A Career in Corporate Law Involves More than Corporations

Bruce A. Ortwine

Introduction: Corporate law means so many things that the term can be confusing to the uninitiated (as well as to the initiated). The following is intended to alleviate some of this confusion. It is based on my own personal experience as a “corporate lawyer.” Others surely have had experiences that would include many other aspects of corporate law that I have not experienced and that would further demonstrate the vast scope of this field of the law.

 

1. Entities that Fall within the Spectrum of Corporate Law: I have personally dealt with the following types of legal entities that fall within the spectrum of corporate law:

 

–corporations

–not-for-profit corporations

–limited liability companies

–general partnerships

–limited partnerships

–master limited partnerships

–professional limited partnerships

–sole proprietorships

–“Doing Business As” (trade name) entities

–banks

–bank holding companies

–financial holding companies

–mutual funds

–special purpose vehicles (“SPV’s”) or special purpose corporations (“SPC’s”)

–trusts

–charitable trusts

–foundations

 

This list merely reflects my own personal experience and is merely illustrative of other types of legal entities that fall under the “corporate law” umbrella. The actual universe of legal entities involved in corporate law is no doubt broader.

 

2. Helpful Skills in a Corporate Law Career:

 

1. First and foremost, having an appreciation of your client’s business: having a full knowledge and appreciation of what that business does and why and how it does it.
2. Understanding that negotiation is not litigation (i.e., intent is to reach a mutual agreement, not to defeat your adversary—though, obviously, the objective is to obtain the best result for your client). Know what points that are subject to negotiation in a potential business transaction are important to your client and cannot be given up, what points can be negotiated and what points are less important and can be given up—from the point of view of both your client and also of your counterparty.
3. Understanding contracts is critical—analysis and drafting in a way favorable to your client: you always want to be the drafting party (further discussed in #4 below).
4. Analyzing the problem and applying prior experience to problem solve; obviously, this is a skill that is acquired with experience.

 

3. Applications: Here is a non-exhaustive list of areas of “corporate law” I have personally been involved in:

 

Corporate Governance and Ethics:

–Ongoing advice on Board of Director and Senior Management governance and oversight and fulfilment of their fiduciary responsibilities;

–Corporate Code of Conduct and Ethics for all employees;

–Board of Director and Senior Management training.

 

Transactions:

 

–Corporate Reorganizations and Restructurings;

–Mergers and Acquisitions (stock and asset);

–Joint Ventures;

–Financial Transactions: loans (lending can take numerous forms, including secured and unsecured, syndicated (many lenders) and bilateral (one lender), recourse and non-recourse, etc.) structured loans, asset based, receivables financing, Collateralized Loan (or Debt) Obligation issuances, factoring, trade finance, etc., involving security agreements, pledge agreements, guaranties) and is a universe of skills onto itself);

–Loan Workouts and Restructurings;

–Public Financing (debt issuances by state and local governments and governmental agencies (general obligation, revenue, leasing), letters of credit providing credit and liquidity support to the issued debt;

–Securities: private placements not registered with the SEC, initial and secondary public offerings registered with the SEC, broker-dealer and investment advisory activities, State securities laws requirements;

–Leasing, including aircraft and leveraged lease transactions;

–Leveraged leasing, including synthetic leveraged leasing;

–Distribution Agreements;

–Confidentiality (Non-Disclosure) Agreements;

–Interest Rate and Foreign Exchange Swaps and Other Derivative transactions;

— (Obscure) Banking activities: custody of customer securities and cash, repurchase and security lending transactions;

–Indentures (including acting as Trustee for debt holders);

–Entertainment (another universe): film production and finance, artist management, personal services contracts, record, publishing, film and TV contracts, concerts, licensing;

–Sports law (management, personal services contract, personal appearances, licensing);

–Intellectual Property including software licensing;

–Consulting Contracts;

–Employment Contracts and Employment Terminations.

 

Compliance:

–Bank and Financial Institution Regulations (Title 12), Securities Regulations (Title 15) and Derivatives Regulation (Title 7);

–Corporate Compliance Programs (U.S. and Global);

–Anti-Money Laundering Compliance Programs (U.S. and Global);

–Enterprise Risk Management Framework (U.S.);

–Volcker Rule Compliance Program (U.S. and Global).

 

General Advice and Counseling:

–Development of Business Plans in businesses ranging from record companies to biomedical devices to private investigative services to personalized private training getaway packages.

–Every type of general/specific advice in areas related to business, commerce and capitalism relevant to the spectrum of clients and businesses represented. Sometimes, the advice provided has veered into unusual areas, including:

–Establishing a publishing company for a then-young and up-and-coming singer named Madonna, completing and filing her 1983 tax returns, and representing her in both recording and management contracts and a litigation brought by a previous manager;

–Representing the two TG children of the President of a bank client in effecting the legal changes in their names and gender more than 30 years ago;

–Interviewing ten retired African-American Harlem Globetrotter players on their experiences playing basketball against white teams in a racially segregated era;

–Establishing various not-for-profits dedicated in areas ranging from after-school activities for inner city children, promoting sports activities for inner city children, advocacy of services for persons with epilepsy and ensuring financial assistance for retired National Basketball Association players.

 

 

4. The Importance of Contracts: Perhaps the single most critical document in corporate law is the agreement, or contract, which often—though not always—is “executory” in nature, meaning that it documents an understanding between two or more parties that requires certain future actions to be accomplished before the transaction is finalized, or “closed.” Think of an agreement to purchase a house; the house is not actually sold until certain future actions take place, including the purchaser obtaining a mortgage, inspecting the house, the seller paying off an existing mortgage, providing the purchaser with a deed, etc.

 

A contract can often be broken down into the following substantive sections (not all will appear in all contracts):

 

1. Documenting the business transaction (merger or acquisition, loan, etc.);
2. Representations and warranties (statements of fact);
3. Conditions to closing (what must be done before the parties are legally obligated to complete or close the transaction; this includes obtaining all necessary internal or external (governmental or other) consents);
4. Covenants (promises) both affirmative and negative (promises to do or not do specified things);
5. Events of Default and Remedies;
6. Indemnifications;
7. Miscellaneous or boilerplate provisions (notices, governing law, jurisdiction, etc.).

 

5. A Few Pieces of Advice:

 

1. Aim higher than your current capabilities;
2. Don’t get stuck in a rut of routine;
3. Don’t think you know it all—nobody does and complacency leads to laziness and inevitably to mistakes;
4. Learn from your mistakes—everybody makes them but not everybody learns from them;
5. Piece things together; think of the whole and how what you are currently focused on fits within the larger context;
6. The interests of your client always come first—it’s all about the client and not you as the attorney;
7. Never underestimate—or overestimate—the capabilities of your counterpart attorney;
8. Do not judge the capabilities of your counterpart attorney by the law school he or she went to; in transactional negotiations, I enjoyed going up against graduates of Harvard, Yale, etc., who were often too academically inclined; by contrast, if the other attorney came from Brooklyn Law, New York Law, etc., I knew I was in for a street fight, and experiencing those fights made me a better lawyer.
9. Rely on yourself and your own gut instincts rather than relying on the other attorney’s assessment; the other attorney may well either not know what they are talking about or is being dishonest with you; this skill in deciphering the motives of your counterpart attorney will improve with experience.
10. The best writing style is one of short, simple, declarative sentences; write law the way Hemingway wrote novels.
11. There are always persons smarter than you—at least in certain areas and you must recognize that; but there are also persons less smart than you and you must recognize that as well.
12. Find an area of law about which you are passionate and pursue that area; you will become a better lawyer, more thoroughly enjoy your practice and never “work” a day in your professional life.

 

 

Conclusion: I hope this has been of some help to you in clarifying what “corporate law” is and entails. Remember, it is a universe as broad as we want to make it to be. Its continued expansion is limited only by our own collective imaginations.