Reprinted with Permission from IN-HOUSE PRACTICE & MANAGEMENT FOR THE CORPORATE LAW DEPARTMENT, Vol. 4, Issue 4 (April 2000) published by Altman Weil Publications, Inc. Tele: 610-359-9900 Altman Weil Publications
One of the most poignant memories I have as a corporate lawyer is, unfortunately, also one of the most unpleasant.
I was a senior associate in a large Wall Street firm in New York City, working on a small transaction for one of the premiere investment banking firms. My client was a young .hotshot. M.B.A. in his mid-20's who already affected the look popularized by Michael Douglas in the 1985 movie Wall Street . slicked back hair, Cole Haas loafers, thousand dollar suit, cufflinks, monogrammed shirt and a pocket square (that.s the little handkerchief you put in the breast pocket of your suit jacket).
My relationship with the client had been relatively smooth, but as I read a draft of the client.s term sheet for the transaction, I noticed a provision that would create a huge tax liability for the investment banking firm. Fortunately, I knew from experience, there was a simple fix to avoid the problem. I called the client, pointed out the problem to him, and suggested the simple solution that would avoid the tax liability while still preserving the economics of the transaction. I expected a .thank you..What I got was quite different.
.Wait a minute,. he said, and as he put the phone down I could hear him closing his office door. I will never, ever forget, as long as I live, the words he spoke when he got back on the phone:
.Look here, Ennico. I like you. You seem like a nice guy. But there.s one thing you.ve got to get straight inside your head if you and your firm want to continue working for this company. I do not pay you for your *&&^^%% advice. I do not pay you to *&&^^% think. I do not pay you to *&&^^%%% second guess the way we do things. The only thing I pay you lawyers for is your *&&&^%$ legal documents. When we give you a deal to do, all we want to see is your *&%$# documents, when we want them, within the budget we establish for you. That.s it. Am I getting through to you, or does my boss have to call your partner over there?.
His response, needless to say, took me completely my surprise.I muttered a reply that was something like .okay, message received,. and our conversation ended pleasantly enough. The client was an important one, and I wasn.t about to start a fight with a junior officer. I knew the partner in charge would back me up. But for a few minutes after hanging up the phone, I couldn.t stop shaking. I was angrier than I had ever before been in my professional career . sheer, naked hate was welling up from the nether regions of my Mediterranean soul. My secretary later told me when I left the office to get a drink of water and a Tylenol to calm down, my face was actually purple.
All my life I had wanted to be a corporate lawyer . a strategic adviser to the captains of American industry, a mentor and expert whose advice could move boardrooms and influence what people read in The Wall Street Journal every day . and this guy was telling me that all I was, and could ever hope to be, was a wordsmith, a draftsman, a scrivener, a glorified contracts administrator.
Yes, of course I spoke to the partner about that conversation, and on his suggestion I wrote a memorandum to the file explaining that the client proceeded against our firm.s advice. I don.t know if the partner ever spoke to the client, or the client.s boss, and I don.t remember how the transaction came out. But that conversation will stay with me for the rest of my professional career. Every time I have experienced difficulty with a client . whether as inhouse or outside counsel . I can almost always trace it back to that conversation, and that young investment banker.s opinion of the value we corporate lawyers add to their world. He is far from alone in his opinion.
I have come up with a handy phrase to describe the way many business people look at their corporate lawyers. If you ever want to find success and satisfaction in your career as a business lawyer, you will have to learn how to deal with .D.O.D.. syndrome, because I know of very few organizations where it is totally absent. Whenever you greet your clients each morning in the elevator or coffee room, I guarantee that at least one of them is thinking, .oh, good, Bartleby the Scrivener is here. I need to speak to him about a form Whatever agreement I need next week..
While drafting and negotiating legal contracts is a key part of the in-house counsel.s work, none of us went to law school to become a draftsperson or wordsmith. While gaining a reputation as a brilliant legal draftsperson may be comforting in the short run, there is a real downside in the long run if drafting ability is the only positive thing anyone can talk about when they talk about you. Great draftspeople seldom make General Counsel (or, for that matter, partner), and even if they do, no one ever erects a statue to their memory.
But there is a much bigger reason to avoid D.O.D. syndrome. You have probably figured out by now that your biggest long-term competitor is not the staff attorney down the hall, or the outside law firm that has figured out how to manage its costs. Rather, it is that little beige-colored box that sits on your desk. Good quality legal forms are increasingly becoming available on the Internet, and software programs are being developed (if they are not already here) that will enable nonlawyers to customize those forms. Sooner or later, technology will enable business people to prepare and draft contracts and other legal documents without the assistance of lawyers. It is only a matter of time. No human being can possibly compete long-term with a computer in delivering a standardized, commodity product like a contract or legal document.
Yet, too many in-house counsel fall into the D.O.D. trap, by taking on drafting assignments that really should be performed by clerical personnel, or referred to outside counsel. Once the perception is created that you can produce .Documents on Demand. on a regular basis, be assured . . . that is all anyone will ever ask you to do.
Here are some tips for avoiding .D.O.D.. syndrome before it swamps your legal career, makes you miserable, and sets you up for premature obsolescence.
Get Out of the Drafting Business . . . Today.
The surest way to avoid D.O.D. syndrome is .never let them see you draft.. By sending a strong signal that drafting documents is not why you were hired by the company, you force your clients to look at you in a different light, one that you will be only too willing to shape. If you find you are being given routine contracts to review on a regular basis, suggest to your client something like the following: .you know, in my experience most companies of this size have a contracts administration staff to take care of day to day contracts like these. I.m not sure it really makes sense to have someone at my level marking up lines on printed form contracts. Why don.t we discuss a budget for two or three people whom I.ll be happy to train? That way I.ll only be needed when a question comes up that the administrators have never handled before..
If, on the other hand, you are being given contracts that are .mission critical. to the company.s success, these almost always should be referred to outside counsel. That way you have an opportunity to show your clients how well you manage costs and produce a desirable outcome, without being .tainted. if the outside law firm screws up the job, and without being responsible for every common, semicolon and proviso of a hundred page agreement. Solicit a proposal an outside law firm to prepare and negotiate certain types of recurring contracts for a fixed fee or discounted rate, and then offer their .proposal. to senior management as a solution.
Find Ways to Get Close to Senior Management.
D.O.D. syndrome usually begins when an in-house lawyer has failed to achieve a close rapport with the key players on his company.s organizational chart. This is not .office politics,. but simple human nature. If I perceive someone as my equal . a colleague rather than a subordinate . I am highly unlikely to give him work to do that is beneath his or her dignity. On the contrary, I am more likely to seek his or her advice in finding ways to get the .scut work. done that we BOTH hate doing.
Make sure that the key executives in your company see you, on a regular basis, in roles which preclude D.O.D. status. If you are attending every meeting of the Board of Directors and the key committees (particularly the Compensation Committee, in which senior executives generally have the keenest interest), and are making positive contributions in those highly visible arenas, it will be difficult for senior management to see you as a .scrivener..
Don.t forget your people skills here. When you have lunch in the company cafeteria, be sure to sit with the key players on the management team. Let them know you consider yourself one of them, without being arrogant about it (more about that later). Learn as much as you can about the company, its business, and the industry in which it operates, and don.t be afraid to engage in discussions with key executives that go beyond purely legal matters. Share as many hobbies and extracurricular activities with these people as you can (if they play golf, learn golf), and be sure to be conversant on the topics (whether or not business related) that they care the most about. Demonstrate a passionate commitment to the organization.s goals and corporate culture . don.t ever be the .odd person out.. If everyone wears jeans and teeshirts, leave the Brooks Brothers suit in the closet.
Become the .Grey Eminence..
The great French king Louis XIV had a trusted advisor . a Capuchin monk named Father Joseph whom the king had befriended as a young man. While the two men had little in common, and of course were at opposite ends of the social pyramid of French society, the Sun King had a great deal of respect for the advice which Father Joseph gratuitously offered during sessions at court . . . always behind closed doors, and with great deference to the King.s unique status. As Louis. reign progressed, he began sending Father Joseph on key diplomatic missions overseas, to the point that when foreign rulers and their advisers saw the grey-cowled monk with the prematurely silver hair stepping out a coach bearing the arms of the Kings of France, they knew that King Louis. .eminence gris., or .grey eminence,. had arrived, and that they might just as well be speaking to the King himself. Surely no one who knew anything about the French court would be so stupid as to ask Father Joseph, although technically a lowly monk, to wash their feet in exchange for alms.
To avoid D.O.D. syndrome, you must walk a tightrope. On the one hand, you must demonstrate to senior management that you have a keen business and legal mind, a strategic way of looking at problems, and consistently sound advice. On the other hand, you must be careful not to .preach. to management or show your intelligence overtly, lest you be perceived as a threat or as overstepping your bounds. If Father Joseph had rendered his advice to King Louis in open court, in front of the king.s ministers and mistresses, he probably would have been murdered in a dark alley somewhere in Paris. By offering his advice in private, with great deference and indirectly, so that the Sun King was led to believe he had come to the right conclusion on his own, Father Joseph earned himself an indispensable place in the French court, in European politics, and in world history.
When an in-house lawyer starts preaching to management and telling them how to do their jobs, the response very often comes in the form of repeated requests for D.O.D.
What If You Are Not General Counsel?
It is easier, of course, to avoid D.O.D. syndrome when you are sitting in the General Counsel.s chair, than when you are the number 33 lawyer in a 40 person legal department (are there any of those anymore?) Generally, many of the lower level positions in corporate legal departments involve a good deal of D.O.D., and it probably can.t be avoided entirely.
However, if you are in such a position there is no harm in letting the senior department lawyers know that drafting skills are only one small part of your resume. By following the advice offered above, only substituting .senior lawyers. for .senior management., you can start moving your legal career away from the drafting table. Also, make sure to befriend the up and coming managers who are more or less at your level in the company. They talk to their bosses every day, after all, and could probably use a .grey eminence. of their own. By making them look good, you can be sure they will remember you as they move up the corporate ladder.
What If You Are Already Up to Your Ears in D.O.D.?
In my experience, it is tough to fight your way out of a .scrivener. reputation once it has been earned. Often the only way out is to change jobs or seek a career that more closely combines business and legal activities, one that involves less legal documentation on a regular basis.
And when you apply for such a position, be sure to delete the phrase .drafting agreements. from your resume! Let your future employer know there.s a lot more to you than writer.s cramp!