Reliance on legal advice
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Negotiation Anatomy™
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You may see this sort of clause, especially in a custody or agency agreement:
Agent May Consult with Counsel
The Agent may from time to time obtain and rely upon advice from professional advisers and will not be liable for any action taken or not taken in reliance upon that advice.
You may hear the agent’s legal advisers sagely intoning that, yes, this is absolutely standard in the market and non-negotiable, being a simple and effective allocation of risk by a service provider who gets paid a pittance and otherwise does not share the fruits of the transaction.
Have no truck with this nonsense. Especially not from external legal advisors, who have a raging conflict of interest in dispensing this sort of “market colour”.
Bad advice is not the client’s problem
No one is stopping an agent getting whatever advice it wants, on its own dime and at its own risk. It’s a free country. Now, we say, “its own dime”: note, though, how common it is for an agent to ask the customer to foot the bill for its own legal advice.
And no one is stopping the agent relying on the advice it gets. Again, free country: that’s an agent’s prerogative. That it did get advice may even be (weak) evidence that it diligently discharged its contractual duty and wasn’t, factually, at fault. Weak evidence.
But if the advice is wrong, that’s the agent’s problem, not yours.
The answer is not for the agent disclaim its liability to you: it is for the agent to sue its lawyers. 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 blushes if their advice turns out to be wrong and their client’s client — that’s you, kind madam — goes on the warpath.
If fails the commercial imperative
In any case, agents: think about it from your customer’s point of view.
If you buggered up, your customer lost money and you will not now make it good, by letting your own (Q.E.D. negligent) lawyers off the hook, you throw your customer under a bus.
Your customer will not see the funny side of this. It will not matter that the contract is clear: your customer will rightly say it had little choice: your lawyers — yes, they who shall not be sued —hotly insisted this was a market standard. Rather, it will think you, and your lawyers, are morons. It may be right. It may withdraw its business. It may well grumble about you to other customers in the watering holes across the square mile.
None of this will be good for your business. It undermines the commercial imperative: the main thing keeping you in business. Over the long run — unless your customer happens to be Archegos — the very worst thing a customer can do to you is withdraw its business. (Everyone now regrets that Archegos did not withdraw its business.)
It defeats the purpose of engaging lawyers
Nor, this way, are you getting value for your legal fees. Your customer, who is likely to be paying them, certainly isn’t. There is a view that legal advice is really just legal compliance insurance: to engage lawyers is to buy access to theirprofessional indemnity insurance.
But here you would let off the actually delinquent party — your lawyers; your servants, who would have no complaint if you threw the book at them; who said they were the grand-an-hour experts on this stuff, but turned out not to be — scot-free. They get their premium, but you don’t make them write the insurance. Why on earth would you do that?
If you won’t sue your lawyer, your customer can’t: it has no privity. So the poor customer — who, don’t forget, is the only innocent party here — winds up paying for advice that gets you off the hook while being left high and dry and without any legal recourse against anyone.
Is this prudent business? Is this commercially reasonable behaviour?
Incentives
This is to say nothing of the perverse incentives it creates. If an agent can dissolve all liability, for free, by simply running to matron every time a cloud appears on the horizon then what should we expect its staff to do? Since every legally-penned email, file note or memo functions like a cloak of mithril, however misconceived or dunderheaded it may be wouldn’t you expect an agent’s staff to decline to take a view on anything? The agent holds itself out as the purveyor of excellence in its chosen field of expertise. Shouldn’t it be prepared to exercise that skill?
Cui bono?
Lastly, ask this: who, principally benefits from such a clause?
Certainly not the customer, and not really the agent either, since holding the putative free option incentivises poor behaviour from its staff, but exercising it will damage its client relationships. But the lawy — ahhhh, that’s it! That’s who benefits from this nutty clause. The lawyers!
And whose idea was this nutty clause, in the first place?
Let the record reflect a certain Mr L. Eagle, Esq. stepped forward at this point.
See also
- Allocation of legal fees
- Agency problem
- The commercial imperative. Never forget the commercial imperative.
- All our other counterparties have agreed this
- Legal eagle