When not knowing what you don’t know may not be good enough…

How many of you recognise this situation? Your business colleagues contact you for legal sign-off (note depersonalised “legal” not “your”): “It’s straightforward and I need legal sign off so that I can close the deal. My client’s waiting on the other line.” They provide scant information; what they think you need to know.

I don’t need to tell you that, as a lawyer, you can only provide an opinion based on the facts available. And if your advice is wrong, you could expose yourself and your organisation to censure.

But what happens if a client knowingly or recklessly fails to provide crucial information to their lawyers? One section in the recent DOJ damning of VimpelCom for corporate bribery caught my eye (http://www.justice.gov/opa/pr/vimpelcom-limited-and-unitel-llc-enter-global-foreign-bribery-resolution-more-795-million). Apparently certain VimpelCom management knowingly failed to disclose a crucial relationship with a PEP when instructing an international law firm to issue an FCPA legal opinion, which rendered the opinion useless.

I’m not commenting about the role of the international law firm, because I don’t know the details. But it got me thinking about how lawyers generally, and in-house lawyers specifically, can mitigate the risk of unintended incorrect advice through failing to have the full picture?

  1. Stick to your own pace. Don’t be bullied into a rushed answer.
  2. And keep your questions open for as long as possible. Leading questions will get a narrow answer. Let your colleague tell their story in their own words.
  3. And listen without interruption. Listen, really listen. If you listen with the intention to understand not to reply, then you are less likely to miss key information and more likely to pick up the verbal and (if face to face) non-verbal cues that may signify there is more to the situation than is being presented.
  4. And silence that inner voice. I know we are paid for our expertise and experience. But this is not always helpful. Don’t jump to conclusions by looking for a fact pattern that matches your previous experiences. Also, people assign different meanings to words, especially subjective words (like success). Ensure that you have a meeting of minds before drilling down.
  5. And use silence effectively. People don’t like silence. Instinctively, we look to fill silence because it makes us feel uncomfortable. Don’t be the one to fill the silence. Instead allow your business colleague to fill the silence – it could be a crucial bit of information, which would otherwise be overlooked.
  6. And have the courage to ask that question. Don’t be embarrassed to ask the meaning of a phrase or throwaway reference. You may think you will look stupid or less credible. Think what you may risk by not speaking up. Have the courage to challenge something that doesn’t sound right. Ask that all-important question – “Is there anything else that I need to know?”
  7. And create a written record of your understanding of the situation and your advice. This one may depend on your organisation’s policies. And it may seem like overkill, especially to a transactional lawyer used to talking to colleagues on recorded lines. I bet you’ll get a different perspective from a litigation colleague…
  8. Finally, work on the relationship with your business colleagues. I may be naïve, but I believe that very few colleagues set out to deliberately mislead. I met plenty who had a misguided view of the sign-off process and attempted to restrict my role accordingly. And I also met a few (usually junior sales force) who responded to actual or perceived senior or peer pressure by being extremely pushy. And others incorrectly transferred sign-off’s to very different fact patterns.

For me, the most effective means of getting the full picture was by effective communication gained through spending time on building a relationship with my front office colleagues. It’s not necessarily about building a relationship with a view to liking each other. I’ve had more than my fair share of disagreements and heated debates over the years.

But instead, it’s about fostering respect through understanding each other’s perspectives – my business colleagues understanding my role, why I needed to ask the questions, and me understanding the particular pressures my business colleagues faced.

I’m interested in hearing about your tips. What else works for you?