In Lawyer Parentis – The Lawyer as Authority Figure
The other day I had the following exchange on Twitter:
It was in the context of whether a lawyer’s client should ever talk to the press or publicly discuss an ongoing case. (Spoiler: No.) But Dr. Kubik asked nicely if I would comment on it in my blog. So here we are. It’s all her fault!
She’s right in that this is not something that gets a lot of attention in law school. Even this quote from my torts prof would probably not be made in most law schools today:
“A woman comes into your office. Her husband was recently killed. It’s winter. She can’t pay the heating bill. Her children are hungry. So far as anybody can tell, her husband’s death was an unfortunate accident. She begs you to find some way for her to sue…
… The answer is *pound on the lectern* no! It’s not in the law, she has no case, and telling her otherwise is a breach of your duty to your client.”
But one of the most important – and least pleasant – duties of the attorney is to be able to say no to a client. I have had to say to clients, among many other things, “No, you cannot…”
- “…get out of this contract without incurring significant expense and/or risking major liability.”
- “…use that previously-trademarked name for your new business.”
- “…practice that patented invention without a license.”
- “…prevent that person from stating their unpleasant opinions about you in public.”
- “…make that pricing arrangement all your major customers are screaming for without risking the wrath of anti-trust regulators.”
I am a very good lawyer. And I have found ways to make a lot of things work that looked like they couldn’t be made to work at first. I firmly believe my job is not to say no, but to find a way to say yes.
But sometimes the answer is… *pound on the lectern* no!
And if you can’t say no to your client you have no business doing this work. Yes, it’s hard. Everybody wants to please, everybody wants to be liked, everybody wants to be a team player. But lawyers are, if you’ll pardon the expression, on the special teams. We have to be able to say, “Coach, I can’t make that kick,” if we really don’t think we can make it. Because otherwise the team will rely on us to do something that cannot be done. This will not only result in failure, it will make things much worse than they would have been had a realistic approach been adopted in the first place.
In the context of my discussion with Dr. Kubik, your client may feel they have been wronged, that their reputation is on the line, that they have been unfairly maligned in the public eye. They think it’s only reasonable to talk to that nice, sympathetic reporter and tell “their side of the story…”
*pound on the lectern* No!
If you haven’t already seen it, go watch this video: Don’t Talk to the Police.
Everything in that video goes for talking to not only police, but regulators, journalists, bloggers, and random people on the street. It could, theoretically, help you. But it’s unlikely to, you have no control over the outcome once you say anything, and there are an infinitely larger number of ways it could hurt you. We shouldn’t even have to have this discussion. If you must, the lawyer vettes every word in that statement first, and no questions.
That being said, of course your client has to speak publicly in the normal course of business to all of those people. And that’s fine, so long as all the personnel doing so understand their roles and their limits. By all means, communicate openly, freely, honestly and truthfully.
But once something has started to go wrong, your client’s livelihood, assets, freedom and/or life may be on the line. You must make clear to them that their feelings and desires to be understood are not only irrelevant, they may end up costing them everything. There’s a reason big companies issue those weasel-worded lawyer-lingo statements that everybody hates. Because you don’t get to be a big company without acquiring some smart lawyers. That’s you. You have to be the smart lawyer even when it makes the marketing people scream like they’re being tortured.
How do you do this?
You set forth risks clearly. You advise on the risks associated with alternatives. And you make sure you don’t get a reputation for exaggerating risks and being the lawyer who just says no to everything. In other words, you don’t be this guy:
But you don’t, I repeat you do not, ever minimize or dismiss those risks. You don’t leave one off the list because it’s just so unlikely, unless no reasonable attorney would include it. Stabbing Future-Gandhi is pretty bad. Alien invasion would severely disrupt almost any business operation. However, it’s okay to leave them off the risk table. Short of that, if it’s a possibility, you need to advise on the potential legal risk. And if they try to make you say a risk really isn’t a risk, you do not, ever, agree with them. It’s okay to agree that a risk is minimal. It’s not okay to agree that it doesn’t exist.
And in the end, you may have to ask them that question, just as I asked it: “Do you want to make a little more money/be understood, or do you want to avoid bankruptcy and/or jail?”
It’s hard. You learn from experience. And if you are a freshly-minted attorney, so new you still squeak going around corners, you may very justly fear irritating powerful/experienced/successful clients or giving up work you need to keep food on the table. I get that. I’ve been there. But it is your duty. And ultimately, it’s your assets and livelihood on the line, because if you don’t give competent advice, you are going to be liable for malpractice and open to sanction for it.
If your client wants to act against legal advice about something that will “just” get them sued/cost them a lot of money, you have a little more leeway. You can continue representation (document everything!) and try to mitigate the result of the action. Who knows, you might even be wrong!
But if they want to do something that could get someone hurt, or violate criminal law, or be considered an act of moral turpitude, you have to make clear to them that you cannot continue to represent them. (Don’t lead with this, obviously.) And then you have to back it up. Here is another quote, from the first legal conference for General Counsels I ever attended:
“Repeat after me: I’m not going to jail for the shareholders.”
Don’t go to jail for the shareholders. Don’t get yourself disbarred for the shareholders. Don’t get yourself sued for malpractice by the shareholders for the actions of corporate personnel.
Learn to say no.
And, if you have to, pound on the lectern.