The practice of law is shrouded in tradition. Most of those outside the profession have had their minds shaped by popular culture that all individuals who attend law school transform into the attorneys that they love and hate. But what about those who choose the “non-traditional” path?
It has long been said that community is the pillar of a successful law practice. In theory, networking should be almost second nature to attorneys. We are constantly being invited to luncheons and banquets and panels. For each event, if you do not have your pristine business cards in hand you miss countless opportunities. These events can lead to potential job opportunities, mentor relationships, and occasionally the long-term relationship. But for some people, these networking events can be a source of crippling anxiety. Though it may appear as somewhat of a juxtaposition, some attorneys are in fact introverts. They are successful and driven people, just like their extroverted counterparts, but introverted attorneys often struggle in the area of networking.
It wasn’t all that long ago when firm perks were limited to fresh batches of Starbucks coffee in the break room and 2-weeks of paid vacation. And hey, if you were really lucky, maybe your firm threw in a company-wide party every winter or a couple months of early dismissal “Summer Friday’s” during the warmer months. As wonderful as these benefits may seem on paper, they simply aren’t enough to curtail the stresses and burnout that come hand in hand with this profession.
According to a recent study conducted by the American Bar Association and the Hazelden Betty Ford Foundation, a whopping 20.6% of attorneys demonstrate signs of problematic drinking use and 19-28% experience significant anxiety and depression. It’s no wonder really, particularly in ‘Big Law’ firms where billable hour requirements and evenings spent working well past 1:00 a.m. reign supreme.
Thankfully, we are on the cusp of a change. Perhaps it has something to do with these shocking statistics or maybe it’s as simple as the advent of the Internet, but it finally seems as though the legal profession is stepping into the 21st century and acknowledging what power houses like Google and Facebook have known for a long time: corporate wellness matters.
Why has this change taken so long? In my humble opinion, it has a little something to do with the types of folks the legal profession attracts. We tend to be stubborn, steadfast and, by the very nature of our jobs, argumentative. Combined with the rich history of the law itself (and our desire to still file everything on paper and by certified mail) and it’s no wonder the legal profession has been lagging behind other industries for the better part of the last 30 years.
Emphasizing Wellness to Shift Corporate Culture
Moving towards a culture that encourages wellness, on a mental and physical level, is so much more than sponsoring a few yoga classes or a corporate retreat…it’s about shifting the very mindset we have clung to so earnestly in the legal profession. By encouraging wellness initiatives for all lawyers - from junior associates to name partners – we are simultaneously encouraging a culture of acceptance and inclusion.
By refusing to turn a blind eye to the mental health and substance abuse problems that are so prevalent in the legal industry, we are accepting responsibility for creating a culture that promotes unhealthy coping strategies and burnout. By allowing staff attorneys to work remotely as needed, we are encouraging a healthy balance between work life and family life. And by providing all employees with the tools they need to live a life founded in wellness, we are increasing overall productivity and retention.
It is not radical to state that businesses whether local or international involve some sort of exchange; whether goods for goods, services for services or goods for services and vise-versa. A business whether sole proprietorship or otherwise for reason of expediency usually finds itself in need of a go between aka Agent to represent it in certain affairs.
Depending on the jurisdiction in which the Agency contract arose, the rules governing such relationships while often times sophisticated are fraught with uncertainties. For example, under American Law, the Agent’s authority to act on behalf of his Principal depends on whether the Principal has conferred on him express, implied or apparent authority and the extent to which the Principal is bound by the authorized or even unauthorized acts of his Agent depends on whether the Principal is disclosed or undisclosed. Issues such as ratification and disclaimers of the Agents’ act often arise and where the Agent has faithfully performed according to the Principal’s desires the burden shifts on the Principal to ensure that the Agent is adequately compensated. Such compensation is usually contained within the Agency contract and a defaulting Principal may be hailed into Court or the Agent may place a lien on goods or services within his care until the Principal fulfills his obligations.
International Business Transaction is that body of trade which encompasses more than one sovereign territory. An Agent in a developed jurisdiction in pursuit of compensation earned in a domestic transaction may have recourse to the Law, even though recovery is still not an easy matter. However, issues of recovery of compensation become exponentially exacerbated when the matter crosses international boundaries; in pursuit of his compensation, issues of litigation, discovery, enforcement of awards etc. become further exaggerated should the Agent be crazy enough to attempt such a recovery; most Agents often give up at this point and let the chips fall where they may; an example may serve to highlight the Agent’s dilemma:
An Agent’s (The Agent) services has been contracted by a firm (The Principal), the mandate/instructions is for The Agent to liaise with a manufacturer (The Manufacturer) of blades for the supply of blades to be used in the making of The Principal’s signature line of women’s shavers. The specifications for the blades and the packaging requirements are also contained in the Agency contract. The Agent contacts a Pakistani manufacturer of fine blades whose products seem up to specifications; he obtains further guarantees from The Manufacturer that delivery will be on time and to specification.
On late delivery by The Manufacturer, it is further discovered that a fair percentage of the blades are blunt and another fair percentage were curved. The Principal has rejected the blades and is refusing to compensate the Agent for his services; on the other hand, The Manufacturer is refusing to replace the rejected blades (payment has been made anyway) neither is he willing to reduce cost for late delivery, what is the Agent supposed to do?
In a domestic transaction wherein all parties reside within a single Sovereign Jurisdiction, then it is just a matter of going against The Manufacturer in a Court of Law to compel cure for the defect; however since the transaction involves parties in different sovereign jurisdictions, the Agent may have no other recourse to compel performance than to engage in an expensive and protracted battle in local and foreign courts depending on what the dispute resolution clause contained in the contract agreement is; the best an Agent whose Principal has defaulted could hope for is to have the dispute arbitrated by a competent arbitration panel previously stipulated to by the parties.
A second more acute issue in Agency relationships and one for which this write-up is more concerned involves an Agent engaged in an International Business Transaction whose services may become redundant after Principal and Manufacturer are put in touch with each other; an illustration may serve to clarify the Agent’s dilemma in such instances:
An Agent’s services has been contracted by a firm (The Principal) a local Oil Merchant; The Principal’s mandate/instructions simplicita is for The Agent to source a credible supplier of crude oil to be picked up by cargo ship at any safe world port. An Agency agreement is promptly entered into between The Agent and The Principal; reimbursement is predicated on the successful completion of the mandate.
In pursuit of the mandate, The Agent contacts a Libyan producer (The Producer) of crude oil and notifies him of The Principal’s readiness to enter into an output contract. The Agent enters an Agency Agreement with The Producer and thereafter places both parties in direct contact. After a while, The Principal notifies The Agent that negotiations have failed and that Agency remunerations are now mute. Thereafter Principal and Producer re-initiate negotiations and conclude the transaction without The Agent.
Of course you could call The Agent an idiot for not demanding upfront payment of Agency fees; you could berate him for not signing a Non-Compete/Non-Disclosure/Non-Circumvent (Non-CDCs) Agreement previous to placing the Principal and Producer in contact with each other, but remember that there are no limits to the ingenuity of dubious contractors wishing to save costs by cutting off the Agent’s fees, Non-CDC Agreements are often worth less than the paper they are written on unless the Agent is a big firm with enough resources to enforce its terms and that is even where it is aware of the Principal’s double dealing.
If The Agent is a sole proprietorship or a small start-up for example, The Principals might make payment of Agency fees contingent on the successful performance/conclusion of the contract and could thus repudiate the Agreement at the slightest infraction; furthermore, as you may have surmised, Agents come a dime a dozen, the smart Agent will usually act first and question later, thus placing himself at the mercy of parties who are usually in business to maximize profit and save costs; the issue thus reverts back to the initial query: how, considering the stated circumstances does an Agent guarantee payment of Agency fees for service rendered?
While there are no full proof methods of ensuring reimbursement after performance, the following steps are highly recommended:
1. Deal with Principals you trust or Reputable Firms Only
A Principal with whom the Agent has a previously established relationship is less likely to double deal; on the other hand a reputable firm will try to avoid the embarrassment of a weeping Agent at its doorsteps.
Another good way of ensuring payment of Agency fees is to avoid bringing the Principal and Producer in contact with each other; this is a complex dance and may quickly degenerate into loss of confidence in The Agent’s ability; The Agent must ensure that any exchange of documents between the Principal and The Producer must be funneled through him; he must ensure that such documents do not contain any reference to emails, contact addresses/persons, telephone numbers etc. this could be done by redacting and rescanning before re-forwarding; Conference calls and meetings must only be arranged on strict understanding that no exchange of contact information including business cards are permitted.
To ensure that parties do not lose confidence in the Agent, the Agent should ensure that both parties are informed ahead of time that they will not be put into contact with each other until Agency payments are made; such a clause could also be incorporated in the Agency contract.
3. Appoint a Paymaster
A paymaster is charged with all financial payments associated with the transaction, he ensures that escrowed monies are transferred to individuals and companies that are mentioned in the contract. An Attorney in good standing is seriously advised under these circumstances.
4. Non-Compete, Non-Disclosure, Non-Circumvent (Non-CDC)
As earlier stated these clauses in the Contractual Agreement are only relevant where the party seeking enforcement is buoyant enough to seek redress in any Court of Law the world over and even then, The Agent has to be aware/know when The Principal and or Producer as the case may be may have circumvented him; this is not an easy matter to detect, it is advisable that The Agent maintain an insider on both teams to update him on goings-on concerning the contract; in the absence of such an insider, The Agent may have to pay a private investigator to keep him abreast of what is going on, this is usually a time and money consuming undertaking, however, concerning Non-CDC Clauses, it is always better to have one than to not.