One of the brightest legal minds that I ever had the pleasure of working for gave me some strong advice that I have carried with me throughout my career. He said, “Andrew, you need to advocate your client’s position, but you do not need to be adversarial about it”. I have carried this advice with me throughout my career and for the most part (i.e., 90% of the time) I have adhered to it. The reason being is in the transactional world (e.g., real estate transaction, business sales, etc), which is the primary practice of our law firm, the mutual goal is to get the deal done, while protecting our clients to the best of our ability.
The way I have found this to be the most effective is not looking at everything as a win/lose situation. (We leave that to the litigation attorneys, and even then, more often than not, it is not so cut and dry). In order to do this you sometimes need to be creative, and you need to understand each of the parties concerns. While it is true that there are times that things just cannot be worked out, more often than not they can be. For example, take a sale contingency (making a purchase contract contingent upon the buyer selling his/her current home). A buyer would want a sale contingency because he/she may not have the financial resources to move forward with its purchase if he/she doesn’t sell their home (e.g., the buyer may have been counting on that money to pay monies in excess of the mortgage at closing, or the buyer may not be financially able to carry two (2) properties at once). A seller does not want the contingency because he/she doesn’t want to keep the property off the market for sixty (60) days only to have the deal fall-through because the buyer couldn’t sell his/her home. An adversary would explain his/her reasons and say “take it or leave it”. An advocate would explain his/her reasons and then try and find a solution if possible (e.g., allow the sale contingency for thirty (30) days. This way the buyer will realistically know if he/she will sell his/her home prior to the closing or shortly thereafter, and if he/she cannot the seller will have only lost thirty (30) days).
Again in transactional law it is about trying to get the deal done, while protecting each parties’ respective interests to the best extent possible. It should never be about trying to “out-lawyer” the other attorney, as it serves very little purpose other than inflating that attorney’s ego. Additionally, many deals die as a result of the same. That is not to say that an attorney should not advocate for his/her client to the best of his/her ability or to stay in a bad deal. Quite the contrary an attorney has an ethical obligation to represent his/her client to the best of his/her ability. However, part of doing so is to explore all possible solutions in the context of the law and ethics to see if a deal can be reached or save.
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