Legal counsel often say they merely point out the risks, and the business makes a decision to proceed. We remove ourselves from the responsibility of making decisions. This is unrealistic, and reduces the value of legal advice. Lawyers don't just point out risks, we have a hand in guiding decision makers to the right decisions, or even making some decisions.
Stay in your lane - are we qualified to make decisions?
Keeping out of decision making is sensible when considering specialisation. We may not be aware of all the considerations, and what risks are acceptable. Nor are we trained in business. However, in reality, the decision maker may not be fully aware of all considerations or be formally trained either.
Our true value comes from those decisions. Legal advice is qualitative, it is more an art than a science. Advice is termed in "likely" or "possible", rather than numbers and statistics. It is hard for end users to properly apply it to make decisions. All advice includes countless judgement calls, micro-decisions, gut feels, and estimations that cannot be easily captured. In the spirit of specialisation then, we should share our experience of what might be a good decision. This is the true value-add that we provide. Most top lawyers end up doing this off the record, to provide that extra value to their client.
We pretend to be distant and objective because we are afraid.
We maintain this illusion of distance and objectivity merely because we are afraid of being blamed for wrong decisions. We want to preserve that pristine image of always being smarter, that we are "never wrong" since we did not decide.
This fear makes us overly paranoid, and also reduces the value of legal advice.
The truth is, we are always making decisions when we advise. Whether consciously or unconsciously, we frame things to lead users to the conclusions we think are best. We drag our feet and raise barriers when we think an idea is stupid, but are faster to work on what we think are good ideas. These are all subtle exercises of discretion, judgement and decision making that are not transparent. The user cannot see these nor have a fair chance to negotiate with us or understand our viewpoint. Being clear, taking a stand, and having some skin in the game, creates conviction in our views, they become more persuasive and useful.
Should we be so afraid to put ourselves out there, and have this vulnerability?
For an external lawyer, with less information on the client, and higher responsibility, the caution is warranted. Professional responsibility rules need to adapt before they can change how they work.
However, for the in-house lawyer, being scared of being blamed is irrational. Leadership exists to take responsibility, and are hired and paid for their ability to synthesis various advice to make a decision. If the organisation is one where these decision makers could shield themselves with the legal team, and the senior management cannot see past this, then I would question their business acumen, and wonder if I am in the wrong place.
Law is not so magical that we dispense wisdom from our high towers
Lawyers are no longer some magical creatures who cannot be argued with, and whose every word must be listened to so preciously. Laws are so wide and complex that most lawyers can't know every rule and its application. We rely on context and ideas from the users themselves, who often point out relevant legal points too. We recognise the value of diverse viewpoints in our work, but don't dare to offer our own.
We accept other views about law. After all, law touches on everyone's life. Business is different, there is no professional training or special qualification. Business is general. Some people might have more knowledge about it, but it is not exclusive. As such, multiple view points can be valid and useful.
A good organisation would know it is a question of weight, a view on legal issues by the head of marketing is valid, but perhaps has less weight than the legal team. Likewise, a view by the legal team on business decisions is also valid, but has less weight.
Moving forward
As an industry, we first need to communicate better. We must educate our users and make it clear where our expertise starts and ends, so that they can accord the appropriate weight to our statements. We also need to grow a spine, to stand up for ourselves when something is not our fault. Handling accusations is our skillset, why do we shy away from it so much. We also need to grow that spine collectively, to change the rules to make professional responsibility clear.
Stay in your lane - are we qualified to make decisions?
Keeping out of decision making is sensible when considering specialisation. We may not be aware of all the considerations, and what risks are acceptable. Nor are we trained in business. However, in reality, the decision maker may not be fully aware of all considerations or be formally trained either.
Our true value comes from those decisions. Legal advice is qualitative, it is more an art than a science. Advice is termed in "likely" or "possible", rather than numbers and statistics. It is hard for end users to properly apply it to make decisions. All advice includes countless judgement calls, micro-decisions, gut feels, and estimations that cannot be easily captured. In the spirit of specialisation then, we should share our experience of what might be a good decision. This is the true value-add that we provide. Most top lawyers end up doing this off the record, to provide that extra value to their client.
We pretend to be distant and objective because we are afraid.
We maintain this illusion of distance and objectivity merely because we are afraid of being blamed for wrong decisions. We want to preserve that pristine image of always being smarter, that we are "never wrong" since we did not decide.
This fear makes us overly paranoid, and also reduces the value of legal advice.
The truth is, we are always making decisions when we advise. Whether consciously or unconsciously, we frame things to lead users to the conclusions we think are best. We drag our feet and raise barriers when we think an idea is stupid, but are faster to work on what we think are good ideas. These are all subtle exercises of discretion, judgement and decision making that are not transparent. The user cannot see these nor have a fair chance to negotiate with us or understand our viewpoint. Being clear, taking a stand, and having some skin in the game, creates conviction in our views, they become more persuasive and useful.
Should we be so afraid to put ourselves out there, and have this vulnerability?
For an external lawyer, with less information on the client, and higher responsibility, the caution is warranted. Professional responsibility rules need to adapt before they can change how they work.
However, for the in-house lawyer, being scared of being blamed is irrational. Leadership exists to take responsibility, and are hired and paid for their ability to synthesis various advice to make a decision. If the organisation is one where these decision makers could shield themselves with the legal team, and the senior management cannot see past this, then I would question their business acumen, and wonder if I am in the wrong place.
Law is not so magical that we dispense wisdom from our high towers
Lawyers are no longer some magical creatures who cannot be argued with, and whose every word must be listened to so preciously. Laws are so wide and complex that most lawyers can't know every rule and its application. We rely on context and ideas from the users themselves, who often point out relevant legal points too. We recognise the value of diverse viewpoints in our work, but don't dare to offer our own.
We accept other views about law. After all, law touches on everyone's life. Business is different, there is no professional training or special qualification. Business is general. Some people might have more knowledge about it, but it is not exclusive. As such, multiple view points can be valid and useful.
A good organisation would know it is a question of weight, a view on legal issues by the head of marketing is valid, but perhaps has less weight than the legal team. Likewise, a view by the legal team on business decisions is also valid, but has less weight.
Moving forward
As an industry, we first need to communicate better. We must educate our users and make it clear where our expertise starts and ends, so that they can accord the appropriate weight to our statements. We also need to grow a spine, to stand up for ourselves when something is not our fault. Handling accusations is our skillset, why do we shy away from it so much. We also need to grow that spine collectively, to change the rules to make professional responsibility clear.