Shall we tell the clients only what they love to hear?

One of the high points in the professional life of a lawyer is when he comes up with a cerebral or a simple solution to a client’s seemingly intractable problem. You feel like an athlete who has won a gold medal. A client once said to me: “I think we should change your name to (whatever)” in the height of his amazement on one of those rare days when brilliance sat next to me and gave me guidance.

Conversely, there are those valley days when you have to – tongue in cheek – tell a client to do something they really hate to do. In a commercial world like ours it all translates to dollars and cents and it is a hard blow. Playing this role is not a lawyers’ best stage performance but we often act it out gallantly, albeit in a state of helplessness.

As you brace yourself to write this “We regret to inform you” letter or have this stiff conversation with the client, several thoughts are bound to cross your mind:

Firstly, you wonder if you have thought this through, leaving no stone unturned. Could there really be a solution that we did not find? Along those lines, you will surely consider that your dearest client may seek a second opinion from a competing law firm. What if some legal juggernaut cracks the safe somewhere else? It is a legitimate apprehension which may see your client opting for another bride. However if you have dutifully conferred with other lawyers within and outside your firm, this fear pales a bit more. At any rate, can you claim to know it all?

Second line of your criss-crossing thoughts will be that the client may suggest bribery or graft. This would usually come by requesting that we pay off the other lawyer - and some lawyers have renowned ambidexterity. Or that we “reach” the judge – if indeed as the phrase goes “the judge is reachable”. Or several other known situations.

Third bent to your thought process is that the client may propose a “self help” project. This could include the use of conspiracy, blackmail, hirelings from the Police, or Customs and Immigration forces or even the Army. What about document forgeries and backdated filings at the Corporate Affairs Commission? And others too numerous to mention…….?

It is no news to any practising lawyer in Nigeria that several clients would propose and indeed find irregular solutions to desperate problems. It is also no news that some of these methods are proposed and sponsored on “the floor of the house” by the lawyers themselves.

Despite the “options” canvassed above, there are still times when a lawyer needs to “advise” a client to throw in the towel. What is the best way to break such news?

1.                  Call for a meeting or write?

When your brief is to provide a legal opinion, then you invariably have to write one. What a struggle it is to write an opinion that tells your client exactly what he does not want to be told. It is even compounded by the fact that at the end of your tell tales, you attach an Invoice “for services rendered”. Client wonders – What services? Indeed we all walk that road from time to time. In all cases, it is advisable to have an eye to eye (meeting) with the client as a follow up on your “bad news” letter or write a follow up letter after the meeting. Documenting such an opinion is indeed best practice all over the world.

2.                  Weigh the options together.

One of the best therapies for the client in such a situation is to write down on a flipchart or paper all the possible options and ask your client to add to that list if he has any thoughts. Then at the meeting jointly weight the pros and cons of each option being mindful the short, medium and long term ramifications. When you are through with this, it feels like a joint decision and not just the lawyers’ advice.

One lawyer once told me his experience when a client suggested a bribe to a High court judge as one of the options. He told the client to be prepared to bribe his way through the 3 Justices of the Court of Appeal and all the Justices of the Supreme Court. After which the likelihood of his losing is very high and the court will invariably grant statutory interest on the claimed sum. Therefore, by the time the case is over the debt will be compounded. When they jointly punched the calculators - adding legal fees and expenses to the sum - it did not look very good. That decision was not hard for the client himself to take: Let’s settle this matter!

As an aside, I once heard a story from a senior lawyer reporting his encounter with a particular judge and he said the judge told him that a good lawyer is one who considers the pecuniary interest of the client, the judge and himself (the lawyer.) Amazing!

3.                  Add a dose of reality.

There are several realities that are peculiar to systems all over the world. In Nigeria, one of them is that a foreigner is vulnerable when he crosses certain battle lines with a Nigerian of influence who uses his influence masterfully. Unless it is absolutely necessary, I will avoid setting up my client for such a battle. Another is the reality that the actual definition of “near impossible” is attempting to enforce court judgements against State or Federal Governments in Nigeria. The best you would get is a benevolent dictator who accedes to honouring the judgement usually for extraneous reasons.

Conclusion

My opinion is that the clients invariably have enormous respect for lawyers who tell them what they should be told even when it is not music to their ears – and therein lies the dignity in being “learned”.