Giving Advice
Even if you have experience and a client comes to you with a transaction, a good corporate lawyer must be able to effectively communicate advice.
The best advice I have ever received (and ever given) is to be clear and confident in the advice you give a client. Clients will feed on your confidence; it will make you a more effective counselor. The best way to be confident and, therefore, give good advice, is to understand the issues and your client’s business and objectives completely. To really understand the issues or potential issues, as well as your clients’ real objectives, you must first be able to solicit relevant information. Clients will not necessarily be able to identify the issues, but they often have most of the relevant information. Therefore, you need to be prepared. You need to understand the transaction, the law and the precedent, which takes time. So make certain you have budgeted enough time up-front (in advance of speaking with your client, the other side, the investment bankers, and, in some cases, other lawyers on your team) to understand what is going on and where there may be potential issues. Preparation, however, is also a function of experience: The more deals you have done, the more likely you have already confronted a particular issue or will know where to look for potential issues.
Once you identify and consider the actual and potential issues, you need to strike a balance between delivering a menu of options to your client and making decisions for the client – neither of which is useful to clients. Given our knowledge of the law and experience with comparable situations – again, this is why real experience in our practice areas is critical – we should advise clients of the issues and explain the risks, rewards and costs of proceeding with one or more alternatives. We also should be in a position to advise clients regarding what their peers have done or are doing and how we have come out on the issue in other comparable situations. Although clients ultimately make the decision on how to proceed, a good corporate lawyer should be prepared to make a recommendation and indicate what is typical or customary. Clients, even those who are experienced, generally are not equipped to choose among several options. This is where our experience in advising clients in comparable situations is useful: It helps you decide how much guidance your client needs and also helps give you the confidence you need to deliver good advice. We add value not only in the advice we ultimately give, but also in how we deliver the advice. The process can often be as important as the substance.