One of the beauty of a lawyer is that the law is always evolving. The stereotype “curiosity killed the cat” is the opposite of what a good lawyer has to do to properly look after his clients. We are obliged to keep ourselves up to date on important changes. We also need to realize that we don’t know everything, and we need to constantly think about the issues that affect our customers, both the issues we are working on and the issues we will be working on in the future.
Examples are common in our practice. In my company we are working on a derived case with a non-auditing expert. The general rule is: if you have a testimony expert, the testimonial expert must be paid hourly and is entitled to pay regardless of the result. A conditional basis destroys the credibility of the testifying expert. In our situation, the non-auditing appraiser recognizes that this is a new and emerging area of law and is willing to pay at the end of the process with the understanding that the non-auditing appraisal would like an incentive payment in order to reduce costs if the attorneys seek compensation that goes beyond the guiding star. There is a general thesis that lawyers cannot share their fees with non-lawyers. Next, we need to examine what law applies in the particular jurisdiction in which the litigation will take place. The cases indicate that there is a division of powers where some courts consider that a non-auditing expert is subject to the same rules as a testifying expert. Other cases are opposite. Analyzing these cases gives us an understanding that enables us to structure an agreement with the non-auditing expert in such a way that the court approves the payment of a premium to the non-auditing expert if the case is settled.
Another example: your client’s accountant receives a letter from a shareholder requesting financial information about a company and threatening the accountant that the writer will report the tax accountant to the accountant if they fail to provide the information immediately to the IRS and the IRS other appropriate regulatory authorities. As lawyers, we know that threatening someone to pay money and if they don’t pay, to report them to the authorities is unethical. But what is the law when it comes to someone who is not a lawyer? You need to be curious to find out what the law is before replying to the writer of the threatening letter.
Lawyers are required to keep up to date with changes in the law. There are many sources of continuing education available, including at least completing mandatory CLE courses in order to obtain a license to practice the law. But there are numerous other sources. Some are obvious, like the New York Law Journal, the Wall Street Journal, and the New York Times. There are also blogs devoted to specific areas of law.
An article recently published in the New York Law Journal discussing the evolving law on the content of arbitration provisions in IPO documents was very helpful as it provided the information necessary to prepare the appropriate corporate documents in order to ensure that the requirements for the forum selection clause for claims in connection with private placements or IPOs must be challenged in court under federal law. In some recent cases, such cases have been tried in state courts without the appropriate clause. The last thing you want as a money-raising company is to be subject to 50 different state laws when you have the opportunity to enforce litigation in a federal judicial system. An analysis of the cases mentioned in the article provides a roadmap for the correct type of clause to use.
Another example is talking to lawyers who work in your area. I recently received a call from someone who is conducting arbitration similar to the one we are handling. He just received a negative decision believing the panel’s two attorneys had obviously misunderstood the concepts of trustee duties. Ironically, the dissenting non-attorney clearly understood what those duties were and that the interviewees had violated those duties. That made me think that in my case I need to focus on adequately explaining the duties of a trustee to my panel of three lawyers and not assuming that they understand the relevant concepts. On the other hand, the attorney for the respondents in my arbitration was in the process of writing a letter of request to a third-party financial planner to the claimants who threatened to sue them if there was a negative award in an upcoming arbitration. I have discussed with this other attorney the pros and cons of using this letter as an exhibit in the upcoming arbitration.
Thinking and research are only the beginning of the process. What I’ve been doing for years is, when I have thoughts and ideas like this, I immediately create a memorandum on the files and use this as a basis for working with more junior lawyers in the firm to do the appropriate research and develop further refinements and new ideas on how to use the results of this research. If you don’t do this right away, you will lose your mind as we are so involved in daily legal practice (and the rest of our lives) that there is no way to keep the core of this idea in your head and hope that it is the right one Moment everything comes back. Your memo doesn’t have to be fancy. But it needs to cover your initial thought process of what needs to be done, if anything, and procedures for implementing your idea (s).
Curiosity can kill the cat. However, intellectual curiosity is essential for a lawyer to properly serve his clients. Lawyers need to understand this and recognize that conducting curiosity takes time beyond daily practice.
Charles Hecht is an entrepreneurial lawyer who had his own law firm for 39 years and who recently joined Balestriere Fariello as a partner. He specializes in innovative solutions for complex litigation, arbitration and securities transactions. He values teamwork, which is one of the reasons he joined a New York boutique law firm. He and his colleagues represent national and international clients in litigation, arbitration, government investigations and securities transactions. You can contact him by email at [email protected]