What the Attorney Keeps When the Firm Runs the Process: Relationship, Scope, and Control

Relationship: who the client calls at nine in the evening

During a sale, the owner has a question every day. Is this number good? Should I tell my CFO? What does this buyer mean by "quality of earnings"? Can I keep my brother-in-law on payroll? The person the owner calls with those questions becomes the owner's advisor for the transaction, and often for everything after it.

When a banker runs the process, that person is usually the daily process contact. The banker may hold the valuation work, buyer list, and buyer dialogue. The attorney may not see those materials until the LOI, and by then the owner has spent months building trust with someone else. The attorney who has represented the owner for a decade can become, for the duration of the most important deal of that decade, the second call.

When the attorney runs the process, the attorney can remain the central process advisor while the client approves decisions and buyer contacts. The daily question comes to the attorney. The owner experiences the attorney as the person who knew the company before the sale, helped run the sale, and will be there after it. That is a different relationship from the one that begins when a purchase agreement needs drafting, and it can create opportunities for estate work, the next company's formation, and referrals to the owner's peers.

An attorney can test this with one current client. Ask which professional the client called most often during the last major decision about the business. If the answer is not the attorney, that is the gap the sale process may close.

Scope: from a one-phase engagement to a six-phase engagement

The traditional M&A engagement covers one phase: negotiation through close. The attorney reviews the LOI, drafts or marks up the purchase agreement, prepares disclosure schedules, negotiates indemnity and escrow, and closes. The work is substantial and billable, and it is the last of six.

The five phases before it are discovery and readiness, valuation, marketing materials, buyer matching and outreach, and offers. Each is work the client needs done, each involves decisions the client should make with counsel, and each has historically been performed by someone else or not at all.

Readiness work can include legal work: reviewing contracts for change-of-control provisions, confirming IP assignments, and identifying the disclosure items a buyer may find. The valuation conversation can be advisory work: explaining normalized earnings, multiples, and the gap between the owner's expectation and the market. Editing the CIM is disclosure work: the attorney decides what is emphasized and what must be stated. Reviewing the buyer list is confidentiality work: the client decides, with counsel, which competitors never see the book. Comparing IOIs is analytical work the attorney is well placed to do, because structure, certainty, and fit involve legal questions as well as financial ones.

An engagement that covers all six phases is scoped differently, billed differently, and staffed differently. It is also, for the firm, a larger engagement with the same client, and one that begins months earlier. The firm should confirm its own position with its own counsel on how the federal M&A broker exemption and state rules apply to the activities it takes on and the fees it charges. The federal exemption is conditional and does not displace that analysis. [1] [2] The scope should be written to match the firm's counsel-guided position.

Control: the timeline, the disclosures, the buyer contacts

Control is the least discussed of the three and the one that most directly affects the attorney's work product.

The timeline. When someone else runs the process, the attorney may receive an LOI with an exclusivity period already agreed and a closing date the buyer proposed. When the attorney runs the process, the attorney can set the IOI deadline, decide how long to hold it, and negotiate exclusivity while other buyers are still interested. A 45-day exclusivity with a defined diligence scope may be achievable when three bidders are at the table. It is less likely when one is.

The disclosures. Every statement in the teaser and the CIM is information the buyer will test in diligence and that may become relevant to the purchase agreement. When a banker writes the book, the attorney may see it late, if at all, and inherit whatever was said. When the attorney edits the book, the disclosure schedules can be developed at the same time as the marketing materials, so the firm can check that they agree with each other. The SEC identifies disclosure, transaction role, and other conditions as relevant to the federal M&A broker exemption, which is another reason to keep the firm's counsel-guided role clear. [1] [3]

The buyer contacts. In an attorney-run process, the firm can maintain the process record for buyer communications, including which buyers have signed NDAs, entered the data room, downloaded materials, and asked questions. That record can inform the LOI negotiation and help the firm respond if a buyer later claims it was misled. The client, meanwhile, approves every name before it is contacted, which keeps confidentiality decisions with the party who bears the consequences. Software can organize and track this work, but it does not make the contacts or decide what the client discloses.

What the attorney does not keep, and should not want

The attorney does not keep a success fee. The firm bills hourly or on fixed fees by phase, and the attorney's compensation does not rise or fall with whether the deal closes or what it closes for. This is a feature of the model, not a limitation. It keeps the attorney's advice independent when the client asks whether to accept the highest number or the most certain one, and it is part of the regulatory posture the firm will confirm with its own counsel. Federal law treats transaction-related activities and compensation as part of the broker analysis, while the statutory exemption has its own conditions. [2] [3]

The attorney does not keep the decisions. The client decides whether to proceed at the valuation range, which buyers to approve, which IOIs to advance, and which LOI to sign. The attorney advises; the client decides and acts. An attorney who finds this uncomfortable should notice that it is exactly the relationship the attorney already has with the client on every other matter.

The attorney does not keep the production work. Building a valuation model, drafting a CIM from a blank page, and compiling a list of qualified buyers are tasks that software may perform from the client's inputs. The attorney reviews, edits, and approves. A partner who insists on building the model personally may run out of hours before the process reaches outreach.

A short exercise with a current client

Pick one owner client who has mentioned a sale in the past two years. Write down three things: who the client would call first with a question about an offer, how many phases of a sale the firm's current engagement letter with that client would cover, and whether the firm would see the CIM before buyers did under the client's current plan.

If the answers are "someone else," "one," and "no," the firm is positioned to lose the relationship, the scope, and the control on that client's sale. The possible fix is an engagement letter that covers all six phases, sent before the client takes a buyer's call, subject to the firm's own counsel-guided scope and regulatory analysis.

How Acquivo Pro fits

Acquivo Pro keeps all three in the firm. The client sees a branded document portal under the firm's name, where document requests appear, uploads happen once, and disclosures are approved, so the daily contact is with the firm. One login covers every phase: valuations across 21 industry verticals, teasers and CIMs generated from the questionnaire and data room for the attorney to edit, a prospect list built from documented acquisition criteria for the client to approve, and NDA, IOI, and LOI flow tracked for every client in a single pipeline. Software prepares, organizes, matches, and tracks; the attorney and the client decide and act. To walk through a process on a client you have in mind, request a demo through the Contact page.