The Lawyer/Business Person Dichotomy

             "You are not a businessman."

            " And you  are not a lawyer."

            This was the substance of a spirited "discussion" I had with a client a couple of weeks ago.  The exchange  has stayed with me because I think it illustrates an important and often-overlooked distinction.

            I wish I was more of a businessman.  I think all solo lawyers are by definition entrepreneurial but after three decades of doing this, I know that I lack a number of the fundamentals of business acumen.  However, I am confident that I make up for that deficit by being analytical, by being able to evaluate risk and most of all by being aware of what needs to be done to protect the client.

            There is the rub.  Not all clients want to be protected.  A lawyer (at least the ones who do their job) often gets caught between trying to advise the client to do the prudent thing and the client's other strategic goals.  If you read enough advertising and marketing materials, you will see those ads by lawyers who boast that they excel at "bet‑the-company" litigation.  This always strikes me as foolish.  Only in the most dire of circumstances would a businessperson ever decide that it is worth it to "bet the company".  I have tried to make one of my mission statements :(there, that's a business term isn't it?) that I "help people find solutions to complex problems".  That really is the challenge where law and business intersect. In other words, a lawyer should help to advance a client’s goals while at the same time protecting the client’s interests. Sometimes that means trying to protect the client against themselves.

            This can play out in many ways.  In transactional work, it could mean knowing approximately how much you can ask for without blowing a deal.  In litigation it is much more complex.  Any lawyer will tell you that settlement is always preferable to risking a trial; there are too many variables.  Sometimes there's a lot of posturing, like an expensive game of chicken.  We like to think that the world is a rational place.  The older I get,  the more I realize that this is a fallacy.  In the end, there's going to be a constant struggle between the particular kind of mindset it takes to succeed in business and analytical lawyerly risk evaluation.  This is not a bad dichotomy, it keeps us all employed.  Sometimes though,  it is startling to realize that it is in fact a very real dichotomy and one that can often cause tension in lawyer-client relationships.

Thanksgiving Blog

I just looked up and realized that I have been back in my solo practice for 10 years this month. This follows 4 years where I was associated with a firm, 9 years before that when I was first in solo practice and about 6 years when I was in my first partnership with my friend Ken Levitan.  The last ten years have gone by in a blink of an eye. Seriously. It’s shocking to me that I have been in practice for 29 years. I have gone from being one of the young lawyers to being one of the old guys.

These last 10 years have been interesting, challenging and ultimately rewarding-although I don’t always acknowledge it.  A lot of the things that worked during my first years of solo practice no longer work. A lot of things work better. The traditional models of the entertainment world are gone. For a lot of artists, that’s a good thing. For everybody else, I think they are still feeling their way through this period of immense change; but it all feels really positive.

So, in the season of Thanksgiving I would like to sincerely give thanks to my clients, friends, family and other attorneys, all of whom have supported me while I try to continue the mission of this law practice—to help people deal with complicated issues both in and around the music business.  I want to get  better and smarter at doing this and I look forward to another 29 years.

Can't Get a Job? Sue Your Law School

I am still bemused by an article I read in the Wall Street Journal; a few weeks ago which detailed two lawsuits filed by graduates of Thomas M. Cooley Law School in Michigan and New York Law School. The plaintiffs, graduates of the two schools, are suing the schools for allegedly distorting the employment records of their graduates. The suits seek tuition refunds and damages. All of this seems ironic to me. Lawyers can’t get jobs so they sue their law schools. Everybody knows that there are too many lawyers but can we really say that is the intentional fault of the law schools? I don’t remember my law school promising me anything other than to teach me “to think like a lawyer” (or was that Professor Kingsfield from The Paper Chase?) With many years of hindsight I see the benefits of a legal education and I have seen many lawyers successfully apply their training in non-legal careers. I think that it is unfortunate that so many people go to law school thinking that graduation is an automatic ticket to a great job but I don’t think that this is necessarily the fault of the institutions. It will be interesting to see how these lawsuits play out.

So, what is it that You actually do?

I recently heard a story on NPR about primary care physicians and how their patients and the public are unaware of how much work they do behind the scenes (reading test results, returning phone calls, calling in prescriptions and dealing with the health care bureaucracy). It made me think of the fact that most people are unaware of what lawyers do behind the scenes. I remember the idyllic view of what a law practice must be like I had while I was in law school. I thought lawyers sat around on the phone all day long, being smart and getting paid.

Basically, for starters, what we do is read. We read contracts, motions, cases, statutes and e-mails. There is also a lot of proofreading and editing the endless trail of paper we seem to generate. A lot of work goes into worrying and trying to get the best results for our clients. There’s also a lot of waiting involved. Waiting to hear from clients. Waiting to hear from opposing counsel. And judges. And clerks. And, of course, waiting to get paid. When you can organize your time well and the stars align, this sometimes works rather seamlessly. When it does not work, though, the whole system can collapse in failure.

None of this is meant to sound like a complaint. Hearing that story about primary health care physicians made me appreciate my own doctor more (especially when he gives me his cell number). It also makes me realize that as lawyers, we can try to do a better job of explaining to clients what we actually do for them, and how the process actually unfolds.

Charles Lamb Said It

"Lawyers, I suppose, were children once."

-Charles Lamb, from the epigraph to Harper Lee's "To Kill A Mockingbird" (1960)