The problem with lawyers, say some, is that they are too different. They are ‘clever’, use Latin terms and long words, wear dark suits and ties, and are aloof. They draft long, obscure documents, they take too long to complete work, they won’t give a simple yes/no answer to questions, and they get in the way of my deal. They aren’t team players. They are stand-offish, and their values are different from the rest of us. They cost too much and they earn too much. If only they would stop being like traditional lawyers, we would all get along much better.
How much of this description do you recognise in your lawyer, or in yourself? If you substituted ‘oncology consultant’ for ‘lawyer’ in the previous paragraph, would you still recognise some of these faults, and would they be any more acceptable? Would you rather be treated by an incompetent consultant with a great bedside manner, or a highly competent one with only passable social skills? And if you are the patient, do you have any obligations to meet the consultant half-way, to stop smoking or turn up on time for appointments?
Perhaps the analogy is pretentious? We accept things when they are a matter of life and death that we don’t accept in a business relationship? I am the customer, therefore I am right, what I say counts, and I shouldn’t need to meet my lawyer half-way?
In IP Draughts’ view some of the ‘features’ mentioned in the first paragraph are lawyerly faults and the lawyers among us should recognise them and try to do better. But some of the other qualities are either neutral (and irrelevant) or commendable. The client is not always right, and there are situations where the lawyer should maintain a healthy distance from the immediate desires and preferences of one’s paymaster. This is as true for in-house lawyers as it is for external counsel.
Sometimes, the right course of action is obvious – as when criminal offences are being committed or contemplated – the lawyer should at the very least advise against such conduct, and may have a legal duty to report the activity that overrides any duty to the client.
In other situations, there may be shades of grey, and judgment may be required as to whether to treat the proposed action as within a client’s prerogative or something to stand firm against; whether to gently nudge the client but accept his ultimate decision, or be very blunt and direct. Judgment comes from experience, and advice may need to be sought from a more experienced lawyer or from one’s professional body. In some cases, the client may be hopeless at recognising the dangers or at taking the point seriously. Lawyers are, or should be, good at standing back from a situation and looking at it objectively; this can be a great benefit to a client who is ‘too close’ to the issue.
Not a great outcome when Sir Thomas More fell out with his client, Henry VIII
Part of the lawyer’s skill-set is to provide a good service and work closely with one’s client, while retaining objectivity and a professional set of values. Sometimes, it is impossible to reconcile these objectives and the lawyer either gets fired or suffers professionally. Sometimes, the fall-out is greater. Though the circumstances were all very different, IP Draughts is reminded of what happened to Sir Thomas More, the Enron lawyers, and the most recent, acting Attorney General in the USA. The recent dismissal of the Director of the FBI is in a different category, as the President of the United States was not his client, though by some accounts the President thought he was.
So, IP Draughts would put the ‘faults’ described in the first paragraph into different categories:
- Must try harder. As a lawyer one should try to be responsive, listen hard to what the client is asking for and provide it, communicate well, provide as simple an answer as is possible in the circumstances, and generally try to be user-friendly and provide an excellent service.
- Up to a point, Lord Copper. There may be situations where a lawyer could try harder to fit in with the prevailing values of the client, eg by ditching the suit and tie, or by providing a short memo of advice, subject to caveats, rather than write a long essay. But the lawyer should ensure that this fitting-in doesn’t result in becoming a yes-man on points that matter, as described in the next paragraph. He should also keep in mind whether the person instructing him is reflecting the overall wishes of the organisation that he represents. For example, is that person keen to see the deal go through, no matter what the long term risks to the organisation?
- You say tomato… Increasingly, lawyers are under legal duties to act in ways that their clients may not like, such as reporting suspicions of money-laundering (in the EU) or corporate fraud (in the USA, eg under the Sarbanes-Oxley legislation). These duties are in addition to longstanding legal and professional duties to the court, to uphold the rule of law, to act ethically in one’s personal dealings, and so on. Even if there is no legal or professional duty, a lawyer may serve his client’s best interests by maintaining a degree of objectivity. For example, when advising on the strength of a case, it is very easy to be swept along by the emotions of one’s colleagues; it is important to keep a clear head and be prepared to articulate an unpopular message. In other words, it is not only acceptable, it is sometimes necessary for a lawyer to take a different line to one’s client, and the mindset that goes with these duties is likely to involve a certain degree of distance from purely commercial priorities, though the degree of distance will depend partly on the client. It should be possible to do this with a light touch, though.
In summary, provide a good responsive, user-friendly service. Try not to be too lawyerly. But keep enough distance to be objective and fulfil your legal and professional obligations.