Teaching Business Law Makes Me A Better Lawyer

By David Feldman for Law360

In this Expert Analysis series, attorneys discuss how their unusual extracurricular activities enhance professional development, providing insights and pointers that translate to the office, courtroom and beyond. If you have a hobby you would like to write about, email expertanalysis@law360.com.

"I just want you to know I'm new to all this," said the shy first-year college student after I was done teaching her first business law class.

I said, "Well, it's new to everyone here. Our goal is to help you understand why and how law applies to business and why it's important. I just hope you are comprehending what we are trying to do."

She responded, "The way you teach it, I am understanding."

I have been a corporate and securities transactional lawyer for over 30 years. I have worked for entrepreneurial businesses, investment banks, and venture capital and private equity firms, as well as both public and private companies.

I have been an associate and partner in major law firms, but mostly built and ran smaller boutique firms in New York. I have written four books on finance and entrepreneurship. In addition, in the last 10 years, I have focused my practice primarily on servicing businesses and investors in the emerging cannabis and psychedelics industries.

This past Christmas, I was approached by The City University of New York to teach a class on business law to first-year undergraduate students studying business. It was very short notice as the class was starting in just a few weeks. The opportunity had opened after a long-time professor had suddenly passed away.

Given my professional obligations, I was hesitant to take on a three-hour weekly class for 15 weeks with little time to prepare, but I agreed.

I have enjoyed teaching 28 first-year students. I am proud of all of them for choosing to make something of themselves by attending college and, in particular, for studying business. They are engaged and want to learn.

While the joys of teaching certainly help to enhance my legal career, I was particularly surprised at how teaching business law has rekindled my understanding of why we do what we do as lawyers. Now, when working with clients, I am more mindful of the importance of the rule of law and the benefits of our legal system, which helps me maintain a clearer perspective on our work.

Here are some of the topics that have especially reignited my enthusiasm.

Our Common Law System

Teaching has reminded me to appreciate the benefits (and acknowledge the disadvantages) of our common law system. As we know, civil law and common law are two distinct legal systems.

Civil law, derived from Roman law, relies on codified statutes and laws as the primary source of legal rules, with judges applying these codes to cases. In contrast, common law, originating in England, is based on judicial decisions and precedents, meaning judges play a more active role in shaping the law through case rulings.

The civil law system is quite popular throughout the world. Our common law approach, however, with its greater flexibility, allows judges to rapidly address changes in culture, mores and the like. With its reliance on the value of precedent, common law allows operators to plan activities relying on prior decisions, knowing of course the risk that some precedents do get overturned.

Focusing on the importance of common law in our system, has reminded me of the importance of ensuring that contracts cover items that many consider to be boilerplate, but that actually can become very important in the event of a dispute.

For example, in civil law countries, contract interpretation in the event of a dispute allows outside evidence of the parties' intent, whereas in the U.S., common law provides that you can include an "entire agreement" clause that prohibits the influence of parol evidence outside the four corners of a document.

Contracts 101

Teaching business law has reinforced the importance of adhering to contract formalities and has reminded me of the importance of ensuring they are properly observed. When exactly is an offer accepted? Does this contract have to be in writing? How do we really judge someone's capacity to enter into a contract? These are real day-to-day issues we encounter in corporate law.

Sometimes, admittedly, deal lawyers have to rely on somewhat informal approaches to get things done. For example, sometimes attorneys exchange emails to make an agreement on behalf of their clients, but it would be better if the clients themselves signed something to confirm that agreement. Whether those attorney email exchanges constitute a valid agreement is not entirely clear and depends on the circumstances.

Remembering the basics of how contracts are made, extended and amended is at times subordinated to practical realities, but teaching this course has helped remind me of the importance of adhering to these key foundations of contract law as much as possible.

Litigation and ADR

It is, of course, regrettable when a dispute arises after a contract is entered into. And, as a transactional lawyer, I work to help my clients do everything possible to avoid litigation.

Teaching students about the various methods of alternative dispute resolution and witnessing the dramatic rise in the methods' popularity reminds me to ensure my clients are aware of the many options available to resolve disputes without resorting to a formal lawsuit.

The course I teach lays out a number of different ADR options, whether negotiation, mediation, arbitration or other approaches, including minitrials. My view of the importance of determining when and how to add mandatory ADR to contracts in the event of disputes has been meaningfully heightened by my teaching the subject.

For example, more and more parties desire a med-arb approach, where mandatory mediation takes place first, and you only move on to mandatory arbitration if the mediation is unsuccessful. In other cases, however, your client may be better off without ADR options in their contract, and it is important to conduct this analysis.

Ethics

A major focus throughout our class is the challenge in making business and legal decisions based on a moral and ethical approach. What would you do as a young lawyer if a senior partner asks you to, say, represent a tobacco company when you are morally opposed to tobacco? It's not illegal to serve as their counsel and doesn't violate attorney ethics typically. These are some of the questions we try to tackle.

Teaching has reinforced for me the importance of and challenge in making ethical decisions as attorneys. The black-and-white choices are generally fairly obvious, but the struggle tends to occur in the gray areas of ethical choices.

For example, what if, in a custody battle, an attorney knows that their client is not acting in the best interest of the child, but is still ethically bound to advocate for the client's position? My teaching experience has reinforced the importance of a strong ethical and moral code in our work as attorneys.

Conclusion

In sum, beyond providing a mental break from client work and the deep sense of fulfillment that comes from teaching college students, this experience keeps fresh in my mind the fundamental purpose of our profession. As lawyers, we protect our clients, but we also safeguard the legal system and the U.S. Constitution. We should never hesitate to ask not only how it works, but why — and just as importantly, whether it could be better.