How to Be a Lawyer. Jason Mendelson
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Название: How to Be a Lawyer
Автор: Jason Mendelson
Издательство: John Wiley & Sons Limited
Жанр: Юриспруденция, право
isbn: 9781119835820
isbn:
Example B is the classic potential conflict of you trying to impress the senior partner and the CEO as the junior person while not paying attention to the actual client, the company. You get trapped thinking they are all one in the same. Sometimes they are. Sometimes they are not. The salient point is to recognize that you owe a fiduciary duty to the company, an abstract entity with numerous stakeholders (shareholders, officers, and employees). The CEO and PE firm speak for the company at times, but possibly against it at times, without ever letting you know there's a subtle switch. Be hypervigilant, and always consider whether there is a fiduciary duty in play.
Principle 2: Slow Down
Rarely is speedy decision-making required. Quick thinking, on the other hand, is a regular occurrence, especially for litigators. But even litigators have time to organize relevant facts, step into another's shoes, effectively analyze the situation, and reach a thoughtful decision. More formally, this is called the duty of care, and it's vital to being a fiduciary.
In today's constant communication world, texts, emails, Slacks, and Voxes encourage speed, which tends to reduce thoughtfulness. This is especially true under pressure from clients, bosses, and yourself. The concept of failure being celebrated or encouraged by some ecosystems (like startups) is not an option as a fiduciary.
While we encourage rapid learning and measured risk taking, you don't get a free pass as a fiduciary if you are moving too fast or don't take the proper care on a matter. A corollary is to not get overcommitted. We've all done this, and it often leads to shortcuts. Don't take on a fiduciary relationship unless you can devote the necessary time to it.
Slowing down and taking time also means doing due diligence. Diligence is one of the first tasks any lawyer should do and is a valued skill no matter what your practice area may be. Suffice to say is that figuring out what you know, what you don't know, and where you need help are key aspects to understanding any decision you are going to make on behalf of someone else. Take the time to do it.
Principle 3: Seek Advice and Help
Related to slowing down and diligence is seeking advice and help. While always applicable, this is particularly important when acting as a fiduciary because our egos get in the way of seeking help, especially when it reveals inexperience. You can make disastrous career-ending mistakes by failing to seek help. Heed Principle 2, above: speed often compounds mistakes and makes it more unlikely to seek appropriate advice and help. Take time to seek necessary advice, which in a firm setting is free (even if you have to pay for it, it's worth every penny). If not in a large firm, reach out to your local bar association and your personal network. Maintain connections with your professors in your relevant area. At least Google it, okay? But also don't forget to listen to your stomach that you are in over your head and take action to correct it.
Principle 4: Always Put Your Clients' Interests Ahead of Your Own
This is the single most important principle and solves most fiduciary problems if faithfully implemented. Step into your client's shoes, examine every angle of the situation from their perspective, and determine what is best for her or him. Like Principle 3, this involves checking your ego; like Principle 2, it requires devoting time to the relationship. While acting as a fiduciary, continually ask this question: What would I want an expert to do for me if I was the client? Or put another way, use absolute tunnel vision to analyze what is best for your client. Forget about everything else. Now open up the aperture and ask if anything makes you feel uncomfortable about that vision given the exogenous pressures you have around you. And don't forget that simply the appearance of you acting on your own best interests will likely sink a career or a relationship. Give everything the “smell test.”
While we've tried to teach you a bit about being a fiduciary, remember that not all situations involving clients mean you are a fiduciary. The biggest instance is negotiations around billing arrangements and fees. In this instance, you have no duty to the client (absent of bar ethics considerations) and are free to put your interests first.
In addition, do not fall into the trap that you owe a duty to opposing counsel. Many junior lawyers get lulled into a state where they want to please the other side or not upset them. These conflict-avoidant attorneys need to remind themselves where their real duty rests. It still surprises us how many lawyers fall into this group.
Finally, be careful who you become friends with. Again, perceptions matter. If you are a criminal defense attorney who regularly golfs with an assistant district attorney, realize that this perception may not be appreciated by your clients. Yes, you can claim that a good working relationship is important, but consider optics and how that might be perceived as a potential conflict.
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