I always knew this, and my former private practice colleagues frequently criticized me for it, but as a transactional lawyer you learn quickly that the business transaction is more important than the legal position. “But the client has risk if you do the transaction that way,” I frequently heard. “Well, yes, but that’s the client’s decision to make, not ours” I would remind them.
Early in my career a client had reminded me. After listening patiently to my explaining why he should abandon a transaction, he admonished me saying, “we are in business to do deals, not to not do deals.”
This is a lesson that is often lost on many of our outside counsel, and it’s one I have to teach (and re-teach) frequently. I find myself saying, “O.k. Fine. There are risks. What is your best advice on mitigating that risk?” — which is usually met with a few moments of awkward silence, followed by (on a good day), “let me think about that and get back to you.” Or on a not-so-good day, “We (the royal “we” as in THE FIRM) can not recommend you proceed with this transaction.”
“Don’t do it” is reserved for the suicidal. Everything else has more than one good alternative. Please assume we’re looking for the latter when we’re asking for your advice.