics. Its the same issue being played out on a grander scale, and every time it happens you create more paperwork, more process. I think its better when people struggle with the process a little bit. Youre not going to make saints out of sinners, but youre going to help people on the margins, and thats not a bad thing. Certainly, the Sarbanes-Oxley requirements have created a lot of work for everybody, both lawyers and clients, but theyve also stimulated a lot of thought. I believe the people inclined to be honest will find these new processes fairly easy to deal with from both emotional and time standpoints.

In an ideal world, I would like to see the legal profession head toward an integrated service delivery model, where lawyers would continue to provide legal expertise but deliver a broader panoply of consulting and other services. As a practical matter, many of us currently provide advice and counsel to our business clients that goes far beyond the scope of the application of fact to law. As our profession continues to evolve, and the deliverables from consulting firms, law firms, accounting firms and investment banks continue to merge in substance and style, there will still be the need to serve the client who needs to look someone in the eye and ask, What should we do?

John Coogan practices in the Philadelphia office of Wolf, Block, Schorr and Solis-Cohen LLP, where he serves as vice chairman of the Corporate Department and leads the firms Emerging Business Group. His practice involves a broad range of corporate and securities matters, with concentrations in the areas of emerging businesses, mergers and acquisitions, securities offerings and corporate governance in the representation of publicly-traded and privately-held companies. In addition, he provides health law and corporate advice to various health care providers in connection with the firm's Health Law Department activities.

Coogan is a member of the Bars of the Commonwealth of Pennsylvania and the State of New York, and the American Health Lawyers Association.