What the Client Wants and Needs
June 28, 2009
What the Client Wants and Needs
When I think of the fundamental role of the corporate lawyer, I start with the concept of helping the client achieve its objectives. I remember one of my law school professors at Harvard, Professor Casner, who was a very confident – some would say cocky – guy who strutted around the stage as he was lecturing to us. At the end of the year, he said, “There’s always a way to achieve the result that your client wants. It may not be direct, it may not be obvious, and if you’re not smart enough to figure it out, give me a call – my consulting rates are reasonable.” He was only half joking. The essence of what he said was true: There almost always is a way to achieve the desired result. The challenge is to find it. Meeting that challenge is the way good corporate lawyers can be useful to their clients, adding value and playing a valuable role in society.
After the client tells you what it wants, you must determine what the client really needs, which often is not the same as what it says it wants. There may be a very different way of achieving the client’s objectives. Let me give you an example. One of the first projects I had as a young lawyer was to help an insurance company create what was then a new product called a unit investment trust variable annuity. This product would be both an insurance policy and a security invested in mutual funds. No one had used this approach before, and we had to develop a new framework that involved coordinating securities and investment company regulation by the SEC, securities and broker-dealer regulation by 50 state securities departments, insurance regulation by 50 state insurance departments and complex IRS tax provisions. We needed to help our insurance company client understand how it could change its long-standing insurance documents to comply with all the diverse regulatory requirements, many of which appeared on the surface to be inconsistent, if not in conflict. At first, the client’s reaction was that there was no way it could change any of its longstanding insurance policy provisions, assuming that there must be an insurance law requirement or other good reason for them. We challenged those assumptions, and together with our client, we analyzed each of those provisions and sorted out what was really important, what could be changed to achieve regulatory compliance, and what could not be changed and required further negotiation with the regulators. At the end of the process, we created a whole new regulatory framework and a radically changed set of insurance policies for the company. I was surprised at how many things that the client initially said could not be changed ultimately, after further probing, could in fact be changed . . . at least changed enough to satisfy the regulators without compromising the client’s objectives.
Figuring out what the client needs is an important proactive piece of the corporate lawyer’s role. To do that you must spend a lot of time learning about and understanding the client’s business – understanding the industry the client operates in; understanding the business environment in which it operates (for instance, for a client that sells its products to retailers, understanding what is happening in the retail economy in the U.S., or, if they operate internationally, the retail economy in the major countries where they operate around the world); and understanding what’s happening with their competitors and customers. I use the library and the Internet to find information about clients, their peer group, their competitors and their customers, and what’s happening in the industry and the economy, just so I can better understand what’s going on with my clients. Then I can have an intelligent conversation with them that’s broader than just what they can and cannot do legally, so I can do a better job of helping them achieve their