Written advice

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We live in a world increasingly comprised of what Lorraine Daston would call “thin” rules — specific, formalistic, algorithmic micro-rules designed for literal and measurable compliance. Contrast these with “thick rules”, which are generalised principles requiring comprehension, judgment and balance. “avoid conflicts of interest”. “Treat your customers fairly”.

It is part of JC’s ongoing mantra that as we surrender ourselves to the deterministic dogma of scale wherein we can and should be managed by algorithm — where we trust the deterministic predictability of algorithms and distrust the ineffable, unjudgeable metis and human experience — not measurably “fair” in the sense of even and predictable — we lose something very important.

Anyhow.

The problem is that thick rules do not reduce themselves conveniently into thin rules, as our literature never tires of reminding us: this is the essential moral of any story in the “be careful what you wish for” genre: Aladdin and his lamp, the sorcerer’s apprentice; anything in which the protagonist takes a lazy shortcut to achieve a comfortable end.

While they are meant to be deterministic and clear, the practical thin rules will inevitably be dispersed across various sources: legislation, promulgated regulations, previously decided cases, public guidance, common law principles, and analogy to the European regulation from which the rule was originally derived and in some case woodenly translated.

Now, nowhere is more beset with thin fiddly rules than the financial services industry. The JC has a theory that the financial services industry has evolved as a means of interpreting rules, and not vice versa. There is some irony that those who make the rules are generally not prepared to say what they mean, so if one wants to know, one must seek the, well metis, of one who holds themselves out as an expert and who is, for a fee, prepared to say. A lawyer. Having a kind solicitor sort all that out and some it up in a memo is a price worth paying!

Now, no thoughtful client brings such a question to a lawyer without also having in mind a preferred answer to it. Something along the lines of “it is fine for me to do/not do this,” depending on the commercial implication.

The client may not be realistic in that aspiration. An in-house lawyer may know perfectly well it is a fruitless exercise but will do it to get her salesperson off her back. This is a poor use of legal counsel, but we should not fool ourselves it does not happen. But most of the time there is room for doubt.

For good commercial lawyer, there are obvious rules of engagement here — but the world is beset with poor commercial lawyers.

The first is this: bear your client’s desired outcome in mind. If you do not know it, ask.

The proposition is usually:

“I wish to be able do Y. There is a new Regulation X on the topic of Y. To our mind, Regulation X is ambiguous. It could be interpreted to mean A or B. If it is A, then we can do Y. If it is B, then we cannot. What is your advice about Regulation X? Can we do Y?”

Now, private practice lawyers, listen up. How you respond to this question depends on what you think the answer is. But imagine you are a dentist welcoming a new patient to your surgery.

You are sure you can

Let us say you are confident there is an easy answer, and it is, “yes, you may do Y”.

First thing: tell your client this. Orally: let them know you can give them the answer they want, and in a short time frame and for a sensible price, you will prepare a memorandum of advice that they can use for internal approvals, arse covering and plausible deniability — the sacred quest of the inhouse lawyer.

Lawyer can then go away, greenlight the business to get cracking, and your memo can follow in due course.

Only do this if you are really confident you can give a clean answer. There is nothing worse than legal advice that does not come up to brief.

You are sure you cannot

If you are sure the easy answer is, “no, you may not do Y”. Then tell the client, explain your reasoning orally, and then put the phone down and close the file. You might make a telephone attendance note recording your advice for the file — this is to cover your arse, should the client subsequently dispute it — but you should not put your negative advice in writing. The simple reason for this is that it every time you put pen to paper it costs your client money, and no-one wants to pay extra for written confirmation of bad news you have already given them.

But there is a deeper epistemological reason — this may be controversial in light of the Post Office farago but it is still true — and that is that it preserves the formal possibility of that action. There may be nuances, edge cases, extrapolations and contexts where action Y is, for subtle reasons permissible. You may be wrong. Once that advice is on the record, your client has a formal problem in acting contrary to that advice even if, substantively, that action would be justified in the circumstances. Do not put your client on written notice of things it has not asked you to give it notice about.

Legal memoranda are like Christmas letters from distant aunts: confections of happy news, telling you how well young Fortescue is doing with his water polo, the lovely summer holiday all had at Bognor Regis, the lovely kitchen renovations, but no word about Neville’s failing marriage, Imogen’s kleptomania or Emilia’s out of control coke habit. Spare the bad news. The whole family knows about that already.

Remember your client’s overarching principle of “plausible deniability”.

You think you can, but are not sure

This is where you earn your keep. You get paid for your legal research. Ideally this would be a novel or subtle question — if it isn’t you should know it, and should not be charging a client for finding out if you don’t — but the sequence is: orally, “this sounds okay but there are subtleties, let me quickly check those out and come back to you” — whereupon do your stuff, reconvene,

See also

• Rules: A Short History of What We Live By
• Legal opinion
• The domestication of law