The facts in this dramatization, “Going Public about Going Private: Scenes from the Boardroom,” are generally similar to the Ontario Securities Commission’s decision on Sears Canada Inc. Here, Sears Holdings Corporation similarity bid to buyout minority shareholders of a subsidiary which raised questions or disclosure, improperly benefits, and abusive transactions. By and large, the most salient lesson I took from the dramatization is that mastering the legal elements of M&A is just a starting point for being a good M&A lawyer. Throughout law school, I was under the impression that being a master of the law and legal aspects of, say, an M&A transaction was the only metric for making a good lawyer (along with legal ethics). This dramatization illustrated the skills which complement legal knowledge. As such, this reflection will focus on the non-legal skills identified through the dramatization and why these non-legal skills add to a lawyer’s legal arsenal.

To start, it was clear from the different characters represented archetypes of people in transactions. While I initially thought this was for humorous effect, I began to appreciate the significance of a lawyer’s role in navigating through these archetypes. The Good Old Boy had the role of somebody favored by Canco and well experienced from years of practice. There were multiple times that legal experience was deferred to and there was a question of whether any lawyer had previous experience with a particular type of deal, situation, or issue. The norms of collegiality are not apparent until you interact with lawyers, and it is surprisingly different from the norms of collegiality in law school among peers. It is important to appreciate the subtle norms of each interaction and adroitly navigate through them in a professional manner. Moreover, there are some assumptions that must be made due to the lack of context. Unlike law school, the division of parties are more radical and there are clear demarcations of differing interests (whereas in law school, it came down to grades, jobs, and perhaps some sort of social capital). For instance, in the dramatization, Experienced Lawyer might have a long-standing relationship with Good Old Boy and it might inform how they make decisions insofar as presenting a unified front. Even if they disagreed with each other on specific matters, they may on principle try to come to a common answer. This point was made sharper with Trouble Maker, who came as a packaged deal with Takeover Talent. It is crucial to track different relationships above and beyond the legality or business factors. Decisions with real life consequences are more open-textured than fact patterns we find on exams or isolated questions found in academic journal articles. The lesson I learned is that such decisions are not made in a vacuum and, in contrast to academia, there are more contextual consequences to consider than the theoretical legal or business decision.

Still, as a lawyer in a business setting, stepping on eggshells only goes so far. It is important for lawyers to sometimes say “no.” For example, it was crucial to reject Managing Bully’s suggested composition of the independent committee. Lawyers need to track risks and let some things go, yet at the same time draw some threshold for interfering. Given the social and relational factors, it adds complications. There is no bright-line legal test for taking social norms into consideration. This informs the various “styles” of lawyering that one might present. This issue was discussed in the aside with respect to being counsel for a committee. As an outsider, the lawyer must establish their reputation, but they must also not immediately take control and start being overly controlling. There is a spectrum to navigate between being overly zealous and strict about the law and being a complete pushover. Much like a politician, lawyers must take control of their “ethos” or the particular character and influence they present to others. Takeover Talent demonstrated one type of balance on this spectrum of zeal and passivity. In my mind, I believed that being zealous and playing the role of the rulebook was the entire role of the lawyer. However, it seems that being more flexible and finding creative solutions is a more accurate description of the role of a lawyer in M&A transactions. Yet this presents a new challenge of discerning how much to give and how much to take.

The independent committee is a key issue and illustrates the challenging of having to navigate both from the legal and interpersonal perspective. By way of reminder, in Sears, the OSC questioned the good faith of the independent committee of directors. A director’s fiduciary duty includes a duty to monitor management of the corporation to address risk and misconduct, a duty to treat stakeholders fairly, and a duty to act ethically. The purpose of an independent committee is to prevent conflicts or misconduct, and to impartially act in the best interest of stakeholders. As BCE established, stakeholders are varied and include employees, retirees, creditors, consumers, the government, the environment, and the long-term interests of the corporation—importantly, one set of stakeholder interests does not override another. Crucially, and consistent with the “business judgment rule,” the fiduciary standard is not about outcome but the process of rationally accounting for relevant issues and the circumstances of the information available. The business judgement rule covers such decisions by the director provided they act on an informed basis, in good faith, and in the best interest of the corporation.  If directors breach their duty, shareholders might bring an oppression claim for a broad range of remedies. A duty to treat stakeholders fairly includes being fair to minority shareholders. Moreover, a duty to act ethically implies a director should go beyond mere compliance with laws.

What was interesting about the dramatization was that it gave more context to how duties can be broken which is largely missing from merely reading the cases. The dialogue suggested that parties were looking to accomplish their objective even if it meant bending their legal or ethical obligations. While some, like Business Professor, was particularly sensitive to obligations and their reputations, others were flippant towards the interests of potentially dissenting parties or minority shareholders. We might understand this to mean that directors need to be sensitive to moral considerations affecting the “goodness” of corporations and its place in contributing positively to the norms of society. As the Osler lawyer who played Business Professor mentioned in the intermission, we might draw on analogous ethical principles of utility maximization versus rule-based rights protection for insights. What is insightful about this observation is that legal ethics can be uncertain and derive from differing views on what constitute a right action in a particular circumstance.

To return to the lawyer’s role as a liaison and managing interpersonal issues along side the legality, it is difficult to weigh all these factors and give advice under conditions of uncertainty. Despite the many caveats and stipulations that are common with legal advice, clients often push for a “yes” or “no” answer. There are many nuances to consider, especially levels of risks. Yet, ultimately, assessing levels of risks are, at best, educated guesses. For example, the seventy percent chance of litigation against the client might be acceptable, whereas the one percent chance of the deal not going through might be catastrophic if it is realized. The lawyer may also consider other self-interested factors, like receiving a referral from the client or being hired back. These factors do not come through when reading case law, but it appears to be a large part of the legal profession. My understanding of the legal profession is broadened by the uncertainties and ambiguities that exist beyond the law and in the realm of negotiations and business interactions.

I am left wondering how much of this dramatization is exaggerated and how much occurs in real life M&A deals. What I enjoyed most about the dramatization was the interactions between the lawyers as they worked through the questions in the intermissions. The top M&A lawyers in Toronto were cracking jokes, sharing intimate experiences, and stepping out of their professional persona. For the better, it shattered my image of sharp, intimating corporate lawyers—perhaps a cliché derived from Hollywood or drummed up by whispers in halls of law schools. As I am in my final year of law school, I often wonder what it means to develop of “style” of being a lawyer. It became a bit clearer through the negotiation exercise. I found myself trying to replicate what I admired from the lawyers I respected most. It went beyond mastery of the law or being able to synthesize complex arguments on the spot. I respected emotional intelligence; the ability to defuse conflict and emphasize with others. As somebody quipped at the start of the dramatization, the performers’ billable hours for the duration of the performance are astronomical, but I am sincerely grateful for the lessons I learned through it.