Ever since I served on the now defunct Professionalism Committee of the Hennepin County Bar Association, I have felt compelled to write about professionalism and the business lawyer. I began a couple of drafts and then stuck them away to age.

The Wrong Model

It has occurred to me recently that the initiatives to improve attorney professionalism have used the wrong model. In fact, my earlier drafts used the wrong model.

The focus of the current professionalism movement has primarily been on trial lawyers and the question of incivility, as demonstrated by the Professionalism Aspirations approved by the Minnesota Supreme Court in January 2001. The Aspirations seem almost wholly addressed to trial lawyers.
It is tempting to overlay these same characteristics on the business lawyer. The style of the "Rambo" negotiator and related aggravating practices, such as failure to adequately document negotiated points, should be avoided -- but those characteristics should not be central to assessing professionalism.

The Business Lawyer as Communicator

What business lawyers should concern themselves with and be judged on is communication, both with clients and with adversaries. A business lawyer should be a powerful negotiator and skillful draftsperson, but these are skills grounded in communication, both listening and talking.
In contrast to the litigation model, in which one side wins and the other loses (or at least faces that prospect), most business dealings are about relationships, such as that of supplier and customer, which are ongoing and evolving. In a business deal, the parties are seeking the relationship on their own appropriate terms. A lawyer who truly is a "deal killer" denies a fundamental client objective. Relationships are built and flourish on communication.

Understanding Client Objectives

Is the best negotiator the one who forces her client's position at all costs? Or are the best negotiators using the opportunity of negotiations to understand fully the needs of all parties to assist them in reaching resolution? The role of communications is central.

There are many functions the business lawyer performs other than negotiation. Implementing a business objective in compliance with governmental regulations is one. A benefits lawyer may assist a client with the operation of a health plan. While such plans are not negotiated with the federal government, the regulatory framework in which business objectives are achieved is established by the federal government. Understanding business objectives (as a listener) is crucial to meeting client objectives.

Even when the role of the lawyer is as scrivener, the lawyer as communicator must convey to the client the legal overtones, risks involved, and a sense of commercial realities while simultaneously assuring that the draft language embodies the perceived relationship.

A good communicator is able to extract information from others as well to explain the legal and commercial implications of written language, expressed objectives, and possible outcomes of the contemplated actions.

External Pressures

But I believe we often fall short of the mark. History may help explain why many lawyers today do not realize the full dimensions of their role as communicators. It may also explain part of the malaise that many of us feel as we have moved from counselors to document crankers.

When I began practicing law, mass copying was relatively new and fax machines were crude. Overnight delivery was possible but terribly expensive and used only in the rarest of circumstances. There were no word processors or PCs. There was no email.

The result: legal documents were short by necessity. To revise them required that they be retyped from scratch. (Although cut and paste copying was often used as an alternative, it was still a slow and constraining force). There was ample time to carefully revise those relatively short documents.

We can lament the pressures brought about by technology. We can observe that while legal documents are longer, they are not necessarily better. But that won't change anything.

Our clients, in a global economy, are under the same pressures that we face. Client demand for rapid production of a document and our need to be immediately responsive have combined to deepen the divide between client and lawyer, diminishing the lawyer's professional satisfaction and denying the client the best possible work product.

Too often, the documentation phase of a deal is relegated to "the lawyer" as though a complex document were merely a form to be filled out with the proper names. Sometimes, despite our best intentions, we take actions that lead us into this trap. In preparing documents, we often find little time to understand the client's objectives. Drafts are returned to the client in an email with no explanation of the implications or scenarios (worst case or otherwise) of the approaches taken in the document.

Overcoming the Obstacles

Perhaps it is pride in our profession that leads us to determine the content of documents and tactics of negotiation. Perhaps we are convinced that we are the experts, and based on our experience, we know best. Perhaps the length of legal documents leads us to conclude that they would be impossible to explain. Perhaps the time demands of clients simply don't permit an explanation
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Client service and professional satisfaction require that we do better.

Professionalism demands that we serve our clients through better communications. We have a lot to provide, as most business lawyers have a wealth of experience going far beyond the bounds of the law. Our training is wholly analytical. Most of us realize that understanding the business objectives is fundamental to drafting any legal document, but too we often jump to the tried and true with little discussion.

I suggest that if we have the strength to undertake this effort, our professional satisfaction will be enhanced as well.

Just as in a marriage, the most stable relationships depend upon a foundation of intimate knowledge. We as business lawyers can assist in assuring that that foundation is built, rather than merely cramming down our views. Further, to jump into the negotiating role or a legal positioning role without consultation with our client may in fact place us in the role as deal killer, frustrating rather than enhancing the client's position.

Break the Cycle

I know what you're thinking: "My client has stringent time demands, has ordered me to do 'the usual,' and has told me to keep the fees down. I'd love to spend a week talking to my client and preparing a tailored draft, but it's Friday afternoon and I've been told to have a draft on Monday morning.'"

How do we break this vicious cycle? The more that we merely email language back and forth to clients the more it seems we operate in parallel universes. The more we negotiate by incessant trading of drafts, rather than by face-to-face communications, the less opportunity we have to make ultimate client objectives understood. Two suggestions.

First, in working with clients, have some faith that client relationships may be enhanced by taking the time to communicate, even at the cost of turnaround time. That requires taking time to learn the business objectives the parties seek to accomplish and ultimately to educate the client that our role is not merely to fill in the blanks. It also requires that we take time to explain the draft that we have tailored specifically for our client for review. Despite the macho time demands they present, most clients are reasonable and understand that their interests are better served by taking the appropriate time.

Second, in creating a process that will result in negotiations, break the just-get-it-done-quickly cycle by setting up the relationship with opposing counsel for success. If opposing counsel is local, take time for a visit before the first draft of the document is presented. If opposing counsel is from afar, at least make a telephone call. Urge that at least the first negotiation session be face-to-face despite the inconvenience. Having met a person can take the edge off of the upcoming series of curt, inorganic emails.

Advancing CLIENT Interests

Yes, we should honor those portions of Professional Aspirations that are applicable. We should honor the Golden Rule. But that is not what professionalism is all about. In our role as business lawyers we should advance the interests of our clients. While avoiding incivility is a given, better communication is primary.

WILLIAM B. PAYNE is a partner in Dorsey & Whitney LLP and head of its M&A group. He has been practicing law since 1968.