What is the role of a lawyer today?
My blog earlier this week drew an interesting response from Ken Adams and his co-author in a recent article offering “Top Ten Tips in Drafting & Negotiating International Contracts“. The ensuing debate seems to me to encapsulate the dilemma facing the legal community today. Essentially, are they narrow (but important) specialists in law, or should they be applying their knowledge of law within a much broader remit of ‘business advisor’?
The former role can be problematic – and I was pointing to those problems in my commentary on the original article. Essentially, good drafting or negotiation is driven by overall context. If you do not consider the broader purpose of the contract, it is probable that the resulting terms will either be inappropriate or inadequate. My view is that the suggested ‘top tips’ run into precisely this issue because they are being made without reference to context – and the context will in many cases change the priorities or choices of what or how to draft and negotiate.
Much of the work undertaken at IACCM aims to provide an increasingly factual base for decision making. We seek to reduce the extent of ‘mystery’ and ‘opinion’ and move towards positions that are based on solid research data, experience and judgment. It is in that context that I produced my counter-view of the ‘top tips’ for any lawyer drafting and negotiating an international contract. Essentially, their work must begin by understanding the context and establishing the risks. Only then can they decide the issues around use of language, use of local counsel, choice of law etc.
There are many examples to illustrate the importance of lawyers engaging with the business issues. For instance, in my blog, I highlight the challenge of getting paid. This is fundamental to an organization’s survival and is frequently an issue in international contracts. If the lawyer does not understand the practices and norms of their counter-party, they will struggle to draft and negotiate terms that bring security in this area – and potentially the rest of the contract becomes pretty much irrelevant. Similarly, anyone preparing an international contract must be aware of the regulatory environment in the country or countries involved. Ideally, they have developed personal expertise in key areas such as data protection, competition law and export regulations – but if not, they need to be aware of their ignorance and find a way to fill the gaps. Finally, what is the time-line for getting this contract completed and what is the budget available for its production? Understanding factors such as this are critical to the lawyer operating in the real world – and again will influence the way they set about their work, the terms they draft and the priorities they establish.
Without knowing these things, how can you begin to draft or negotiate anything?
As I highlighted in my original comments, the ‘top tips’ article raises important considerations, but practical experience and research suggests that other items must come first. If lawyers are going to maintain status, they must become more effective in offering business advice. This is not a personal opinion; it reflects discussion with many lawyers – in-house, within law firms and at law schools. Indeed, it is a challenge that is common to all professional groups.
Ken Adams is a respected expert on the topic of contract style. I do not always agree with his pronouncements on this topic, but I defer to his expertise and fully expect him to challenge my rare ventures into this aspect of contracting. On this occasion, Ken went beyond style and into substance – an area where opinions start to give way to facts and processes, where what you are writing takes precedence over how you write it. Because this area of substance is where so much of my work is done, I feel it is appropriate to suggest alternative priorities – and in doing so, have inevitably ventured into the debate I mentioned at the outset – ‘what is the role of a lawyer today?’