Communication with clients and opposing counsel is at the heart of professionalism for the business lawyer, and arguably, for trial lawyers as well. While most of the professionalism literature (e.g., the Professionalism Aspirations approved by the Minnesota Supreme Court early in 2001) has focused on trial lawyers, professionalism -- with a somewhat different twist -- is also a matter of concern to business lawyers. In an earlier essay on this subject ("Professionalism and the Business Lawyer," Bench & Bar, September 2002), I urged that business lawyers focus on communicating better with clients and opposing counsel and noted some of the obstacles that lawyers face. Trends in technology and in society now pose further challenges to professionalism among lawyers generally. Consider:

Current practices push lawyers further from their clients and lawyers further from their colleagues, opposing counsel or others. While email, electronic documents, and other technologies are used by trial lawyers, they at least take depositions, argue motions, even go to trial, all involving some form of direct, interpersonal dialogue. But ask business lawyers about the numerous times -- on even large, important matters -- they never met the other side and never met face-to-face with the client.

My fear is that these developments in technology have altered conduct, resulting in a decrease in professionalism and ultimately to increased dissatisfaction with the practice of law. By identifying current practices perhaps some of us will pause before repeating these practices and determine whether there are better alternatives.

Let's take a fairly routine transaction, say review of a distribution agreement. The client receives the distributor's standard form in electronic form and forwards it, asking the lawyer to contact the other side's lawyer and offer comments. The client never offers a business objective. The lawyer, desiring to zealously represent the client, pulls out an oppressive form that the lawyer has used before, adds all of the clauses that could conceivably apply to this situation and forwards it to the distributor's counsel, just to get things going. The distributor's counsel replies in kind, taking a few suggestions and rejecting the rest. And so the fun begins. No one has actually talked to anyone else, no one has attempted to learn anything about the underlying relationship, and no one has formulated objectives for the exercise.

To me, this appears not to be desirable conduct. Yet I fear that this noncommunication is happening with increasing frequency. Perhaps younger lawyers have learned bad conduct. Perhaps there are other factors at work. Here are some observations:

Isolation and Advocacy

How often do we receive those endless email chains where no one has talked to anyone else, where the circle keeps getting larger, where no one is willing to make a decision or offer any concrete guidance?

We are social animals. Dialogue is important to us. Why doesn't someone pick up the phone and break the chain? Is it the press of time? Shyness? Why is there no hesitation about carrying on inane telephone conversations in public places on cell phones but time is not taken to provide simple direction or clarification on more important matters? Why can't the giver of the instructions call before sending the email?

Sure, it's more efficient. Missed calls and endless voicemails do not substitute for dialogue. It surely must be true that for the lawyer with a long history of representation the direction from the client is implicit. But that's not the context in which I see all of this arising.

We are told that we are to be zealous advocates. It's right there in the professional rules. But for a business lawyer, it doesn't necessarily achieve client objectives. Unlike advocates who battle in front of a tribunal, business parties simply negotiate between themselves -- the objective is to bridge gaps, not to impress a judge with skillful arguments.

Yet zealous argument is often what happens. Instead of helping the client understand the implications of a particular draft, the counterprovisions come out; there is no discussion at all with the client. Too often we zealously protect a client against doing a deal without discussion with the client. Is it because we, as lawyers, truly believe that bringing out the big guns is the best way to protect the client? Is it just more interesting? Do we fear a malpractice claim will issue if we fail to advance every conceivable counterpoint? Is it easier to communicate to the other side than our own client? Ultimately our role should be bridging gaps, not deepening the chasm.

Instant Access; Increased Isolation

Go into a meeting of lawyers -- cell phones are ringing, thumbs are atwitter with Blackberries. Service demands that we are always accessible to our clients. But are we closer to and better understand our clients because of all of this? Or are the comments more instantaneous analysis and an avoidance of getting into and resolving issues? Aren't we actually more isolated through technology? Isn't the result more often less meaningful, rather than more meaningful dialogue?

We have the capacity to infinitely manipulate documents. We can add text, whether from scratch or from our precedent files, easily change clauses, redline the changes against prior drafts. We can add nuance, shading. But does it promote understanding or our client's interests? Are our clients better off because of lengthy documents they cannot understand? Would it be better to make sure there is fundamental agreement on the important terms or to inject a dozen other trivial issues?

Wouldn't we be better off if time were spent on understanding what the law provides rather than in engaging in the battle of the electronic forms? Finely articulating the essence of the business deal at the heart of a matter may be worth far more than a dozen pages of boilerplate.

Sources of Dissatisfaction

My impression is that the harder we try to serve clients the greater our dissatisfaction. While we all would deny that we just fill out forms, in effect scriveners is what we have become. There are no forms of course -- no one just fills in the blanks. Every paragraph must be adjusted. Life has become complicated because it is not possible to do business by completing forms. Clients are forced to rely on business lawyers for the preparation of things they believe to be routine.

In the past, lawyers could easily explain the effects of documents. But clients have often given up trying to understand what the legal effect of a document might be. Instead, the handoff is made to "the lawyer" to do the necessary, as though doing a deal is merely filling in a form. Lawyers seem to be consulted less and less about "big picture" items. Perhaps we should be elated by this development, but I believe it widens the gap with our clients.

It is impossible to uncouple business and legal objectives. Crafting a legal document to reflect a transaction is a matter of collaboration, not a hand-off. Despite the enormous complications of modern commerce, our job is to counsel our clients.

Technology and the Business Lawyer

This is not meant as an attack on technology. Technology allows superior service and outstanding quality. But we need to take these tools beyond instant gratification and use them to assure that we are in fact satisfying the client's objectives.

Doing better requires that we recognize that technology is a superb means of transmission but a poor means of communication. Let's begin to avoid the quick and easy. Most emails are best handled through an email response -- but not all. Professionalism standards are intended to be aspirational. We can all do better. Take the opportunity to break the technology crutch today.

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