"I hired an attorney a couple of weeks ago to help me prepare and negotiate a couple of contracts for my business. He's done a good job so far, and his fees are fairly reasonable. But whenever I ask him for help with the business discussions and negotiations, he tells me that that's not his job. He says that I am ultimately responsible for negotiating the deal and that he cannot guarantee that the deal will work or even that I will be satisfied with his work. It seems to me that he's being a little too conservative and that he could be doing more for me. Am I right, or is this just the way lawyers work?"
Being a lawyer myself, I have to give you that most lawyerly of answers: It depends.
Generally, unless a lawyer has had a lot of experience with a particular business, trade or industry, he will not get involved in negotiating your business transactions. Though your lawyer can certainly give you a list of items that are normally negotiated in similar transactions — and will almost certainly tell you if the position you want to take (or the other side is taking) does not make economic sense or would create an unreasonable risk from a legal or tax perspective — he will not tell you what you should do.
Your lawyer's job in negotiating a business transaction is as follows:
—To draft the necessary contracts and other legal documents reflecting the business deal you have struck with the other side or review the contract the other side's lawyer has prepared to make sure it is fair and makes economic sense.
—To negotiate the contract language with the other side's attorney, to make sure the language accurately reflects the business deal the two of you have struck.
—To make sure you understand — if the language is one-sided, unfair or subject to multiple interpretations and the other side refuses to "correct" it — the legal, tax and other consequences of agreeing to accept that language in the contract.
If your lawyer is doing all of the above, then you really don't have grounds to complain. No lawyer (or indeed any service professional) will guarantee that you will be satisfied with the outcome of the deal. As to not guaranteeing you will be satisfied with his work, no lawyer can predict what a judge or jury would do when interpreting any contract. Even a perfectly drafted contract might not be enforced if a judge felt that doing so wouldn't be consistent with public policy or would set a bad legal precedent.
Also, if the information you give your lawyer isn't 100 percent accurate or complete, then the contract he drafts based on that information won't be 100 percent accurate or complete, either. As our friends in the computer business say, "garbage in, garbage out."
There are a couple of exceptions. Entertainment lawyers, for example, generally do get quite heavily involved in negotiating their clients' business dealings, sometimes even managing their clients' financial affairs. This is because many clients in the entertainment industry are artists who have little, if any, experience in business and could easily be cheated by unscrupulous people who do.
"I need a lawyer to help me negotiate a contract. Several people have referred me to this one lawyer in town who supposedly really knows his stuff, but the guy won't return my phone calls. The other side is threatening to walk from the deal if I don't sign off on the contract in the next couple of days. What can I do to get this lawyer's attention so I can meet the other side's deadline?"
The best thing you can do is forget about this lawyer and get some referrals to other lawyers in your community. Because you haven't established a client relationship with this lawyer, he is not legally or ethically obligated to return your telephone calls.
Though the better lawyers among us always try to return "new business" calls as promptly as we can, phone calls take time. Taking the time to return these calls, find out the nature of the client's problem and come up with a suitable referral to another lawyer can take valuable time out of a busy day — time for which we will not be paid. Generally, a lawyer has a responsibility to communicate with his existing clients before returning "new business" calls such as yours.
Also, keep in mind that the lawyer may have a relationship with the other side and cannot return your call for fear of getting involved in a conflict-of-interest situation. Unless you live in the tiniest of towns (heck, even tiny towns have at least five these days), with a little research and networking, you should be able to find an attorney who will be happy to return your call and give you the advice and assistance you need.
Cliff Ennico ([email protected]) is a syndicated columnist, author and former host of the PBS television series "Money Hunt." This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state. To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our webpage at www.creators.com.