One of the most difficult situations a business lawyer encounters is when a client wants to enter into a deal or relationship that the lawyer believes is a bad one for more than purely legal reasons. After all, the most beneficial and rewarding attorney-client relationships are those where the client views the attorney as not only a legal advisor, but also as a member of the strategic/management team and a trusted confidante. As such, the lawyer is faced with a dilemma – advise the client of the concerns and the reasons for them (which can be risky for the relationship), or simply go along with the client’s wishes and execute the deal while, of course, protecting the client as much as possible. This situation is fresh in my mind, as I have dealt with it in the past week.
In reality, while I agree this is a challenging situation, the appropriate course of action is relatively clear. In my opinion, the lawyer should absolutely share his/her concerns with the client and the basis for them. This should not be done subtly or for the mere purpose of covering the lawyer’s backside in the event the deal or relationship ends badly – rather, it should be done so that the client is fully informed of the attorney’s concerns and can carefully consider them.
Once the attorney has advised the client of his concerns comes the next step – what if the client wants to proceed with the deal anyway? I’ve found that different lawyers take different positions in this situation, but my position is clear – so long as the client’s position is fully legal and ethical and the client is fully informed, my job is to make the deal happen and protect the client as much as possible. After all, it’s the client’s ideas, creativity, risk tolerance and ultimately money that have allowed the client to be successful and that are at risk in any business deal – not mine. Just like the customer is always right, the client is always the one who should make the final decision and bear the final responsibility for a business deal. My job is to advise, inform, protect and execute.