Vail Daily column: We do not take orders
August 2, 2015
High-powered persons often think of themselves as generals, deploying legions of soldiers to aid in their business, social or personal conquests. Lawyers rank among these kept warriors, serving a critical advisory and advocacy function. The practice is common in the real and imagined criminal underworld, with the attorney as consigliere or dispenser of misguided advice like Sean Penn as David Kleinfeld in "Carlito's Way." In fictional accounts, these lawyers are like remoras, feeding off the largesse of their patron as they do their bidding with no questions asked. Unfortunately, some clients internalize the habits of the characters they attempt to emulate. They expect their lawyers to jump at every command, regardless of the ramifications or stupidity of the directive. This is the point at which the business person's self-created military analogy meets its timely demise. Lawyers do not take orders and are not subject to court martial for insubordination for declining to engage in activities with which they do not agree.
Treating Underlings Well
The character of a boss is revealed in how their underlings are treated. There are many crazy successful people who recognize that a large portion of their fortune was made possible by the hard work and counsel of their employees and agents. Magnanimous in light of this knowledge, they repay their subordinates in kind, even if simply in that most powerful of currency, the "thank you." Regardless of whether they ultimately follow the guidance of their lawyers, they are keen to make it clear that the advice has been heard and digested. I have been lucky to work with a great many of these types and it is always a true pleasure. To feel included in the team and not simply put upon makes the process worth every arduous second.
The Problem with Megalomaniacs
It is perfectly fine for a lawyer to engage in a course of action that the lawyer does not think is a great idea as long as the client has been properly informed of the risks. The lawyer may come to see the merit of the strategy as time passes. I am often underwhelmed by my clients’ more risky ideas as I tend toward the conservative. As it turns out, I am not always right (gasp!).
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On the flip side are the megalomaniacs. In their mind, every victory is solely theirs and every defeat is to be blamed on anyone else. While there are many very rich megalomaniacs, there are even more who have not attained the heights to which they feel entitled. These failures can be directly attributed to an inability to connect with staff and a refusal to listen to those who are offering wisdom that the boss does not want to hear. Representation of these sorts is a daily minefield and is usually not worth even a princely sum.
The latter group frequently issue ultimatums to their lawyers. It is demanded that the attorney carry out the client's order or else the client will find another lawyer who will do it. There is always a lawyer out there who is willing to skirt ethical rules or implement a foolhardy scheme. Thus, if the current attorney needs the work he or she may feel pressured to comply even as the moral compass points in the opposite direction. This could come at tremendous cost to career, reputation and self-esteem.
Take it or Leave it
A lawyer need not be in agreement with the client in order to effectively perform. If the attorney has given a well-thought out perspective to the client, then the client may elect to ignore that advice. That in and of itself does not spell the end of the representation. It is only when the client's desires or beliefs are approaching the outer limits of reasonableness when the attorney is truly tested. The lawyer must conduct a personal cost/benefit analysis to determine if they are willing to proceed and there are many factors that go into that decision. Money, it is sad to say, is often a chief consideration.
It is perfectly fine for a lawyer to engage in a course of action that the lawyer does not think is a great idea as long as the client has been properly informed of the risks. The lawyer may come to see the merit of the strategy as time passes. I am often underwhelmed by my clients' more risky ideas as I tend toward the conservative. As it turns out, I am not always right (gasp!).
Importantly, it is up to the lawyer to decide whether he or she is willing to move forward. It is a personal decision that is impacted by the client's desires, but not dictated by them. If a lawyer is not comfortable taking a specific path, even if it is the right one, then it is the attorney's prerogative to decline and instead request that the client find someone else to go forward. An attorney should not feel held hostage by the whims of the client. That relationship does not suit either party.
T.J. Voboril is a partner at Reynolds, Kalamaya & Voboril LLC, a local law firm, and the owner/mediator at Voice Of Reason Dispute Resolution. For more information, contact Voboril at 970-306-6456, email@example.com or visit http://www.rkvlaw.com.
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