"neither an idle nor a rhetorical one"

"Why does anybody hire transactional lawyers?"  That's the question posed by Stephen Bainbridge in this story at TCS Daily.  This seems to be his conclusion:

By selecting the most advantageous structure for a given transaction, and ensuring that courts and regulators will respect that choice, the transactional lawyer reduces the cost of complying with the law and allows the parties to keep more of their gains.

I think that's part of the role that transactional lawyers (of which I count myself one) play, but that is ultimately just a subset of our primary function: to ensure that the interests of our clients are protected.  Everything else flows from that.  Bainbridge provides the following quote:

In his book, The Terrible Truth About Lawyers, Mark H. McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that "it's the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement. Accordingly, I would say that the best way to deal with lawyers is not to deal with them at all."

That's certainly one approach.  But the truth is to be found in his item (1) and final statement, with the emphasis on "seemed like a perfectly workable arrangement".  Emphasis on the "seemed" - it the transactional lawyers job to assess the "perfectly workable arrangement" cooked up by their client(s) and determine whether it is in fact "perfectly workable".  Gently pointing out the elements that are not "perfectly workable" can appear to be "gumming up the works", but is more likely to be the lawyer doing their job.

Comments

[MarkCh]

The problem is that lawyers often don't seem to count bringing the deal to fruition as being among the interests of their clients. So instead of thinking, "this clause leaves a possibility of problems for you, so let's rewrite it as ..., which protects both parties and fits the spirit of the deal", they seem to tend to think "this clause leaves a possibility of problems for you, so let's rewrite it as ..., which is ironclad safe for you, and if it causes problems for the other guys, well, that's just too bad for them".

[Alan]

If you've seen as many homespun, back of a napkin, cut and pasted, internet precedent and "we've always used this one, I think my grandfather drafted it back in ought-6" agreements thrown together by managers and directors as I have, the need for a (competent) transactional lawyer is painfully obvious.