An Introduction to Preventative Law

When a client calls their lawyer and asks for a Will to be prepared, the chances are high that a Will is exactly what they want. However, upon delving a little further, the client may tell you: “I am going in for an operation next week and I want to make sure my family is looked after in case something happens to me.”

Knowing the reasons behind the client’s request allows a proactive lawyer to address more fully the “root” concern that prompts the client’s request. It opens up the possibility of a discussion on the practicalities of other tools that the client and lawyer may consider and implement together to more completely and effectively resolve the concern. Some of these may be legal solutions, such as an enduring power of attorney, a business succession plan or buy/sell agreement. In addition to this, non-legal solutions may require implementation by other professionals such as life insurance if the client currently has none.

The practical applications of “preventative lawyering” range from a periodic legal check-up for an individual client to detailed, systematic legal compliance programs being implemented on a corporate scale. The benefits are inherent and numerous. In the United States, organisations implementing such programs have been termed “Good Citizen Companies” by the Courts and have been recognized with vastly decreased or “nil” liability in cases where employees have acted unlawfully.

What is ‘Preventative Law?’

Stated simply, preventative lawyering is about acting “proactively” by taking steps to prevent a problem from occurring. This is opposed to acting “reactively” in dealing with a client’s problem once it has occurred. Professor Thomas Barton believes that it is more than just planning how to win the next time the problem happens.1

He likens the difficulty of dealing with the problem “next time” to stumbling through a darkened room, moving aside objects on the floor as you bump them. Moving aside any object in the room is a quick fix to progressing through the room, but moving objects in the dark without knowing what larger object may be tipped over by your actions is not fully responsible. Instead of being reactive to an immediate need, what is needed is to find some light or other way to reveal the elements comprising the environment, even if that means one must stop and wait for one’s eyes to adjust to the darkness; or retreat; or call for help.2 Learning how to deal effectively with the antecedents and emergence of needs, rather than the needs themselves is the basis of learning to practice law preventatively.3

To be truly effective, lawyers must always find the clients “real problem”, not just their legal problem.

The Benefits

Preventative lawyering will contribute to the life and business success of a client. A client is likely to be saved stress, harm and cost. The practice should also ensure that the client is not misguided on issues that may have a substantial impact on them in the future.

Why wouldn’t a client act proactively or welcome a lawyer’s advice to do so?

It may be argued that a client will not act proactively because they are not willing to:

  1. spend the money; or
  2. invest the time.

However, it is perhaps more accurate to say that it is due to the client:

  1.  not appreciating the risk of inaction; or
  2. appreciating the risk but not considering the risk is severe enough to require action.

If the client appreciates the risk – money and time spent now is viewed in perspective of what it may cost or how much time it may take if left unchecked. Remember the common proverb “an ounce of prevention is better than a pound of cure”? John Fitzgerald Kennedy put it like this: “There are risks and costs to a program of action. But they are far less than the long-range risks and costs of comfortable inaction”. The lawyer must ensure that the client appreciates the risk.

The Multi-Dimensional Lawyer

The preventative lawyer can be likened to a “designer”. The designer is the dimension of legal practice that is often overlooked because of the “reactive” pressures of legal practice.

The designer works proactively with clients to identify potential legal trouble spots and design interventions that prevent those risks from occurring. In comparison, the “problem solver” deals with those problems that do erupt, notwithstanding the best preventative efforts. Failing that, or where justice concerns otherwise seem to warrant it, the “fighter” initiates judicial resolution of the problem. All three dimensions of lawyering are important.4

To be only one dimensional would be to risk obtaining the best solution for your client. There is a saying that, “When the only tool you have is a hammer, everything looks like a nail”.

Where to Start?

Preventative lawyering starts with attitude towards the practice of law. Time and effort must be made to go beyond the client’s current “problem”.

The lawyer needs to build strong bonds with their clients. They need the client to feel that they can talk to them about anything that may directly or even indirectly relate to their legal affairs. Without this bond, the client will be more reluctant to tell the lawyer everything. Sometimes, a client will innocently fail to pass on information because they don’t see its relevance. In order to overcome this obstacle, communication is essential.

If a rapport of this nature can be established, it is likely that the lawyer will be much better equipped to prevent legal problems occurring for their client. By understanding the client’s individual needs, their business, industry and goals, we are better placed to determine what the future issues are, as well as the underlying cause of existing issues.

Footnotes

1 Thomas Barton, Thinking Preventively from http://www.preventivelawyer.org/main/default.asp?pid=essays.htm at page 2. Professor Barton is the Coordinator of the National Centre for Preventive Law, California Western School of Law.

2 Ibid at page 4.

3 Ibid at page 22.

4 Thomas Barton, Preventive Law for Multi-Dimensional Lawyers, http://www.preventivelawyer.org.

Joe Kafrouni, Legal Practitioner Director, Kafrouni Lawyers

Disclaimer

The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. Business people should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.

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