How to Recognize When Rationalizations and Creative Lawyering Aren’t the Answer
I’ve heard all kinds of crazy comments from lawyers over the years. For example, during a CLE event with a state bar’s ethics counsel sitting next to me on a speaker’s panel, two lawyer attendees tried to convince others in attendance that the panel’s position on conflict of interest resolution was clearly wrong. They stood up and boldly declared there is no such thing as a nonconsentable conflict because, in their opinion, creative lawyering can solve any and all conflict problems. The panel and I were almost speechless. We were looking at each other and asking how in the world could the same lawyer ever represent adverse parties in a litigated matter just for starters. My response to the panel was “wow, just wow.” I was also thinking to myself “I sure hope we don’t insure these guys.”
I’ve also had lawyers try to convince me that there is no such thing as an unreasonable fee. The argument is always the same. If a client knowingly and voluntarily agrees to a fee, even one that many would view as clearly excessive given the specifics of the situation at hand, the fact that the fee was agreed to will be what makes it reasonable. Wrong again. Trust me. If and when bar counsel comes to investigate whether a fee in question was reasonable, this individual will make up his or her own mind on that particular issue. The fact that someone foolishly agreed to a clearly excessive fee matters not one iota.
I bring all this up because lawyers can and do sometimes try to rationalize their way around a decision they would otherwise have trouble defending or they try to creatively lawyer their way through an issue that stands in the way of a decision they wish to make. Both approaches can bring about serious unintended consequences, particularly if there is an ethical issue in play. Let me share one additional example to further explain why.
A lawyer contacted me with the hope of having me give her my risk manager seal of approval on how she was trying to creatively lawyer her way through an engagement she’d like to say yes to. In short, the prospective client had previously worked with a lawyer who practiced securities law. However, in order to save on legal fees, this prospective client now hoped to retain the lawyer who was contacting me to do some follow-up work because this lawyer’s fees would be less expensive. All the prospective client wanted was to have this new lawyer prepare and submit a form to the SEC that relied on the work product of the original securities lawyer. Now, it’s important to note that the lawyer contacting me was not a securities lawyer and she did not want to put herself at risk for her potential client’s security law compliance.
To try and solve the problem, this lawyer wanted to draft a limited scope engagement document that basically said she would be happy to do the legal work as long as the client would expressly agree that she would not be providing any legal advice regarding securities law. In my head I’m thinking, “wait, the proposed language in this agreement is basically saying she’ll agree to do the requested legal work as long as the client agrees not to hold her accountable for any of the work she does.” I’m sure it comes as no surprise that my risk manager seal of approval was never forthcoming because this lawyer was wanting me to say it’s fine for her to creatively lawyer her way around her ethical obligation to provide competent representation when it isn’t.
Please hear me clearly. I’m not trying to say lawyers should never think creatively. Sometimes creative lawyering really can be what leads to finding that elusive solution to a client’s complex legal problem. My concern, however, is when creative lawyering and/or rationalizations are brought into to play to bring about a benefit, particularly a financial benefit, to you as the involved lawyer. What do you need to do here? You need to stop, just stop. Take some time to try and determine why it is you feel a need to rationalize or turn to creative lawyering in order to move ahead. Perhaps you’ll come to identify an issue, often an ethical issue, that’s behind the problem. Only then can you seek to determine if there is a rational, responsible, and ethically permissible way to move forward; because all I can say is in instances like this, rationalizations and creative lawyering often aren’t the answer.
Authored by: Mark Bassingthwaighte Risk Manager
Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 550 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.