Some Unsolicited Advice, Part III

I retired from the practice of law in 2013. I spent 43 years as a transactional attorney, mostly as a partner with Foley & Lardner LLP. Neither of my children decided to become lawyers, so I never thought to share much with them about the lessons I learned during my years of practice that helped me succeed as a partner in a large law firm. Since I believe there is some “wisdom” to be gained from my experiences, I decided to share some of them with you in this three part series. Parts I and II can be found here and here.

Try To Become Indispensable 

If you want to become a partner, try to become indispensable to the partners you are working for. Ask what you can do on a transaction to ease their burden. As you become more experienced, go to them and suggest a course of action that you believe will advance the transaction and allow the partner to do something else with his or her time. Don’t be too pushy. Just make it clear that you are interested in taking on more responsibility if the partner thinks you are ready to do so. When senior associates or senior counsel are considered for partnership, the ones that have made things easier for the partners they work for are likely to have the easiest time.

Think Like a Partner

Think like a partner even before you are one. A law firm is a business, and it survives by making enough money to attract and retain really talented attorneys. There are lots of ways an associate can help a law firm prosper. You can work hard and bill your time promptly. You can do a great job for the clients you are working for, since the easiest ways to get more business are from existing clients of the firm, from new clients who come to you because they have heard great things about you from these existing clients, and from clients on the other side of a transaction who were impressed by the work you did for your existing client. For example, I was retained to represent one of the largest banks in the world in transactions involving billions of dollars in financings for state-created insurance companies in Florida and Louisiana to repair damage from hurricanes because the bankers were impressed with the way I had represented one of my public agency clients in a complicated financing involving that bank. You can get involved in the network that serves your existing clients, like their trade association, and in charitable and community activities in the community where you live or work. Your success will add to the firm’s success, and you will both benefit.

When I left New York City in 1975 and moved to Florida to join the small firm that merged with Foley in 1985, I got involved in what was then a novel bond transaction representing the City of Orlando. The senior partner had agreed to do the legal work for $2,500. I knew the firm would lose money if that were all it was paid, but I was a brand new associate, and the fee had been agreed to without any input from me. The day before the closing, the underwriter called to ask me if there were any unresolved issues that needed to be addressed before closing. Without any authority from anyone, I told the underwriter that we had done far more work on the transaction than originally contemplated, that there wouldn’t be a closing if we hadn’t been willing to do that work, and that the $2,500 fee was inadequate. He asked what we should be paid and I said “$10,000.” He told me that he could pay us $7,500 on his own authority, but that he would have to ask his boss to pay us more. I told him that I would speak to my boss and get back to him. When I told the story to the senior partner, he laughed and said, “take the $7,500 and run”. Needless to say, I did. After I became a partner, I was told how impressed the partners were that I cared about getting the firm paid a fair fee even though I had absolutely no financial interest in the outcome.

The Art of the Deal

I spent my entire legal career trying to become a better writer. I have rarely reread something that I wrote more than a few months ago without thinking that I could have made it shorter or clearer. Legalese is the enemy of good writing. Trying to document a complicated transaction using plain language can be hard work. Transactional attorneys spend much of their time listening to their clients, negotiating the terms of the deal with opposing counsel, and then reducing those terms to writing. Always trying to get better at this, and finding personal satisfaction in a job well done, is the true “art of the deal” for a transactional attorney.

In 1975, the last year that I practiced law in New York City, I was asked by my firm to negotiate an agreement to put a famous awards show on television for five years. It was a three-party negotiation among the producer of the show, the owner of the awards trademark, and the client. My client told me that it was critical that it retain ownership of all of the intellectual property rights to the shows that would be broadcast on television. It was a contentious negotiation that took almost six months to complete. When the agreement was finally signed, and I watched the first awards show that had been produced and broadcast under the terms of that agreement, I was relieved and a little proud of the work that I had done.

Twenty-five years later, I got a call from a partner in the law firm that I had worked for in New York City. He told me that the client and the producer of the awards show were in litigation over whether the producer had the right to stream over the Internet the entertainment portions of the awards shows that he had produced under the agreement I had negotiated. He also told me that the producer’s attorney wanted to take my deposition. I reminded the partner that the internet had not been invented until many years after that agreement had been signed. I also asked him to send me my old file so I could review that agreement. He did, and I was relieved to find that I had listened to the client’s concerns and had drafted a provision that was broad enough to cover technology that did not exist at that time. The partner told me after my deposition that my testimony was extremely helpful to the client. I remember being quite grateful to the mentors who had taught me so much about good drafting. The producer died a week later, and his death ended that litigation before any decision had been rendered.

Treat Everyone Fairly and With Kindness and Respect

In life in general, and in the practice of law in particular, you should treat everyone fairly and with kindness and respect. If you can’t do this simply because it is the right thing to do, then do it anyway out of pure self-interest. If you do this, the rewards can be significant. When you need assistance on an emergency basis from associates, legal assistants or secretaries, people who you have treated this way are far more likely to offer their help willingly, even late on a Friday afternoon or over a weekend. If you have a reputation for treating people this way, clients are more likely to send you additional business and to become a referral source for you. If you have a reputation for being unfair, rude and disrespectful, the collateral damage can be significant.

When I was 54, I lost my most significant client because of a change in political control of that public agency. This devastated my practice, and I spent the better part of the next year trying to rebuild it. I believe that I succeeded in that effort in large part because of the kindness shown to me by the potential clients that I was reaching out to. The in-house counsel of one significant new public utility client that retained me after a competitive selection process told me that he knew of my reputation in the community, thought I had been treated unfairly by my former client, and wanted to help. The senior living practice that I developed as part of my rebuilding effort came from a referral made by the head of a national hotel chain that had been on the opposite side of a transaction that I had negotiated. The reason for the referral, as I recently learned, was that I had gotten my client a very good deal while treating the other side with kindness and respect. This proves that in any negotiation, you can disagree without being disagreeable.

If you take any of this advice, and it helps you become a partner, please “pay it forward” and become a mentor to one or more young associates who will benefit from your wisdom.

Thanks for reading this.

Gordon Arkin

Gordon Arkin is a 1970 graduate of the Law School. He is a retired partner of Foley and Lardner LLP.

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