The lawyer as counselor.

• Author: Sullivan, Michael

In an age when Lawyers are more specialized and task focused, do clients truly receive legal counsel?

This article originally appeared in the January 2009 IADC Business Litigation Committee Newsletter.

It is said that the environment for legal services today is the most challenging at any time in recent history. The world economy is only intensifying an ever increasing client demand for control over billable rates (the call for alternative fee arrangements); law firms have become more and more segmented (choices range from global firms to local boutiques); lawyers are more technical and specialized, (e-discovery managers, Intellectual Property litigators); and client management over its attorneys is more rigorous and more specific. Yet despite this modernization of the legal profession there is a need for what some may call a traditional role for the attorney, one which can provide broad and even "bottom line" value to the client, though this role is often overlooked by clients and is not practiced in most law firms or by most lawyers: the role of Counselor. Use of an attorney as Counselor by the business client, particularly those with a portfolio of legal needs, issues or cases, can positively impact how the client responds to and profits from the legal challenges its business faces.

To "counsel" is to provide wisdom and advice regarding the judgment and conduct of another. For the attorney, to counsel is to advise the client on the decisions or course of conduct the client will follow in response to the legal issues confronting its business like lawsuits, regulatory issues and employment matters. Unlike task-based legal activities, such as preparing a brief or taking a deposition, to counsel is to apply intelligence, experience and forethought to the client's legal challenges resulting in guidance, opinion, suggestion, creativity, ingenuity and assurance as the client decides how to manage these business matters (and thus determines which tasks to perform). Counseling and decision making should precede action, but in the modern legal market clients too often rush to engage lawyers to act or to do "something" in response to lawsuits, etc., and fail to retain lawyers to counsel. As a result, most lawyers have become legal technicians and specialists; skillful and talented in the performance of tasks for specific legal problems and cases. But for many companies, the Counselor is a fundamental and valuable advisor, when the role for this Counselor is understood to be separate from the multiple specialists a company may retain to perform its legal tasks. The right Counselor can enhance the ability of the client to manage its legal issues in a way which contributes to rather...