by Lisa A. Runquist
WORKS, April 1992, Vol. II, No. 4
A potential client once called me to tell me about his great plan. He would acquire a certain piece of property that had a certain historical value, especially to Christians. He would then get a number of people to invest in it, and make it the next best thing to Disneyland. I listened to him, and then told him about the potential securities problems he could have. He said he didn’t want to hear about the problems; he wanted an attorney who would be “one of the team,” and who was interested in and enthusiastic about the project.
Okay, I admit it. If you call me up to tell me about this great idea you have, I don’t do backflips. I don’t tell you it’s wonderful. In fact, what I immediately start to think about are all of the problems — all the things that could go wrong with your “great idea.” Am I being negative? Am I trying to discourage you? No. I am being a lawyer.
When you hire a lawyer, you aren’t hiring a cheering squad. As a friend, I might tell you your idea sounds wonderful, but as an attorney, I have one job: I am here to protect you. I can’t do that unless I first identify where you might be attacked. This might sound negative, but it’s the most positive thing an attorney can do for you. If your attorney can identify, beforehand, where all of the land mines are, then your chances of making it through unscathed increase dramatically. You want your attorney to tell you what can go wrong, preferably before it does, so that you can either correct the situation or prepare for any adverse consequences.
What else should you expect from your attorney? The first step is to identify the problem; the second is to identify your choices to make the problem go away, or at least to minimize it.. But your attorney isn’t a miracle worker. There is often no clear cut answer. Quite often, the matter comes down to a business decision. For example, is it better to go forward with the understanding that certain losses might occur, or is it better to cut your losses now? When it comes down to making a business decision, the final choice is yours. Your attorney’s job is not to make the decision for you, but to advise you of your choices and why one choice may be better than another, and to make sure you understand what you can and cannot do legally.
After you’ve made your choice, then your attorney’s job is to represent you to the best of his ability in carrying out your decision, even if it’s not the choice he would have made. For example, if, after weighing the pros and cons, you decide to try to negotiate a settlement of a dispute through arbitration, then that’s what your attorney must use his best efforts to do, even if he would have preferred to bring a lawsuit immediately. If your attorney doesn’t think he can adequately represent you, he should tell you, and suggest you seek other counsel.
Most attorneys specialize to some degree or another. They are often hired to do a specific job or jobs; although, especially with larger organizations, an attorney may be hired to provide advice on all aspects of your operation. If you have hired an attorney to defend you in a lawsuit, this same attorney may not be competent to advise you about your tax exemption. When you hire an attorney, both of you should agree about exactly what work is to be performed.
Often, nonprofit organizations, especially churches, rely upon an attorney who is on their board or is a member of the church for free or discounted legal advice. This may be appropriate in some instances; but in others, the advice may be worth exactly what you paid for it. For example, if your pro bono attorney specializes in personal injury, he may not know what your choices are in responding to an inquiry from the Internal Revenue Service. If you don’t get advice from someone who specializes in nonprofits before you proceed, it may be too late to solve the problem later, after the wrong action has been taken. Further, the volunteer attorney may have thought he was responding in his role as a director, and not as an attorney.
However, the attorney’s liability for incorrect legal advice is likely to be the same whether or not he is paid. So, even in situations where you are using the services of a volunteer, it’s important to make sure the attorney has the background needed to handle the matter, and that you both agree what services he is to perform. If you do this, then when you come to me to rectify the situation, I won’t have to advise you that you have a cause of action against your volunteer member or director for malpractice.
If you need encouragement, call your public relations advisor. But if you want to know what legal problems you might face, and how to avoid or minimize them, you’d better call your lawyer