The Role of the Lawyer in Business

“When in doubt, make a decision anyway. Making no decision can be catastrophic, while even a bad decision creates movement, action and can be corrected upon.” General Norman Schwarzkopf

Too often, the business attorney is a hindrance to progress, an obstacle standing in the way of the goals of the business. I’ve even heard people joke that anyone could forge a resume and pass as an attorney merely by learning to say, “No, you can’t do that.” Considering the high fees and salaries lawyers often command, surely this should not be the role of the lawyer.

The Business Attorney

It is no secret that attorneys are risk adverse. The nature of legal training is such that it peddles in the mitigation of risk. Unfortunately, however, many business attorneys translate the goal of risk mitigation into risk elimination, a fanciful goal in the world of business.

This inevitably creates a natural conflict between the legal department and management. Risk is an inherent part of entrepreneurship. A successful entrepreneur promotes societal progress and creates jobs for those in need. Attorneys should never stand in the way of this, particularly not to perpetuate a self-imposed culture of cowardice.

The business attorney—that is, the good business attorney—needs to understand what it means to own a business with all the associated risks. The business attorney may offer risk-mitigation strategies by suggesting alternative routes to the goals established by the entrepreneur, but the attorney should not be standing as the gatekeeper to a closed path, hindering progress through fear-inducing examinations.

The Role of the Lawyer in Business

Lawyers are often stereotyped as the creators of doubt, promoters of paralysis by analysis. The litigious society in which we now live has allowed the attorney to garner greater and greater influence in the decision-making process of the business. This, however, is not the proper role of the lawyer in business.

The role of the lawyer in business is to understand where the business owner wants to go and help him or her get there. Too often upon hearing where management wants to go, the attorney simply responds with an explanation as to why they can’t get there. Too often the business attorney is a liability, not the asset he or she should be.

It is important for both entrepreneurs and lawyers to understand that the role of the lawyer is not to be the decision-maker. Attorneys advise the decision makers, who may take or ignore the advice offered. Regrettably, an arrogance has crept into the ranks of business attorneys, as if we control the keys to the business.

If your attorney is standing in the way of your business’s success, it may be time to hire a new attorney.

Never Say No?

Sometimes a business attorney has to say, “You can’t do that,” but these instances should be limited to advice on very specific decisions. They should rarely, if ever, extend into overarching business strategies. So, yes, if human resources comes to the attorney to say the CEO wants to fire someone for becoming pregnant, the attorney has to say, “You can’t legally do that.” The same would be true if a manager wants to lock workers in the business overnight to ensure they do their jobs or refuses to hire members of the armed forces because of potential deployments and disruptions in work schedules.

Except in matters of specifically illegal behavior, however, the goal of the attorney should be to get to yes. If you come to your attorney for legal advice about a course of action, the attorney should not simply say “No.”

If your desired course of action would expose your business to unnecessary risk, the attorney should move beyond “No,” instead helping you to find the least risky way to achieve your goal without undermining your overarching objectives. The attorney can suggest routes, but the entrepreneur should determine the destination.