On the art of being a securities lawyer

One of the benefits of having been a lawyer for so many years is that I have heard a great many jokes about lawyers. Most hinge on the idea that lawyers are not very good people or not very good at what they do.

Overall, there is a general theme that suggests that 80% of lawyers give the other 20% a bad name. I bring this up because there is always a modicum of truth in anything that we find to be funny.

For me two jokes stand out.

The first I heard while I was still in law school. A professor suggested that the A students would go on to become judges and law professors while the B students were destined to spend their careers working for the C students.

The second I heard after I became ill with a cancer from which most people do not recover. One of my doctors cheered me up by suggesting that in his experience it was true that good people die young. He told me that he felt any patient who was a lawyer was good for his batting average.

I am not here to defend lawyers; quite the contrary.

I recently read an article that reported that the hourly rate for the top partners in the best Wall Street law firms had broken through $1500 per hour. The comments (more than 100) were universally disparaging.

Certainly this rate would apply to the best securities lawyers. I was never a partner in a major Wall Street law firm, but I have been the client of more than one.

Right out of law school I went to work as an in-house attorney for one of the larger brokerage firms. Certain trades required approval from the legal department before they could be routed to the trading desk or exchange floor for execution. I was one of the attorneys who gave that approval.

If the manager of a branch office wanted approval for a customer to buy or sell 10,000 shares of any stock, they would call the legal department. I would ask for the details and make a decision to allow the trade or not. If I delayed and the stock price moved even ¼ of a point while I was thinking about it, it could cost the customer $2500.

Once in a while I needed help. If I could not get it from one of the other in-house lawyers, I could put the manager on hold and speed-dial a partner at one of the top law firms who was on retainer. If I told his secretary that a trade was pending, he would take my call immediately and help me make a decision.

The experience taught me that to be successful as a lawyer I needed to know what I was doing and not just in a superficial way. It taught me that when I did not have the answer at my fingertips, to admit it and find someone who did.

What makes any lawyer valuable to a client is having the right answer to the questions that the client is asking. Sometimes you need to tell the client what questions they should ask and you have to know why those questions are important.

Last week I spoke to a businessman who had a complicated and fairly unique securities law issue. He was quoted thousands of dollars by other lawyers to research his problem. None had ever encountered it before and none could tell him what he should do.

I told him that I had seen another lawyer solve the same problem back in the 1980s by restructuring the transaction so that the regulation that he was struggling with would not come into play. It was the right answer for him and I was pleased to send him off without charge.

Not one of the commentators on the article about lawyers charging more than $1500 per hour stopped to calculate the enormous value of problems avoided by consulting the right lawyer before you act. Problem avoidance is probably the greatest value that any lawyer can give to their clients.

Perhaps the most valuable answer any lawyer can give to a client is “I don’t know.” It is an answer too many lawyers are reluctant to give.

Good clients often have questions about taxes, patents, immigration and frequently, matrimonial law. I have only a cursory knowledge about any of these subjects. But, I know whom to ask. Part of the value of any good lawyer is their professional contacts, both inside and outside their specialty.

Where even good lawyers get into trouble is by taking on matters that they do not fully understand.

In my own practice I know that the US Supreme Court validated and enforced the arbitration clauses that brokerage firms include in their customer agreements in 1987. Notwithstanding, over the years since then, I have run into lawyers who are prepared to file their clients’ claims in court, confident that the court will let them proceed. It does not happen.

They file in court, spend time, effort and some amount of their client’s money on what is essentially a fool’s errand. A trial court judge is going to go with the Supreme Court every time, if for no other reason than they are themselves overworked and moving a case off their calendar and back to FINRA is a no brainer.

The reason that these lawyers do not want to proceed with FINRA arbitration is because they are not familiar with the forum. FINRA does not permit pre-hearing depositions which can freak out even the best litigators.

Many lawyers do not believe that they can effectively question the stockbroker at the hearing without a deposition beforehand. Having worked in the industry, defended more than a few stockbrokers and having participated in a great many FINRA arbitration claims, I am confident that I know how a broker is likely to testify without a deposition.

Even though I was never a $1500 per hour partner at a Wall Street law firm, I could still give the same advice to my clients. There were always treatises and articles written by lawyers who worked in those firms that addressed my clients‘ issues. Lawyers have always valued scholarship and there has always been enough top-flight literature to keep me educated and up to date.

Equity Crowdfunding is a marginal practice for mainstream securities lawyers. These are smaller issues that do not usually generate enough fees to attract the top law firms. But Equity Crowdfunding is still the issuance of securities. The Equity Crowdfunding portals should have experienced securities attorneys on staff. Many do not. The result is a lack of compliance that can only result in problems in a highly regulated industry.

One of the benefits of blogging is that I read the blogs of others. I learn a lot. Some of the blogs written by lawyers who practice in this area are excellent. Some are mediocre. A few are dangerous because the authors are way out of their element.

There is no excuse for practitioners in this or any area of the law to publish advice that is substantially different than would be published by the top firms. Reading and writing about the law is one thing; offering practical advice without having a fair amount of practical experience quite another.

For all the discussion about how expensive some lawyers have become, and all the jokes, I would invite those lawyers who read my blog to start a discussion about how mediocre many practitioners in our profession have become. How using technology to cut costs has replaced hard work and good judgment. How there is so much careless blogging that we are confusing consumers and others with bad advice.

A little self criticism will not stop all of the jokes, but it might make us better lawyers. Our goal should be to offer advice that is worth $1500 per hour even if we charge less.

Leave a Reply

Your email address will not be published. Required fields are marked *