Sometimes lawyers will try to find a way to creatively lawyer their way around an issue that stands in the way of a decision they wish to make. For example, during a CLE event, two lawyers in attendance tried to convince me that my position on the resolution of conflicts of interest was wrong. They boldly declared there is no such thing as a nonconsentable conflict because, in their opinion, creative lawyering can solve any and all conflict problems. They’re wrong.
I’ve also had lawyers try to convince me that there is no such thing as an unreasonable fee. The argument often goes something like this. If a client knowingly and voluntarily agrees to a fee, the fact that the fee was agreed to will be what makes it reasonable. Nope. The fact that someone foolishly agrees to an excessive fee matters not one iota.
I share these stories because creative lawyering can bring about serious unintended consequences, to include ethical violations, legal consequences, and/or the erosion of client trust. Let me share one additional example to further explain why.
A lawyer contacted me with the hope of having me give her my risk manager “seal of approval” on her effort to lawyer her way through an engagement she’d like to say yes to. In short, a prospective client had previously worked with a lawyer who practiced securities law. This individual now wanted to retain a different lawyer to do some follow-up work knowing this new lawyer’s fees would be less expensive. All the prospective client wanted was to have this new lawyer prepare and submit a form to the SEC that relied on the work product of the original securities lawyer. Now, it’s important to note that the lawyer contacting me was not a securities lawyer and she had no desire to put herself at risk for her potential client’s security law compliance.
To try and solve the problem, this lawyer was hoping that a limited-scope engagement letter stating she would be happy to do the legal work as long as the client would expressly agree that she would not be providing any legal advice regarding securities law would suffice. I’m thinking, “wait, the proposed language in this agreement is basically saying she’ll agree to do the requested legal work as long as the client agrees not to hold her accountable for any of the work she does.” I’m sure it comes as no surprise that my risk manager seal of approval was never forthcoming because this lawyer was wanting me to say it’s fine for her to creatively lawyer her way around her ethical obligation to provide competent representation when it isn’t.
Hear me clearly. I’m not trying to say lawyers should never think creatively. Sometimes creative thinking really can be what leads to finding that elusive solution to a client’s complex legal problem. My concern, however, is when creative lawyering needs to be brought into play, often in order to get around an ethical issue that’s getting in the way, you’re asking for trouble should you start down that path. If you ever find yourself in that kind of situation, stop, just stop. Take whatever time is necessary to try and determine why it is you feel a need to turn to creative lawyering in order to move ahead. Only then will you be able to determine if there is a rational, responsible, and ethically permissible way to move forward; because all I can say is in instances like this, creative lawyering is never going to be an acceptable solution.
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