I recently attended an excellent ethics CLE breakfast presented by Temple Law Professors Eleanor and John Myers: "Ripped from the Headlines: Ethics Issues in the News". Our discussion got me thinking about advice my colleague and co-editor Abe Reich often imparts about avoiding absolute or categorical statements about possible outcomes.
I've written about avoiding absolutes, guarantees and unrealistic expectations in Top 10: "Gifts" Not to Give the Plaintiffs' Malpractice Bar (Part II), noting that these sort of categorical statements by lawyers often become "bad facts" in a subsequent malpractice action. But, absolutes should be avoided for another reason as well - they cause us to let our guard down and unknowingly encounter risk.
Take the issue of an in-house attorney deciding whether a management-level employee needs separate counsel at a deposition. Having been down that road a hundred times without ever having a conflict arise, the in-house attorney might be tempted to skip over the necessary analysis, saying instead: "There's no way that the employee's interests and the interests of the company will diverge."
The lure of the absolute makes for easy work because it requires very little analysis. But, that's not what we get paid to do as lawyers. Even if the answer seems obvious, going through the process of analyzing the employee's potential exposure every time helps us catch the 1 in 100 instance where the analysis really matters and, moreover, it provides our clients with a more complete picture of the situation they are encountering.
In the law, there's always some chance ... even if it is remote.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
