Last week, I was casually strolling the hallway of my office building, when I was pulled into a meeting.
Meeting is probably even too official of a term for the gathering I was asked to join. Rather, it was a couple of my non-legal colleagues with whom I regularly get lunch, swap stories of our families, and even share our respective weekend plans. It was certainly a friendly group and a very informal setting.
They had been discussing whether a current business practice was in line with an old state regulation on the books. As with most in-house calls, there was no bright line answer. No authority had weighed in on the matter. And as it was a regulation specific to our state, there was no help from a neighbor state or other jurisdiction.
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Like many a regulation on the books, this one was implemented dozens of years ago and well prior to the business practice in question even being technologically feasible. And this particular business practice also happened to have a rather sizable positive financial impact to our organization.
Both of my colleagues had conducted extensive research into the matter, debated the various shades of grey the issue presented, and arrived at the conclusion that our practice was permissible under the dated regulation.
This is the sort of scenario every attorney dreams of.
An issue of first impression.
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You can quite literally make up your answer as you go along with minimal supporting authority. Heck, even a well-developed hypothetical may be enough to win the day.
Which of course I could not resist the opportunity to do with my current group. Mind you, I had done no research into the matter and was not even familiar with the operations of the current business practice, but I decided it would be fun to make up a hypothetical up on the fly.
After I relayed my scenario, they both nodded along at its plausibility, and I walked out of the meeting less then three minutes after I entered the room never to consider the matter again.
That is, until the next day — when I was pulled into another meeting, this one a bit more formal, with a very harried executive who demanded to know why I decided to stop one of his team’s current operations.
I honestly did not have the slightest idea what he was talking about. I strained my brain to recall the last time I had even reviewed anything under his purview and drew a blank.
I immediately pleaded ignorance and asked for more details, which drew his snarky retort that I was in the meeting only yesterday, where I debated the remote possibilities of what could go wrong, and had spooked the others in the meeting enough that they decided to suspend his practice.
This was clearly news to me. In my mind, there was simply no way anything I could have contributed in the informal meeting would be interpreted as my having exercised legal’s veto power.
Yet that is precisely what happened.
To me, what was good-natured, hypothetical fun that we attorneys relish was enough for them to think I had vetoed the idea and to immediately suspend the practice.
On one hand, I was shocked. Shocked that anyone would actually listen to legal in the first place, and shocked that they thought I even had that sort of power. On the other, I could see how an in-house counsel weighing in on a matter with a hypothetical that directly contradicted their conclusion could be enough for them to think I disapproved of their plan.
I immediately cleared up the misunderstanding and told him he could resume his practice, but was left feeling like a fool with the overused words of Aunt May echoing in my mind, “With great power comes great responsibility.” Albeit a lesson I had to learn the hard way.
While we as lawyers view the trading of hypotheticals as witty banter, our non-legal colleagues just might take them as binding gospel.
Stephen R. Williams is in-house counsel with a multi-facility hospital network in the Midwest. His column focuses on a little talked about area of the in-house life, management. You can reach Stephen at [email protected].