I’m spreading my criticism widely here: Lawyers both in-house and out are often guilty of the sin I’m describing today.
Look: When people ask for legal advice, they need legal advice. They don’t need to hear from empty conduits through which information passes unfiltered by a human brain.
What’s today’s lesson? When asked for legal advice, give useful advice. Don’t regurgitate silly nonsense that doesn’t help anyone.
Let me give two specific (but fictionalized) examples, both analogous to real-life situations, and which give a sense of the broader issue.
Example number one: A regulator raises a concern about some statement that your company has made repeatedly or some product that you’ve sold widely. A business person — or another lawyer, or any living human being, for that matter — asks you, reasonably enough, “What’s our likely exposure in this matter?”
At this point, many lawyers turn off their brains and give the terrible, horrible, no good, very bad legal advice . . . .
What is the legal advice drawn from Alexander’s terrible day?
“Our exposure is 42 gazillion dollars. The statute authorizes a fine of between $500 and $3000 for every unlawful incident. We ran the suspect advertisement in USA Today for two weeks — ten weekdays. USA Today has a circulation of two million. Ten days times two million times a fine of $3000 per violation means that we could be fined $60 billion. And we ran the ad in a few other papers, too, so I’m rounding up to $42 gazillion.”
At which point the business guy grabs his chest and collapses to the ground.
Or, to prove that my fictitious hypo picks up many situations: “We sell this product to the public generally. We sell millions of ‘em every year. We could be fined between $500 and $3000 for every violation. And the regulator is insisting that the government is entitled to equitable tolling of the statute of limitations, so I can’t tell you how many years worth of sales are in dispute. I estimate our maximum potential liability at $42 gazillion.”
Come on! The kid down the block could do silly arithmetic and give an unhelpful answer. But we don’t employ you (or retain you as outside counsel) so that you can act as an empty conduit between the statute and our ears.
What will the follow-up questions be after you’ve given your $42 gazillion opinion (that’s not worth a dime)?
“What’s the amount of the typical fine this regulator has imposed in similar situations?”
“Twenty or thirty thousand dollars.”
“In the history of the world, what’s the largest fine this regulator has ever imposed on anyone?”
“Uh . . . . Well . . . . $100,000.”
Right. So this is what your legal advice was supposed to be, unprompted: “We face a theoretical maximum exposure of $42 gazillion, but the regulator has never imposed a fine remotely approaching that amount in the history of the world. The largest fine the regulator has ever imposed is $100,000, and a typical fine is more in the range of a few tens of thousands of dollars. We might expect to get hit for thirty grand or so.”
At which point the business guy snarls, “Why are you bothering me with this penny-ante crap?”
But at least you’re not watching paramedics hovering over him and shouting, “Clear!”
Here’s my second example of terrible, horrible, no good, very bad legal advice.
“When can we expect the appellate court to decide the case?”
“I can’t tell you. There’s no rule that requires the court to rule by a certain date, and different judges take different periods of time to issue their opinions. There’s no answer to your question.”
What would you be advising if you were in fact a lawyer, rather than a character in a children’s book having a terrible, horrible, etc., day?
“We’re filing our opening brief on Friday. Assuming no one asks for extensions of time to file briefs, briefing will close in June. This appellate court typically sets argument about 90 days after briefing closes, so we’ll probably argue the case in September or October. At that point, things get unpredictable. We could get a decision the day after argument or we could wait years for a decision. But this is only a moderately complex appeal, and this court typically decides cases within two or three months after argument. So we’ll probably get a decision in Q4. Don’t call me a liar if we hear late in Q3 or not until Q1 of next year, but pencil it in for Q4, more or less.”
It’s grounded in experience and judgment, and it’s what everyone needs when they talk to you.
Don’t be an unthinking conduit. Don’t be like Alexander. Give your clients wonderful, beautiful, very good, useful advice!
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at firstname.lastname@example.org.