Reliance on legal advice: Difference between revisions

Reliance on legal advice (view source)

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 {{a|negotiation|
-[[File:Magic circle.png|450px|thumb|center|A thousand pounds an hour, did you say?]]
+[[File:mithril.jpg|450px|thumb|center|A thousand pounds an hour, did you say?]]
 }}You may see this sort of clause, especially in a [[custody]] or [[agency]] agreement:
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 Have no truck with this nonsense.
+===Bad advice is not the client’s problem===
+No one is stopping the agent getting whatever [[Legal advice|advice]] it wants, ''on its own dime and at its own risk''. It’s a free country. And no one is stopping the agent ''relying'' on whatever advice it gets. That’s an [[agent]]’s prerogative. That it ''did'' get advice may even be (weak) evidence that it diligently discharged its duty and wasn’t, factually, at fault.
-No one is stopping you getting whatever [[Legal advice|advice]] you want, ''on your dime''. It’s a free country. And no one is stopping you ''relying'' on whatever advice you get. That’s a [[custodian]]’s prerogative. That you ''did'' get advice may even be (weak) evidence that you discharged your [[duty of care]] and weren’t, factually, [[negligent]].
+But if the advice is ''wrong'' that’s the agent’s problem, not ''yours''. The answer is ''not'' for the agent [[Disclaimer|disclaim]] its liability to you: ''it is for the agent to sue its lawyer''. That’s what it paid the blighters for: so they, and that juicy [[professional indemnity insurance]] policy they never seem to claim on, can cover the agent’s sorry arse if their advice turns out to be wrong and their client — you, kind sir — goes on the warpath.
+===If fails the [[commercial imperative]]===
+In any case, agents: think about it from your counterparty’s perspective. If you’ve buggered up, she’s lost money, you will not make her good, and you are letting your own ([[Q.E.D.]] [[negligent]]) [[Law firm|lawyer]]s off the hook. Whatever the documents say you will still have a pissed-off counterparty: make no mistake about that. She will think you are a moron. She may be right. She may withdraw her business. This undermines the [[commercial imperative]]. The [[commercial imperative]] is the main thing keeping you ''in'' business.
-''But on your head be it''.
+Nor, this way, are you getting good value out of that [[professional indemnity insurance]] you just bought,<ref>You know, by engaging legal counsel.</ref> are you? You are letting the ''actually delinquent party'' – your lawyer – off [[scot-free]] (your counterparty can’t sue your lawyer for (legally [[privilege|privileged]]) advice) and leaving your valued client – who is also, don’t forget, the only ''innocent'' party here – high and dry and without any legal recourse against ''anyone'', while your lawyer laughs it up all the way to the bank. ''A grand an hour charge-out rates, right?''
-Folks, it’s like this: if you choose to get [[legal advice]], but it’s wrong, and you rely on it, and you end up [[Breach of contract|breaching your contract]] and in rthe process [[Causation|causing]] your counterparty a [[loss]], the answer is ''not'' to [[Disclaimer|disclaim]] your liability to your counterparty: ''it is to sue your lawyer''. That’s what you pay the blighters for: so they, and that juicy [[professional indemnity insurance]] policy they never seem to claim on, will cover your poor, huddled self if the advice they give you makes a bish of things. By paying your lawyer’s bill you are paying your little portion of her [[Professional indemnity insurance|insurance premium]] for doing you wrong. Why let her off?
+To say nothing of the perverse incentives this creates: in any time of [[doubt]] you run to matron for (most likely crappy) legal advice since every [[email]], file note or memo, however misconceived or dunderheaded, functions like a cloak of [[mithril]], protecting you from all pecuniary harm, parking all questions as to your culpability in arranging the advice, such as “was the legal ''advice'' [[negligent]], or were ''you'' [[negligent]], in the way you chose to frame it, implement it, or even understand it?
-In any case, think about it from your counterparty’s perspective. If you’ve buggered up, she’s lost money, you are refusing to make her good and letting your own ([[Q.E.D.]] [[negligent]]) [[Law firm|lawyer]]s off the hook then:
-*''Whatever the documents say you will still have a pissed-off counterparty''. Make no mistake about that. She will think you are a moron. She may withdraw her business. This undermines the [[commercial imperative]]. The [[commercial imperative]] is the main thing keeping you ''in'' business.
-*You really aren’t getting good value out of that [[professional indemnity insurance]] you just bought,<ref>You know, by engaging legal counsel.</ref> are you?
-*You are letting the actually delinquent party – your lawyer – off [[scot-free]]: your counterparty can’t sue your lawyer for (legally [[privilege|privileged]]) advice it gave ''you'', can it?
-*You are therefore leaving your counterparty – who is also, let us not forget, the only ''innocent'' party here – high and dry and without any legal recourse against ''anyone'' and letting your lawyer laugh it all the way to the bank. ''A grand an hour charge-out rates, right?''
-Furthermore, this incentivises you to get ([[cheapest to deliver]]) legal advice ''all the time'', since every [[email]], file note or memo, however misconceived or dunderheaded, functions like some kind of cloak of [[mithril]], protecting you from all pecuniary harm, at the same time parking all questions as to your culpability in arranging the advice, such as “was the legal ''advice'' [[negligent]], or were ''you'' [[negligent]], in the way you chose to frame it, implement it, or even understand it?
 ===[[Cui bono]]?===