I know, you’re looking at the headline and thinking - where is he going with this? Bear with me because this is important for lawyers and their business clients. The question is how, together, do we avoid the process of seeking and giving legal advice becoming an exercise in futility?
The key that unlocks the door to value here is understanding that we live in a non-binary world. In my experience it is extremely rare in matters of novelty or complexity to find a straightforward “yes’ or “no” legal answer. Yet, it is quite common for lawyers to be asked to “approve” business initiatives or for lawyers to be pressed by a probably harassed and time-pressured client to “green light” a project.
Consider the hypothetical example of the launch of a novel product in a category that has not yet been singled out for specific regulation by governments. There may be laws and regulations for legacy products or products in adjacent categories but there are no direct precedents to guide the advice either way. A lawyer advising in such circumstances is in an awkward position: they undoubtedly want to be helpful but in the absence of laws or regulations or even case precedents which permit the proposed action they are very unlikely to be able to commit with confidence to a “go” decision on, for example, a product launch or a novel marketing initiative. Accordingly, the answer is likely to be “no” (even though there is no precedent to support that view either). While that is perfectly understandable, if left there the outcome is frustration and dissatisfaction for all concerned - the business client seeking to move forward with the project and the lawyer who feels trapped and frustrated at not being able to contribute more creatively to the success of the business.
These situations are a golden opportunity for a relationship reset and for lawyers to demonstrate their capacity to enable. That starts with a reformulated question to the lawyer. Rather than “please can you approve this (now)?”, the question might be: “here is what we would like to achieve, please can you advise on how I can secure this objective and the related risks?”. It will also be important to understand the client’s appetite for risk (within the boundaries of legal and ethical behavior, of course) as there will likely be a spectrum of options which entail different levels of risk. This reformulation and related discussions should allow the lawyer to demonstrate value, including business acumen, by proposing a go forward strategy which transparently outlines the risks and the likelihood that those risks will materialize.
In short, we can avoid futility and foster personal development by embracing novel and complex legal challenges as partners to enable business success.
Comments