Sunday, October 18, 2009

Launching a firm and new beginnings - Awakening!

It occurs to me that we lawyers have the good fortune to be in constant contact with beginnings. Without being too cliched about the inception of a law firm, starting out is rife with opportunity and possibility. It can be a very heady feeling for almost every adventurer.... but lawyer? Lawyers have to deal with possibility and opportunity at every turn with a new client, new case, new transaction, new venture. Yet lawyers and lawyering are about promoting and establishing a sense of security and stability for clients... The appearance of justice being done is as important as the fact that justice is actually done, we are repeatedly told. And so, over time, principles of law, briefs in cases, clauses in contracts are akin to the well-worn rubber of tires over-used and now liable to slip at the first sight of drizzle on the pavement. Appearance can, you see, be just that...artifice, the look and feel of stability without the real underpinning of thought, time, imagination, pooling of resources and training acquired by all of us lawyers in law school, but long ago surrendered for the security of a specialty, expertise, and the power provided by a few choice clauses of which we are king or queen. Nowadays we expect only clients to come to us for those special needs and we refer other clients out. The law has gotten complicated and unwieldy. No, not really. The law still has a firm foundation and base to provide, but the application of it to an infinite number of branches above its roots, is starting to look more like the building above is much taller than the base can support? Each area of the law has sprouted new legs, and inhabits a large domain of its own, no matter how small an area it may be. Some legal fields overlap with others and force such attorneys into other industries and even other legal domains, but this is the exception. This means that in order to do a good enough job, lawyers must restrict their focus and professional training out of law school to one or two areas max.

And so, the law has become more constrained and restricted as a profession. Why should accountants have all the fun? Actually, the above analysis could probably be used on the acccounting profession as well. Hence, the slippage in that profession has lately been glaring. What is responsible for this focus? Specialization: supposed attention to minutaie, and expertise in one small domain, that in fact ends up providing the opposite result of rampant and unchecked corruption that no attention to minutaie has been able to prevent? I think there has been so much needless complication, and so much rise in cost of legal services that it does not make sense to charge clients to do the kind of thinking that is really necessary to do on every line of every contract as we once use to do. At $400 to $1200 an hour and sometimes more, how can one justify taking any longer than absolutely necessary to a client, unless the client is a large multinational, who is doing very well. Even in the latter case, that client most likely has an in house legal department for this type of work, figures out what contract language works for it, standardizes the same and starts doing as many deals to make as much money as possible and necessary as quickly as possible. Often it is the outside counsel that are brought in to do the more complicated legal thinking in situations not previously visited by in house counsel. Cross border issues are one such area. I know I routinely help out with this thinking and with contract language in this area. But I don't stop there.

I refuse to work with clients, unless the work involved is meaningful and in some ways even, inspiring. This may surprise lawyers especially. But even contract law, when it is done on behalf of companies that have the right attitude and want to change something either about themselves or the world we live in, from innovation in industry to innovation in communication and community can be inspiring. Choosing then to live with clients that are trying to find creative solutions to their problems, to the problems of their own or other communities, aligns with my vision of how to use all the resources in my tool box, from my six degrees (including 5 law degrees), to my experience as a lawyer on four continents to better lives and serve others while increasing my own vision of client needs' and legal services at large.

Starting out with each client then becomes a fascinating amalgam of opportunity and possibility for both the lawyer and her clients. My current situation of representing Madoff investors is no exception. Each investor is someone who I represent, not just as a lawyer, but as an advocate. I believe in recovery as a just cause because I know the context and the very different situations in which they find themselves. In the representation of businesses, there is much more advisory work relating to positioning of the product or service so that it optimally serves the community(ies) of users. As outside general counsel one becomes an integral part of the thinking machine of the company and its growth, be it through preventative compliance related work, or through business acumen and imagination, or through an acquisition strategy, or even litigation with appropriate ethical guidelines in play. As a litigator, the lawyer is much more specifically in a representative capacity for the client with regard to a particular issue. In some very famous cases, we have seen that lawyers can come to defend or struggle on behalf of countries, and entire communities in a role as advocate because a just solution cannot be found in a courtroom only. The powers that be and decide the fate of that community are larger and more politically based.

I was talking about beginnings and lawyering... about possibility and opportunity and the ability to use all one has in terms of resources. Now there is nothing wrong with going into the law because you want to do a specific job well. But I would ask everyone, not just lawyers to do what they are most passionate about and what most ignites them to use all of their capacities. Without passion, no matter what you are doing, you will not be awake doing it. That may be the most important thing of all... being awake on the job. I think right now clients have been paying lawyers and accountants that have been asleep at the job. Look around you as to what has happened around us with the financial crisis. This is of course not deliberate, it is systemic and systematic, a regurgitated impact of specialized complication, a kind of legal and legalized derivatives from which law firm machines can also be sustained just like so many other machines they must serve. Note this is a generalized comment without specific instances and take it for what it is. But I ask us all to think about how much sleeping our work requires us to do; and how little questioning our work requires of us.

Awakening to what it is you are doing can awaken you to what really needs to be done in new and different ways of your own creation. This requires actual input from you. You will keep using the ways you have been trained, almost by rote, to apply to the problem, but you may also open up to ways that a detective might by taking in every single relevant fact of which you are able to obtain knowledge. Then of course, you may not be the person most suited to attack the problem as you have now conceived it and may have to get help, and or refer the matter out, but you will be thinking on your feet based on present knowledge, fact and application of your training... that in itself is an adventure!

GDK

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