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It’s always interesting to read or hear what people say when describing the attributes of the “best lawyers.” The legal business seems to have gotten more self-focused over the past few years, especially with the advent of the “super-lawyer” lists that have become ubiquitous. Soon we will be opening a magazine to find a list of “Top 100 Left-Handed Lawyers With Hazel Eyes in the [Dallas/Ft. Worth] Metroplex.” But what really characterizes an outstanding attorney? It’s a question that matters to all companies that seek a high-quality in-house or outside counsel. When fishing for terms to describe an excellent lawyer, some use the word “conservative.” A good lawyer is a lawyer with a conservative view of the law who keeps his or her client out of trouble, right? The concept of conservatism goes a long way in the Lone Star State, where President George W. Bush won re-election with 61 percent of the popular vote. While a conservative stance toward a particular legal issue may be what some client companies want to hear from their in-house legal department or outside firms, it is not necessarily the stand-alone best advice. Business leaders often speak of the importance of knowing when and how to take risks as a key ingredient of their success. Shouldn’t great lawyers be the ones who can do the same? An in-house counsel or outside lawyer who can present a range of ideas and attendant risks, and who can help a client company fully assess those risks so that executives can make a well-informed business decision, ultimately provides the most value and the best service to the client. As history shows, the tension between conservative and non-conservative thought is nothing new. In 1860, Abraham Lincoln said in a speech in New York, “What is conservatism? Is it not adherence to the old and tried against the new and untried?” When in-house counsel picks up the telephone and calls outside counsel for advice on a critical issue, the goal may not be to hear a knee-jerk response focusing on the “old and tried” solutions to the problem presented. Instead, general counsel these days often look for their outside lawyers to “think outside the box” and to look for the “new and untried” solutions that may help them find their way out of a legal maze. Not all client companies engage in discussions with their lawyers about what type of advice they are seeking. But some do. When a client company tells a lawyer, “We want to be more aggressive,” some lawyers cringe. Fears of subsequent malpractice allegations, government investigations, Enron-like publicity and talk around town all may cause in-house and outside counsel to pull back when called upon to find a new solution to an old problem. In spite of these concerns, however, creative thinking can make an enormous business difference and must therefore be a goal of in-house lawyers and their outside counsel in every representation. It is important to emphasize the difference between “aggressive” and “foolish.” Client companies must watch out for in-house counsel and outside lawyers practicing without the requisite knowledge base to address a particular issue. Such lawyers may offer the appeal of being aggressive and optimistic, but they may not have the experience to identify and evaluate real risks and potential pitfalls that may result from their avant-garde strategy. An unexpected negative surprise down the road is unacceptable from the client company’s perspective, especially when it based the decision on aggressive advice given without appropriate warnings. GC AS EXPERT For the client company to make a well-informed decision, in-house and outside counsel should provide advice that turns the client into an expert on the legal issues presented. In his book “The Professional Service Firm 50,” Tom Peters suggests that making the client an integral part of every project team should produce the best results: “We are in the joint venture business. We and the client must engage in an adventure that is based on mutual trust and understanding.” By turning the client into an expert on the legal issues relevant to the particular situation, the client will be prepared to make the best business decision and rarely will question the advice that preceded the decision. With respect to specialty areas, in-house lawyers also can function most effectively when they team up with outside counsel to develop a more in-depth understanding of specific laws affecting their client. Many large firms sponsor regular seminars on various legal topics oriented toward transactional and litigation practices. The rising demand for these seminars over the past few years is indicative of the desire by in-house lawyers to understand more of the details on a variety of topics. A number of the large professional consulting firms (e.g., McKinsey and Bain & Co.) also have shifted their service approach to include client representatives as part of their in-house project teams. While in-house and outside counsel may feel a temptation to cling to their specialized knowledge, a collaborative approach often produces the best result. Peters argues that to do otherwise is “morally bankrupt” and that all of today’s professional secrets should be shared with clients to provide the best and most comprehensive advice and client service. In 1935, Mark Twain wrote in his journal, “The radical invents the views. When he has worn them out the conservative adopts them.” In today’s competitive legal market, lawyers cannot afford to be too conservative. A lawyer who rests on traditional thought and espouses only risk-free well-established views offers only part of the picture to his or her client. That is not to say that lawyers should seek to be “radical” in their legal advice; but perhaps a more proactive approach would suffice. By partnering in this effort, in-house and outside counsel can provide their client with a full range of potential solutions and possible risks so that executives can make a well-informed business decision. Although a “conservative” solution may ultimately be chosen, a client making a well-reasoned business decision will appreciate having a choice in these matters, together with the benefits of an expanded knowledge base. Taylor H. Wilson is a partner in the corporate section of Haynes and Boone in Dallas.

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