I don't want a lawyer to tell me what I cannot do; I hire him to tell me how to do what I want to do. "
With these words, J. Pierpont Morgan captured the essence of what bankers have for decades wanted from lawyers.
Given the high level of expectations his words embody, it should not be surprising that these expectations have been repeatedly stymied over the years, for even the finest lawyers cannot make laws and regulations disappear nor alter their provisions at will.
Yet Morgan's statement continues to represent the core of what bankers desire from lawyers. The principal source of bankers' antipathy is lawyers' repeated confounding -- with each proviso or negative opinion or excessive bill -- of bankers' expectations.
What to Expect
My purpose is to suggest what bankers can reasonably expect from lawyers and what steps bankers can take to use lawyers' services more effectively. The intended result is to increase the value and satisfaction bankers derive from their interactions with lawyers.
If bankers were asked to make a list of the major shortcomings of lawyers, including both outside counsel and in-house lawyers, the list could be expected to include the following:
* Lawyers do not speak in terms business people can readily understand. Their written and spoken words are laced with Latin, 17th-century English, and phrases heard only in law school.
* Lawyers are not sufficiently familiar with or accommodating of business initiatives and objectives, resulting in inadequate anticipation of their corporate clients' needs over both the short and long term.
* Lawyers charge too much for the services they deliver.
* Lawyers are too self-focused, giving them a peculiarly limited perception of the world, especially the business world.
* Lawyers take too long to address critical issues, and ultimately address them in ways that tend to obfuscate rather than clarify the solutions.
* Lawyers cannot produce realistic budgets (especially to fit alternative scenarios), manage them properly, or adhere to them.
* Lawyers' contribution to corporate operations and profits is too often difficult to measure, and lawyers take insufficient initiative in suggesting either what tools can be used to improve such measurements or what additional ways lawyers could contribute revenue or better support banks' revenue-producing units.
* When faced with a legal obstacle to business objectives, lawyers too often confine themselves to explaining in excess detail why something cannot be done without also (as J. P. Morgan would have demanded) suggesting solutions or offering alternatives that might make the banker's objective possible.
* Lawyers are too hard to control, both in terms of preventing unnecessary work (thus excessive billings) and determining where legal services and related costs can be trimmed.
A Few Proposals
These shortcomings leave bankers with only two basic choices: accept as inevitable that dealings with lawyers will frequently be an unsatisfactory and frustrating experience; or take the necessary steps to obtain more effective and economical legal services.
It is surprising, given the positive impact that better use of legal services can have on profitability and problem-solving, how many bankers adopt the former response.
In subsequent articles, I will explore how bankers might make better use of lawyers, communicate more effectively with them, and get more satisfactory responses and results from them.
For those who cannot wait, here are some immediate suggestions:
* Reduce the need for lawyers' services by determining what steps the bank can take internally to prevent problems from arising.
Areas for prime consideration include customer contact units and compliance-sensitive operations. Bankers should make sure that units most vulnerable to legal problems have up-to-date policies and procedures and staffs that are appropriately trained in them.
* Regularly -- monthly, bimonthly, or at most quarterly -- conduct reviews of the legal expenses incurred by each unit of the bank.
* Have the bank's principal lawyers, whether external or internal, periodically report to management on what steps can be taken to minimize the need for their services on the matters on which they spend the bulk of their time, and how their services can be used or provided more effectively so as to reduce overall expense.
* Involve lawyers early in the planning stages for new products and services and proposed business activities. This will greatly reduce the need for costly rewrites and changes further in the development stage.
* Develop a more realistic set of expectations than evinced by J. P. Morgan of what can be required of lawyers, and communicate these expectations to the lawyers that serve the bank.
The latter point, of course, raises one of the principal issues bankers have in dealing with lawyers: specifically, just what can bankers reasonably and legitimately request of lawyers? In my view, bankers can rightfully demand that lawyers:
* Understand that their principal function is to further the interests of their client, the bank, and the lawyers' own interests must be subsumed accordingly.
* Gain a thorough understanding of how the client bank operates. This means going beyond a generic understanding of how banks function to gain an understanding of what are the particular client's needs and objectives, in both the legal and business sense.
* Always emphasize the practice of preventive law. This requires the bank's lawyers to learn where possible problem areas exist within the bank's operations and to suggest solutions.
* Communicate using terms that bank clients understand, rather than using legalese. Ideally, lawyers should eliminate the use of legalese in all their communications and documents, whether or not these involve a bank client.
* Keep the bank abreast of current developments of relevance to the bank's operations, preferably in a way that provides value as opposed to in a manner that is calculated principally to generate further business for the lawyers.
* Attend key management and staff meetings at which important business plans and decisions are discussed. This is particularly important for lawyers who are members of a bank's in-house legal department.
* Always explain clearly and in terms that arc relevant to a bank's decision-makers the basis for any legal conclusion they have reached, and the risks of any transaction as to which the lawyers' advice has been requested.
* Communicate regularly on the progress and cost of significant matters, including advising whether alternative courses of action may better serve the bank (on a cost or other basis).
* Decline to make decisions that the bank's managers-should be making, instead recognizing and communicating when additional input from the bank is appropriate or desirable.
* Will, when a proposed bank activity raises legal issues, seek solutions that permit the bank to proceed with the substance of the activity rather than merely stating why the specific proposal is not permissible and leaving it to bank management to try to come up with another way of accomplishing the objective.
* Hold to the highest standards of integrity. A lawyer who winks" at or ignores a seemingly minor transgression to please the bank manager who hired him or her does the bank itself a tremendous disservice.
* Identify to the bank any situation in which an interest of the lawyers affects the lawyers' ability to respond in the manner most favorable to the bank.
For example, a law firm's concern with possible malpractice liability might lead the firm to be more conservative in rendering an opinion than is necessary, thereby depriving the bank of the best legal advice because of the firm's own pecuniary interest.
* Always identify, as to any significant matter, alternative courses of action and alternative possible scenarios, accompanied by applicable budgets.
* Use the minimal resources needed to provide legal services properly and well, and refrain from spending the bank's money without prior (and periodic, where appropriate) approval.
Lawyers should exercise the same care with a bank's money that they would with their own.