The business lawyer as a counselor

by | Nov 29, 2016 | Law and Business

When I was in law school, I learned to apply legal precedents to individual cases (“fact patterns”) to best advocate for clients—we didn’t even brush on how to best give guidance or advice.
As we are known as “counselors at law,” I find this lack of educational focus somewhat surprising.
Just like any other counselor, licensed attorneys have an ethical responsibility to keep client communication confidential. In fact, our ethical responsibilities are often more stringent than any other type of counselor. We also need to provide impartial advice, many times on matters that are quite complex.
But while counselors usually go through years of training to build these skills, lawyers go through none.

Why is counseling an important aspect of lawyering?

In a matter of minutes, I can usually ascertain that a prospective client thinks they need A, B, or C. However, clients often “present” with one specific issue, but during the legal counseling process, we get to know the client and build a relationship based on:

  • Experience: Experienced attorneys have seen and worked on similar cases many times before—maybe this is why clients tend to like gray-haired attorneys (or in my case, attorneys with little hair).
  • Empathy: I have taken a product to market, built and managed a team, raised significant capital, and been responsible for the bottom line. Based on my successes and challenges, I can identify with my clients and spot potential landmines.
  • Expertise: Law is a very broad, complex field, which is why attorneys focus on specific areas of law and become experts in their specialties.

Let’s look at a hypothetical situation. A potential new client, Don, calls to ask about securing a trademark. Don views this as a problem with a simple solution: he wants to get a trademark, and he’s hiring an expert to help.
I could end the conversation, secure the mark, and send him a bill.
But if I dive deeper and get to know Don, I discover that although he thinks he developed the mark, his business partner, Shirley, thinks she developed the mark. His “simple” question about getting a trademark suddenly becomes a lot more complicated, and the ways in which I can advise and help Don must also change.
Should we run to court? Send a “nastygram”? Calm everyone down? Mediate? Dissolve the company? License or otherwise revenue-share?
Also, what are the other issues looming? Uncovered issues can go on and on: Does the company have the right capital structure to maintain a branding strategy, for example? Or should they spend their money on a marketer or other salesperson?
Does the mark have competition in the marketplace? Will they be rebranding soon and not need the mark? Is there a brand strategy in place, and if so, how does it relate to the business strategy?
I would do Don a disservice by simply addressing his perceived need—instead, I need to take on the role of a legal counselor.

How do lawyers counsel?

Lawyers should be able to provide excellent legal counseling by taking the time to get to know the client and their circumstances, using our own business experiences to empathize with them, and carefully studying the facts and the law.
In my firm’s case, in order to meet our internal quality-control standards of providing outstanding legal services, we emphasize the counseling aspect. To encourage and facilitate this process, we provide an initial free consult and give our clients the opportunity to chat with us without seeing billing entries.
Attorneys can’t, and shouldn’t, work on an island. We need to get to know the client and spend enough time learning about the situation in a non-judgmental and impartial manner so we can do our job. We’re a specific type of counselor, but a counselor nonetheless.


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