Article

Team Player

Your Company Lawyer should be a Strategic Partner, not a Hall Monitor

By Christopher R. Esseltine

December 2, 2014


Team Player

Your Company Lawyer should be a Strategic Partner, not a Hall Monitor

 

Everyone hates a lawyer until they need one. It’s a sentiment that rings true with many. But even when you need a lawyer, the attorney-client relationship can often be less than satisfying. In addition to paying legal fees that make you feel like you’re passing a kidney stone, clients can become frustrated with the incessant restrictions lawyers place on their clients’ business plans. With the seemingly endless regulations governing nearly every industry, it can become easy for lawyers to simply tell a client “You can’t do that.” But successful companies are successful precisely because they don’t like to hear the word “can’t.” They become annoyed and even distrustful of lawyers who appear to be tying one hand behind their backs, and then charging them handsomely for it.

A well-known political commentator once observed that the country is in such a mess because Congress is comprised mostly of lawyers, and lawyers are not trained to create, build, problem solve or think outside the box—they’re trained to tell you what you can’t do. While this isn’t true for all lawyers, it may be true for far too many. So how do companies overcome this frustrating challenge? The answer is simple: Make your attorney a strategic partner.

Employ a Can-Do Approach

This requires both sides to change their approaches a little. Companies need to realize that the attorney, whether in-house or outside counsel, is tasked with protecting the company. If a lawyer tells you no, there is a good reason for it. But lawyers need to break out of the “hall monitor” mode and realize that businesses exist to make money, not to observe regulations. A lawyer needs to use his intelligence and experience to not only protect the company but also to assist it in figuring out how to get something accomplished that initially appears unlawful or too risky. If the answer to the client’s question “Can we do this?,” turns out to be “No,” then the lawyer must follow up immediately where possible with the corollary: “But let’s try to figure out how we can do it.” This affirmative approach not only serves the client much better, but it also engenders the client’s deep trust and gratitude. The lawyer suddenly becomes a member of the team instead of the proverbial party pooper.

Focus on the End Goal

Consider two examples of how making a lawyer a strategic partner has worked so well. The marketing team of a large pharmaceutical company spent months developing a campaign to launch a newly developed drug. But to their dismay, the company’s lawyers decreed that the marketing approach violated regulatory standards and would result in potentially millions of dollars in fines. In short, the lawyers simply said: “You can’t do that.” But one junior attorney in the department took it upon herself to think outside the box and find a way to make the strategy work. With a little creative thinking and a few minor tweaks, she found a way to salvage the campaign. Moreover, she found a way to help patients who would benefit from the new drug, to make the company money, and to mend the fractured relationship between marketing and legal.

In another example, a startup IT company called its outside counsel to check on the appropriateness of a particular business strategy. Their only inquiry was whether or not they could get in legal trouble. Eager to help the fledgling company, the attorney asked more about the details of the plan and the thinking behind it. To his surprise, he was informed rather firmly by the clients that they just wanted a simple yes or no. Unfortunately, without any more information the answer was yes, they could get in legal trouble. But with the client’s best interest at heart, the attorney pushed back a little and finally got the clients to share their overall strategy. The attorney, who had significant experience with startups, not only suggested ways to comply with the law, but his suggestions actually improved the overall strategy by planning for contingencies the clients had not even contemplated. By allowing the lawyer to become a strategic partner, the company gained much more than they ever could have otherwise.

Better Together

A lawyer’s job is to zealously advocate for the client. This often requires more than simply providing a sterile legal analysis. It requires working with the client to find solutions and synergistically creating something that neither party could accomplish alone. Admittedly, sometimes the answer is simply no, and both parties need to accept that and move on. But most of the time, when a company expects and allows its attorney to be a strategic partner, and the attorney embraces that role, solutions can be found, and business moves forward. If, despite all the company’s best efforts, a lawyer refuses or simply is incapable of offering more than strict legal advice, perhaps it’s time to get a lawyer who can. 

Christopher R. Esseltine is a healthcare attorney at Holland & Hart LLP, with experience providing legal counsel to nearly every type of stakeholder in the industry.

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