A Lawyer Responds…
After writing my post about the fear of lawyers that is so risky for charity leaders I asked my friend, lawyer Ian Brisbin for his take. He graciously took time to write his thoughts which I share here:
Chris Wignall’s timely blog post entitled “Above the Law” buttressed my own views on working with lawyers. I have experience on both sides of this relationship as a practicing lawyer of over twenty years and as a director of various not-for-profits, non-profits and registered charities amongst other capacities.
“The lawyers told me so” isn’t a defence of, or an excuse for conduct we might choose to engage in. It may, however be the reason for it. Chris rightly points out that although we seek legal advice, the client remains the decision-maker. It or they must reconcile their actions with their legal obligations and their own organizational values. Lawyers give legal advice, but not always business advice and rarely if ever ethical or values-driven advice.
It must be noted that the lawyer-client relationship will differ based upon not only upon the area of the law, but also the relative sophistication of the client. Sometimes a client merely seeks advice of their legal obligations whereas in other situations issues need to be identified and the client equipped to choose between many options it may have. In my own personal injury law practice, which is direct to the public, I always reinforce that the relationship is simple: “I advise, you instruct.” That said, I know that most every client of mine is (thankfully!) new to litigation, is seeking my guidance and is both relying heavily upon my advice and more likely to follow it than an institutional client might.
That said, without a long-standing relationship, your organization's values and appetite for risk may not mirror those of your chosen counsel, and that's okay. It’s important to remember and account for this potential divergence in your decision making.“What would you do?” is rarely the right question.
It is a fundamental part of any lawyer’s job to ensure the client understands the advice they’ve received and is aware of the potential consequences of following, or not following that advice. This is akin to the doctor’s obligation to obtain informed consent from a patient before undertaking a course of treatment. There are, however some situations in which a lawyer may be ethically duty-bound or simply wise to terminate the retainer with a client who chooses not to follow legal advice.
My experience on both sides of the lawyer-client relationship has taught me it is always best to seek at least preliminary advice early. “Penny wise pound foolish” is an operative phrase as is “pay me a little now, or a lot later.” As we all know, yet constantly need to be reminded, the outcome is rarely as bad as the fear that precedes it. The sooner you get legal advice the better, not only so you can understand whether cause for concern exists, but also because with early legal intervention, a problem may be able to be avoided altogether.
Chris is right: lawyers can sometimes be expensive, and ought to be accounted for no differently than any other significant contingent liability must be in the budgeting process. Any good lawyer will make sure you understand your options, and their implications. Don’t just accept the advice you receive without understanding the potential consequences of each of the options available to you, if more than one exists. You are entitled to plain language explanations.
Finally, lawyers are often highly sought for membership on volunteer boards of directors. My role as the lawyer director at a board table is to identify issues, and NOT to give legal advice. Part of the value lawyers on your board may offer is to know whom to ask for a formal legal opinion on a given issue.
Lawyers ought not be feared any more than any other consultant a charity may retain. Think of us as being like a dentist. You may not look forward to meeting with us, but doing so early may avoid a lot of pain, the need for emergency decisions to be taken from fewer options, and the large unexpected expense which often accompanies a late, crisis intervention.