Michael L. Jamieson
Holland & Knight, LLP
Chair, Business Law Department

The Role of a Corporate Lawyer

Few aspects of the private law practice provide the diversity of experiences, intellectual challenge and opportunities for creativity as the corporate practice.

A corporate lawyer plays a dual role. The first element requires the lawyer to be current on the technical aspects of corporate legal issues – to be a specialist in corporate law, securities law, and related disciplines that are important to a corporate client. The second is more of a general advisory role that involves knowledge of the clients business, undivided loyalty to the clients interests, and serving as an objective sounding board for the client with respect to legal issues. The most important characteristics a corporate lawyer can possess are undivided loyalty and an understanding of the clients business and strategic objectives. It begins with knowing the clients business – staying constantly in tune with the clients business environment and legal needs.

Research is helpful but is no substitute for the most fundamental, often overlooked, element of client service – listening to the client. Undivided loyalty can sometimes seem complicated because corporations are governed by individuals – officers, boards of directors, and employees – but it is critical for the corporate lawyer to remember who his client is. In contrast to most, if not all, other professional service providers, lawyers have only one obligation – to the client. That is the keystone of the relationship. The most difficult situation for a corporate lawyer is one in which – and we have seen this occur recently – the interests of management diverge from the interests of the corporation. Fortunately, that is a rare occurrence. When it does occur, the lawyers job is difficult because management is the voice of the corporation. The lawyers recourse is to the board of directors, however, directors are part-time, typically very busy people. Although usually highly qualified and competent, they are less knowledgeable than management about the intricacies of the business and therefore limited in their decision-making capabilities, unless the decision involves retaining or selecting a chief executive officer.

It is not a satisfactory situation, and one that every corporate lawyer wants to avoid. What separates a good corporate lawyer from a great one, assuming equal technical skills, is commitment, availability and accessibility. The practice of law is a service business, and clients expect – and are entitled to expect – access and availability on the part of their lawyer. I think the kind of commitment required to provide that availability is what separates the best from others. For example, my firm includes about 350 corporate lawyers. They are trained from the day they enter the door that their job is to be available to clients and to one another all day and night, every day, and to communicate their availability to our clients. We facilitate that accessibility by equipping our lawyers with traditional and electronic communications tools, and we tell our clients about the tools that are available to them.

Although it is not clear that clients always appreciate it, objective judgment is something a lawyer can bring to the strategic and operational decision process that is sorely needed. Much of the advice clients receive from other sources is not objective. For example, independent accountants have obligations to the public, the fees of investment bankers are typically contingent, while corporate lawyers ordinarily do not work on a contingent-fee basis. Those kinds of relationships are not inherently wrong. In fact, they serve important interests, but they do impair objectivity and single-minded commitment to a clients interests to the exclusion of all other considerations.

An additional aspect of our role is advising clients of risk. There is rarely such a thing as a pure legal risk. Most risks involve mixed elements of law and business considerations. The corporate lawyers job is to assess and evaluate the legal risk. The clients job is to assess and evaluate the business risk. Clients do not pay us to do the latter. They want us to do the former, so that is where we concentrate our focus. Decisiveness is another important quality, especially when confronted with risk. The answers to legal issues are not always clear, but a client pays a corporate lawyer for his experience and judgment, and the client is entitled to receive the benefit of the lawyers best judgment with respect to a difficult issue, not equivocation and indecisiveness.

The role of a corporate lawyer is one of a trusted advisor who is consulted at every turn for guidance on business decisions. Once a companys business objectives are understood, a good corporate lawyer anticipates how the clients legal needs may be affected by changes in the business climate. He actively engages in finding solutions and innovations – thinking ahead for the client in anticipation of problems before they occur – protecting interests at the first sign of risk.

The Lawyer-Client Relationship

With potential new clients, the first question I generally ask is what they expect in a lawyer. I also inquire about a corporations governance and internal counsel structure, because that often determines the kind and level of skills that we will be required to provide. From me, prospective clients want to know the level of my prior experience – and my firms prior experience – in their area of business activity. My initial conversation with a potential client is personalized, but I function as a member of a large team and strongly believe that exceptional service to corporate clients is a team sport. The kind of interchange I have with clients is from the perspective of a member of a team, which will include the clients law department, and not just an outside advisor working in isolation.

A successful lawyer team incorporates specialization, unselfishness and commitment to the clients interests. In my firm, which is an international firm with multiple offices, it is important that we are able to function seamlessly without provincial or selfish influence on client service. For example, unlike many professional service organizations, we do not have local profit centers. This organizational structure provides important benefits to corporate clients, derived from our size and specialization. It means that there will be no provincial or other financial disincentives to prevent the clients having access to the most highly-skilled and experienced specialists in the clients particular areas of need. This is of paramount importance from a clients point of view and for our firm. Once the goals of an assignment are set by the client, it is our job to serve that client as broadly as we can. We are a broadly based, diversified firm of many specialists, so we can provide services to a corporate client across all those specialties, depending on their business. We believe that the seamless approach we take serves the clients interest across a wide range of areas much more efficiently and effectively than a large number of different service providers would. Once client needs are identified, the relationship partner, often a corporate lawyer, is responsible for assembling the lawyer team. As the lawyer responsible for the relationship, it is his duty to oversee all matter planning, budgeting, reporting, and evaluation functions of the team. The role is similar to that of a project manager.

The relationship partner is also responsible for aligning the complexity and urgency of the clients matter with the appropriate firm resources. He often serves as the principal legal diagnostician, in concert with the clients internal lawyers. The client should understand that the relationship lawyer is vigilantly monitoring the quality of the work and will be accountable for all aspects of client service. Fundamentally, the client should clearly understand that only one phone call, to the relationship lawyer, is necessary if a service problem occurs.

Being a good listener is one of the most effective tools a lawyer can employ in providing exceptional client service. A good corporate lawyer must establish a relationship with his client that demonstrates that he is totally committed, that he has no agenda except to serve the clients interests, and has no other constituencies except the client and the clients interests. The relationship can then evolve over time, often resulting in strong bonds between clients and their lawyers. And at the highest relationship level, the clients management will view the lawyer as a valued resource who understands the clients business and industry.

Listening to the client is vital to staying abreast of a clients business environment and legal needs. Lawyers should consider meetings with clients solely for the purpose of evaluating performance an essential part of the relationship. These meetings should occur at least annually and should be viewed as an ongoing investment in the client relationship that reaps high returns to both parties. They need not be complicated or lengthy. They may simply consist of a few important questions such as, How are we doing? Is your lawyer team being responsive? Are we promptly returning your calls? Are we meeting our deadlines? and, “Have we assembled the right team for your business needs? If the lawyer is not asking these questions of his client, he is not demonstrating a true commitment to client service.

Relationship lawyers have an obligation to staff flexibly and approach the clients legal needs by taking full advantage of the expertise and strength of internal counsel and staff. By working with clients to employ their existing resources, the lawyer provides value for the clients dollar. Whenever possible, lawyers should be creative and look at non-traditional ways to provide cost-effective service. We frequently serve clients through videoconferencing and extranets, and we provide in-house training to the legal staffs of our corporate clients.

I tend to work with clients on strategic and corporate governance issues. I also draft legal and disclosure documents and do quite a bit of negotiating on business transactions on behalf of clients. In negotiations, the most important thing is to understand your clients objectives. Assuming you know those goals, it is also important to understand the other partys objectives, because the purpose of a negotiation is for both parties to win. I attempt to learn the other partys objectives through discussions with my client and through discussions with the other partys lawyer and his client. With respect to other parties whose securities are publicly held, their objectives can often be discerned from documents they file with the Securities and Exchange Commission (SEC). If the results of a negotiation are not a win for both parties, it is unlikely to be a successful transaction. It is crucial to know the other partys objectives and be able to meld those without sacrificing your own clients goals.

Technology Holland & Knight makes good use of technology to deal with change. We are a multi-office, international firm and we have followed this business model since 1964, long before multiple offices became the norm for large law firms. That has required us to be on the front end of technological development. We had our own computer network long before most people heard of the Internet, and we maintain an extranet for communicating with clients on a real-time basis.

Client Communications

It is important to keep clients informed of changes as well. The firm publishes a series of electronic newsletters in virtually every law practice discipline. Our Public Company Alert addresses corporate issues and is distributed via email to all our clients that are public companies or affiliated with public companies. We have another newsletter for intellectual property, one for real estate development, and one for anti-trust developments, for example. All the firms newsletters are published electronically, so they are up to the minute. During the height of the new initiatives in corporate governance since the middle of 2002, our Public Company Alerts were in our clients e-mail inboxes within a day – if not the same day – that various developments occurred. Response from clients has been overwhelmingly positive.

More important, however, than any published newsletter or seminar that the firm might produce, is the person-to-person communication of observations and analysis concerning changes in the legal landscape that are relevant to a clients specific industry, company or business situation. This is what helps move a corporate lawyer to the role of a trusted advisor.

Changes in Corporate Law

We always want to be on top of change affecting corporate law. My firm was the first firm, for example, to announce the establishment of a national, multi-disciplinary corporate governance practice group. We announced it the day before the Sarbanes-Oxley bill was signed. We also try to be innovative. When the SEC adopted a new regulation governing corporate disclosures to securities analysts, we conducted informational seminars by videoconference for the national and local business press. I believe that we were the only firm to do so. We like to think that our efforts contributed to a better-informed public concerning the effect of the new rules.

Recent Developments

Over the last few years, there has not been much change in the law of corporations. There have been significant changes, however, in the federal securities laws, and there has been a decided shift in emphasis and orientation. Congress has involved itself in areas that traditionally have been the province of state legislatures and state courts, or federal courts applying state laws. We have yet to see the full results of the recent activity.

The SEC has had a tremendous increase in its budget resources in the last six months, allowing it to be much more active in the enforcement area than it has been in the past. Regrettably, the SEC will also probably be more subject to political pressure. The SEC has traditionally been one of the least political agencies in the federal government. It will likely be more difficult for the SEC to exercise the kind of balanced judgment about corporate and securities law issues that it has in the past because of congressional pressure, which unfortunately is not always characterized by balanced judgment. For example, when the SEC attempted to balance the difficult competing policy considerations involved in its historic first significant effort to adopt professional responsibility rules governing lawyers practicing before it, it was loudly criticized by influential members of Congress, because it was not being sufficiently absolutist.
The SEC has recently adopted new regulatory changes mandated by the Sarbanes-Oxley Act. Those regulations in general are intended to enhance director and audit committee independence, improve and accelerate public company disclosure, increase management accountability, and otherwise address many of the abuses that were revealed during 2001 and 2002. The accounting profession will be subjected to a new regulatory regime under the supervision of a new regulatory agency, and the stock exchanges will be imposing similar reforms upon listed companies.

Banking legislation that was passed several years ago imposed a requirement regarding privacy. There is also substantial concern about Internet privacy, and correspondingly there have been legislative and administrative developments in that area. That is not exactly a corporate law issue, but it affects corporations in a significant way by imposing upon them requirements that they notify their customers of various privacy policies. Ironically, that legislation also affects corporate lawyers (and all other lawyers) by virtue of an ill-advised decision by the Federal Trade Commission subjecting lawyers to its terms. Lawyers were already subject to confidentiality requirements that are far more stringent than those imposed by the legislation, and the application to lawyers of rules intended for financial institutions is confusing to clients. That decision is now being challenged in the courts.

Looking Ahead

Developments are occurring now that present the risk of a significant negative change in the lawyer-client relationship, including some elements of the Sarbanes-Oxley legislation. If confidentiality and lawyer-client privilege are not treated in a judicious and balanced way, the lawyer-client relationship and the interests of clients will be threatened.

What some self-proclaimed reformers do not appreciate is that the attorney-client privilege is intended for the protection of clients, not lawyers: It is the clients privilege. The purpose of the privilege is to encourage candid communications between lawyer and client, in order to facilitate the receipt by clients of good legal advice, and presumably thereby to encourage lawful behavior. If clients come to fear that their disclosures will be revealed by their lawyers because of governmental actions that threaten the lawyers, that important and laudable purpose will be frustrated. I believe that when the interests of clients are threatened, the interests of all citizens are threatened. An important distinction is often overlooked or ignored in the debate about rules governing the conduct of lawyers practicing before the SEC. The SEC, a government regulatory agency, is a partisan in any dispute or disagreement involving the corporations that it regulates. The judiciary, the traditional regulator of lawyer conduct, is not a partisan: It is objective and independent. To subject lawyers, whose clients are regulated by the SEC and could be involved in legal disagreements with the agency, to SEC supervision and regulation, and to require the disclosure of client confidential information to a partisan in legal disputes, presents an unjustified threat to the liberty and freedom of all Americans.
Fortunately, the SEC appears to be approaching this issue judiciously, despite outcries from some who do not appreciate the important historic role of the lawyer as protector of citizens against government excesses.

In terms of law firms, I think we will see increasing specialization. That is not a change, but I think the trend will continue. The trend toward large law firms will continue, but I do not predict the demise of the small, specialized firm. The demands, particularly of business clientele and the complexities of government regulation, will require that large law firms continue to adapt. Future developments in technology also will, of course, change the lives of corporate lawyers and their clients. I hope this will enhance communication and thereby strengthen the relationship between lawyer and client.

Ultimately, I believe the renewed focus on corporate governance is good for the development of corporate law, and it is good for society. In some quarters, there has been a loss of focus on whose interests should be served by the corporate governance structure. The reinvigoration of the focus on shareholders is a positive thing.

Michael L. Jamieson has been with Holland & Knight and its predecessor firm since 1965. His experience includes SEC registered public offerings and exempt offerings of securities; corporate acquisitions (both domestic and cross-border), dispositions, redemptions and reorganizations; SEC periodic reporting and compliance matters; financing transactions for regulated industries (such as electric utilities, insurance companies and bank holding companies); Eurodollar financing transactions and other international business transactions; secured lending; equipment leasing; venture capital financing; industrial development revenue bond financing; corporation, partnership, limited liability company and business trust matters; buy sell, voting trust and other shareholder agreements; employee compensation, stock purchase, stock option and benefit plans; corporate governance matters; and employment contracts.

As a member of the Section of Business Law of the American Bar Association, Jamieson serves or has served on the Committee on Corporate Laws and the Committee on Federal Regulation of Securities. He is listed in Whos Who in America, Whos Who in American Law, and The Best Lawyers in America (all editions). Jamieson was recently named one of the worlds leading mergers and acquisitions lawyers by Euromoney Legal Media Group magazine and listed in Chambers USA-Americas Leading Business Lawyers 2002-2003. In addition, he is a member of The American Law Institute, a Fellow of the American Bar Foundation, and served as chairman (1986 1989) of the Board of Trustees of the University of Florida Law Center Association, Inc. In The Florida Bar, Jamieson has served as a member of the Corporation, Banking and Business Law Advisory Committee for The Florida Bar Designation Plan. He is admitted to the District of Columbia, Florida and New York Bars.
In his community, Jamieson is serving or has served as a member of the Board of Governors of the Greater Tampa Chamber of Commerce; the Board of Trustees, executive committee and chairman of the Development Council of the Tampa Bay Performing Arts Center; the Board of Trustees, chairman of the Development Committee, and an original incorporator of the Community Foundation of Greater Tampa; The Alexis deTocqueville Society; the Policy Board of the Committee of 100 of the Greater Tampa Chamber of Commerce; a founding member of the Board of Directors of the Tampa Bay Business Committee for the Arts (chairman, 1989 90); the Tampa Leadership Conference; chairman of the Research Committee and member of the Board of Trustees of the Florida Chamber of Commerce Foundation; The Tampa Club (Board of Directors, 1986-1989; President, 1988); the Golden Triangle Civic Association; the University Club of Tampa; Ye Mystic Krewe of Gasparilla; and the Tampa Bay Committee on Foreign Relations. Jamieson graduated in 1964, with honors, from the University of Florida College of Law, where he was editor in chief of the Law Review and a member of the Order of the Coif. He served as law clerk to a United States Circuit Judge (Fifth Circuit) from 1964 to 1965.