Consider this extremely common scenario: a business is considering taking an action regarding a supply-chain partnership with a company from another state. After doing the initial due diligence on the proposed deal, the business calls its attorney and asks the most common question an attorney receives: “Can we do this?” Quite often, the attorney takes that question literally and will look into the deal, the legal considerations, and render a verdict: “Yes, you can do that” or “No, you can’t do it that way, but let me find a way to make it work.”
This type of attorney/client relationship is incredibly common, with the attorney serving as a stamp of legal approbation or prohibition but nothing further. Most businesses approach working with attorneys in this model, with the attorney as the grease that makes a transaction or sale happen.
But what if this approach is predicated on an inherently limited question? What if the business asked, or the attorney responded to, a different question: “Should we do this?” Think about the fundamental difference here; in the first example, the attorney acts as a mercenary to provide approval for the proposed action, whereas the attorney in the second scenario provides something more: not merely a yea or nay, but a nuanced legal and business recommendation regarding the terms of the proposed supply-chain deal.
To put a fine point on it: just because one can legally take an action does not mean one should take that action. Needless to say, this principle extends beyond business deals or corporate governance. There are many ways a family can legally structure its estate plan, but do you want your attorney to merely be your scrivener or do you want counsel on best options? Do you want to know the different tax implications of probate versus various trusts? Would you like to hear about what potential benefits there are to an irrevocable life insurance trust (ILIT) when the payout of a life insurance policy might otherwise accrue to the deceased’s estate?
What I’m trying to say is you should expect more from your attorneys! I encourage each of you to find an attorney who takes the time to understand your wants and needs, your family’s wants and needs, your business’s wants and needs. Find an attorney who is a partner with you on your path toward whatever goals you might have. Ultimately, you might hear what initially feels like “no” more frequently, but will in fact be provided more, and often better, options. Rather than sign off on the supply-chain deal, your counsel might say, you could do that and here are some considerations we need to address that make this deal ripe for disputes and possible litigation down the line. What’s more important, the initial rush of the deal or avoiding the downstream consequences of potential friction points in the deal? You might not know, but that’s a good conversation to have! But you won’t have that conversation if your attorney stops at “Can we do this?”
Value yourself: work with counsel that cares about the ongoing and longstanding health of your business, family, or other ventures. These are the most important matters in your life. Find counsel to whom it matters that the job doesn’t merely get done, but is worked through in a way that best ensures the desired ultimate outcome. You’re thinking long term; shouldn’t your attorney be as well?