What does a corporate lawyer do?

Hopefully, you aren’t feeling too bad about not knowing the answer to this question. I’m a corporate lawyer, and my own parents probably can’t tell you what I do (despite my best efforts to explain it), and most depictions of attorneys in film and television glamorize the professional lives of litigators, not corporate lawyers. Even when a show does depict a corporate lawyer, it usually bears little resemblance to real life.

The obvious answer to the question “what does a corporate lawyer do” is practice corporate law. I explain what that means here. But what exactly does the practice of corporate law entail on a day-to-day basis?

Reasonable minds may differ on this subject, and there is no universally agreed-upon scope of a corporate lawyer’s activities. This post reflects my personal views, which are based on over 17 years of practice as a corporate lawyer with global law firms and as a former public company General Counsel. Also, I’m limiting my discussion to lawyers in private practice. Attorneys working for the government and self-regulatory organizations (SROs) have very different jobs.

With that preface, in my view, a corporate lawyer assists (1) businesses and their stakeholders with (2) risk and liability mitigation and (3) pursuit of profitable growth by (4) helping them order their own governance and relationships with third parties, (5) advising on how to comply with applicable law, rules and covenants and (6) providing strategic advice, (7) all in connection with organizational and commercial matters.

Let’s unpack this.

1. Assisting Businesses and their Stakeholders

As you’ve probably surmised, a corporate lawyer works with businesses and their stakeholders. This includes, among others, corporations, limited liability companies (LLCs), partnerships, individual investors, investment trusts, shareholders, private equity and venture capital funds, LLC members, corporate directors, LLC managers, officers and partners in partnerships. We focus on businesses and the individuals and organizations who have formal relationships with them, other than consumers.

2. Mitigating Risks and Liabilities

One of the primary responsibilities of a corporate lawyer is to mitigate risks and minimize expenses and other liabilities incurred by clients. This includes, among other things:

• avoiding litigation and other disputes,
• implementing measures in advance of a dispute to improve the odds of success in the event litigation or another dispute arises (but not actually participating in the litigation process, which is managed by litigation attorneys),
• reducing contingent and fixed costs, expenses and other liabilities and obligations under contracts, governance documents and other instruments that establish parties’ rights and obligations,
• preservation and protection of tangible and intangible property and other assets,
• minimizing the risk of violations of laws and rules promulgated by SROs (e.g., Nasdaq),
• helping to ensure parties to transactions have a full understanding of what they are buying or selling (e.g., through due diligence) and
• enlisting assistance from specialist attorneys, such as tax, ERISA and environmental lawyers, on an as-needed basis.

3. Supporting Profitable Growth

A capable corporate lawyer not only looks to minimize a client’s downside exposure but maximize upside opportunities, as well. This may entail:

• minimizing constraints on business plan execution,
• otherwise supporting implementation of a client’s business plan, such as through M&A activity,
• implementing an appropriate governance structure to foster collaboration, incentive alignment and successful performance by and among officers, directors and other control persons,
• maximizing potential gain from contracts and other instruments and
• facilitating capital-raising.

4. Helping to Order Governance and Third Party Relationships

A corporate lawyer will mitigate risks and liabilities and support profitable growth in part by drafting contracts, governance documents and other instruments in a manner intended (1) to set forth clearly each party’s rights and obligations, (2) to minimize a client’s risks, liabilities and restrictions and (3) to maximize the client’s rights and potential gain, in all cases in light of the express terms of the document and applicable default rules imposed by law.

Examples of contracts a corporate lawyer may prepare, include:

• Merger Agreements,
• Stock Purchase Agreements,
• Asset Purchase Agreements,
• Securities Purchase Agreements,
• Note Purchase Agreements,
• Subscription Agreements,
• Disclosure Schedules,
• Indentures,
• Loan Agreements,
• Commercial Agreements, such as Supply Agreements, Distribution Agreements and Services Agreements,
• Joint Venture Agreements,
• Limited Liability Company (Operating) Agreements,
• Non-Disclosure (Confidentiality) Agreements,
• Proprietary Information Agreements,
• Assignment and Assumption Agreements,
• Exclusivity Agreements,
• Warrants,
• Registration Rights (Investor Rights) Agreements,
• Restricted Stock Award Agreements,
• Term Sheets and Letters of Intent,
• Escrow Agreements,
• Indemnification Agreements
• Termination Agreements,
• Investment Management Agreements,
• Rights of First Refusal and Co-Sale Agreements,
• Voting Agreements,
• Shareholder Rights Agreements,
• Side Letters,
• Placement Agent Agreements,
• Employment Agreements,
• Non-Competition Agreements,
• Settlement Agreements,
• Guarantees,
• Earnout Agreements and many more.

Besides contracts, a corporate lawyer can assist with the preparation of a variety of other documents governing or reflecting relationships among private parties, such as:

• Certificates or Articles of Incorporation,
• Certificates or Articles of Formation,
• Bylaws,
• Resolutions and Consents,
• Board Committee Charters,
• Policies and Codes of Conduct,
• Meeting Minutes,
• Certificates,
• Legal Opinions,
• Demand Letters,
• Powers of Attorney,
• Proxies,
• Letters of Transmittal,
• Stock Certificates,
• Notices,
• Private Placement Memoranda and many more.

5. Compliance with Laws, Rules and Covenants

A corporate lawyer also identifies laws and rules applicable to clients’ activities or status and advises on how to comply with them. Generally speaking, these laws and rules include, among others:

• state corporation, LLC and partnership law, including laws establishing fiduciary duties and laws governing mergers and acquisitions,
• federal and state securities laws, including laws governing public company governance and disclosure obligations, such as the Securities Act of 1933, the Exchange Act of 1934 and the SEC rules thereunder,
• federal and state laws concerning the interpretation and enforcement of contracts,
• anti-bribery laws, such as the Foreign Corrupt Practices Act, and
• rules promulgated by SROs, such as the NYSE, Nasdaq and PCAOB.

In addition, a corporate lawyer will usually have at least some familiarity with laws governing antitrust and competition, communications, privacy, tax, the environment, employment, labor, real estate and intellectual property.

Such compliance activities often entail the preparation and filing of documents with federal and state governmental agencies and SROs. Examples include:

• Annual Reports on Form 10-K,
• Quarterly Reports on Form 10-Q,
• Current Reports on Form 8-K,
• Proxy Statements,
• Section 16 filings (Forms 3, 4 and 5),
• Notices of Exempt Offerings of Securities on Form D,
• Regulation A Offering Statements on Form 1-A,
• State blue sky filings,
• Notices of Proposed Sales of Securities under Rule 144 on Form 144,
• Registration Statements on Forms S-1, S-3, S-4 and S-8,
• Investment Adviser Filings on Form ADV,
• Applications for Broker-Dealer Registration on Form BD,
• Beneficial Ownership Reports on Schedules 13D and 13G,
• Certificates of Formation / Incorporation,
• Forms SS-4 to obtain employer identification numbers,
• Premerger Notification and Report Forms (HSR filings),
• Certificates of Merger,
• Certificates of Conversion,
• Certificates of Termination,
• Trademark Registrations,
• Foreign Entity Registrations,
• Assumed Name Certificates,
• UCC filings,
• Franchise Tax Filings,
• Employment and Labor Filings and
• Amendments to any of the foregoing.

Aside from advising on compliance with laws and rules, a corporate lawyer advises on compliance with contractual covenants and governance documents. For example, clients will often inquire about what shareholder and director approvals may be required to take certain material actions, such as stock repurchases, restructurings, acquisitions or distributions. They may also solicit guidance as to how best to interpret and comply (or to compel a counterparty to comply) with obligations under contracts.

6. Providing Strategic Advice

The best corporate lawyers don’t limit their support to purely legal matters. We have unique access to the inner workings of many companies and can manage hundreds of deals over time. Such iterative exposure results in a deep reservoir of experience into which a corporate lawyer can tap for the benefit of his or her clients. What may be novel and, perhaps, intimidating to a client may be commonplace to an experienced corporate lawyer. When this experience is shared with clients, it can serve not only to help companies run well and transactions proceed smoothly but also to provide insights into creative solutions to challenges clients face.

7. In Connection with Organizational and Commercial Matters

Finally, all of the above-described corporate lawyer activities relate to organizational and commercial matters. Generally, corporate lawyers don’t handle personal matters, such as immigration, divorce, estate planning and crimes (except the avoidance of white collar crime), and we don’t usually do more than dabble in specialty areas of law, such as intellectual property, tax, real estate, ERISA, environmental and antitrust.

 

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