Some things make my blood boil. Consider these quotes from Part 4 of Pam Woldow’s recent 4-part series, Cutting Corners (Part 1, Part 2, Part 3, Part 4). The series discusses whether use of Legal Project Management and Legal Process Improvement encourages lawyers to cut corners. Part 4 includes reader feedback and Pam’s response to certain arguments raised by her readers.
There was a discussion about whether inside lawyers or outside lawyers should be the one responsible for weighing risks against cost. According to one General Counsel,
We, and only we, should determine acceptable risk because we are the experts on our companies and business strategies. Our company takes risks every day, and we understand how to evaluate when to dig deeper and when it’s time to move on. When we don’t want more research or memos or depositions, we have made internal decisions about cost and benefit.
It is hubris for any outside lawyer to believe anything different, nothing less. It is the client’s legal problem. It is the client’s money. That anyone other than the client should decide how to address the legal problem and spend the money misunderstands the client’s primacy in the lawyer-client relationship.
As Pam reports, outside counsel uncomfortable with the client’s primacy resorted to the well-worn “malpractice risk” argument. It goes something like this: “I, the outside lawyer, need to do x, y and z because my malpractice carrier says so or because I will be at risk of being sued for malpractice if I don’t.” Put aside that few clients ever sue for malpractice. Put aside that clients willing to take risk understand they must accept the risk associated with their decisions. Put aside that no malpractice carrier ever—ever—said a lawyer must turn over every stone and milk their client for every last dollar. Put all those things aside. If a lawyer is uncomfortable with the client’s decisions on risk, then he or she should quit. They have no obligation to represent a client.
Let me be clear. Rule number 1 of being a lawyer is that the client gets to decide. They get to decide scope of work, they get to decide what risks are worth taking. They get to decide how a matter should be staffed. It is hubris to suggest that, as an outside lawyer, your views on these matters should govern the client. Rule number 2, by the way, is that if you don’t like how the client decides these things, you are free to not represent the client.
Quick story: I was national counsel for a client and we had 50 nearly identical cases in one jurisdiction. When a motion was filed, it was filed in all 50 cases. Same motion. My client’s local counsel would dutifully bill for each case. “Review motion to substitute attorneys–.2” in all 50 cases. That meant the lawyer billing 300 minutes—5 hours—for reviewing each motion. When I told the lawyer to combine all the cases into one matter and review only one motion and simply take on faith that all 50 of such routine motions were identical, he argued his malpractice carrier required him to do it in this manner that caused him to rip-off his client. I asked for the name of the carrier, which he declined to provide. When I called him back the next day to tell him where to send the files, he professed shock and disappointment and wanted a do-over. Fat chance, my friend.
Clients get to decide. It has always been true even though some lawyers may have forgotten. But it is more true now than ever before, and clients get it. The clients who may not have understood this now do. If you don’t like this paradigm, find a new profession.