- The relationship between the attorney and the client needs to operate under specific concerns. Don’t begin by asking abstract questions such as, “Am I legal?” or “Can I be sued?”
- Your attorney needs to know all relevant issues. What might seem like throwaway facts to the client are often most important to the lawyer.
- The conversation between attorney and client needs to focus on risk allocation. Contracts are about clarity, not absolute certainty.
- Lawyers live in a gray world, and they know that the law does not provide the black and white parameters that clients desire.
When you go to the doctor for a routine checkup, do you start the exam by asking the doctor, “Hey Doc, am I going to die?” Of course not, it is a throw away question that is either paranoid or moronic or both. You are, of course, going to die, but hopefully no time soon, and the doctor is not focused on immediate life preservation. The doctor’s focus is on making sure you are healthy; performing tests to make sure everything is functioning correctly and balancing the cost of testing for certain diseases and conditions with the relative chance that they will manifest themselves.
Similarly, when you work with a business attorney, your initial question should not be -– “Am I legal?” or “Can I be sued?” These questions are overly broad and give an attorney license to spend an enormous amount of (billable) time running down every conceivable risk to your enterprise. You can always be sued, and the client (with the exception of specific regulatory questions) should know whether or not they are operating legally.1 You do not need to ask a lawyer whether driving under the influence of alcohol is a crime; similarly you don’t need to know whether or not your business is operating legally.
The relationship between the attorney and the client needs to operate under specific concerns, not vague fears. The client should say: “I have this concern” or “I have this specific problem.” When describing the problem or issue, the businessperson should be concise while also giving the relevant facts. A lawyer does not need to hear about your entire life, the story behind everything, or what your childhood dreams were, particularly when a lawyer is charging by the hour.
On the other hand, the attorney does need to know the relevant issues. If the parties have shaken hands on proposed documents but not signed them, the attorney needs to know. If a party has not paid, the lawyer needs to know. Often these throwaway facts to the businessperson are the most relevant information for the lawyer. This is, again, a hard judgment to make -– to give too much or not enough information. However, it is nothing more than is expected in the course of developing business, where clear communication, time allocation and prioritization separate good business people from bad.
The conversation needs to focus on risk allocation, not absolute certainty. Contracts are for both (not one) parties’ protection. But more than protection, contracts are about clarity, specifically clarity around risk allocation — which party is undertaking what liabilities. As a consequence, an attorney cannot protect a client from the risk associated with the contract; an attorney can only explain who owes what duties to another.
Additionally, clients need to understand that attorneys cannot easily provide firm legal opinions. This inability is somewhat perplexing to clients. You are, of course, going to attorneys to learn what the law is. Unfortunately, and I believe that this is the source of a lot of frustration on behalf of clients, lawyers are very hesitant about saying with certainty how a court or parties may interpret terms or act. Lawyers live in a gray world, and they know that the law does not provide the black and white that clients desire. As a consequence, lawyers are reluctant to take firm stands, and they continually equivocate when they talk.
Unless the client wants to significantly increase his or her legal tab, there is no need to force an attorney give a firm legal opinion. If the legal opinion is worth anything, it will take a good deal of time and effort and will be watered down. An attorney knows that when he or she gives a legal opinion, they are effectively providing an insurance policy against a bad outcome in a court of law. In some instances, these opinions are acceptable. But in small business, firm opinions are rare. Firm opinions are like insurance, and unless you want insurance, you should not ask your attorney to provide it.
- Be concise with your attorney, but also be completely relevant and candid.
- Do not look for absolutes; look for clarification about risks.
- Realize that lawyers’ clairvoyance into the future is no better than yours.
- Let lawyers be lawyers; don’t make them give you firm opinions.
Goodrich Firm, LLC
1 In my opinion, the businessperson should generally know the regulations applicable to his or her particular business. For example, an accountant should know and be aware of the licensing of accountants without assistance by an attorney. An attorney can help work through a specific regulatory situation or if a new business activity is engaged in can help address possible regulatoryconcerns. However, I believe that a business must be able to internally handle regulatory issues routinely faced in their particular industry.