Herman Melville’s Bartleby, The Scrivener: A Story of Wall-Street (1856), a perennial element of Law & Literature courses, concerns a concatenation of confrontations between “one of those unambitious lawyers who . . . in the cool tranquility of a snug retreat, do a snug business among rich men’s bonds and mortgages and title-deeds” and a newly-hired copyist, portrayed as “pallidly neat, pitiably respectable, incurably forlorn!”
Bartleby—mysteriously, and infuriatingly—soon declines every work-related request by saying, “I would prefer not to.” Despite the extensive accommodations (some, literal) made for him by his increasingly aggravated (and never-named) but not-unkind employer, the short story does not end happily for the scrivener.
More than a century and half later, every junior lawyer, whether or not she is familiar with Bartleby’s tale, can well anticipate the professional perils of his passivity.
Yet, unlike Bartleby, who was asked only to hand-copy documents (and to help check the accuracy of those produced by his colleagues), a junior lawyer (Jane), whether outside or in-house counsel, might well find herself without sufficient facts, knowledge of the law, or the time necessary to obtain either, before having to advise a client.
For instance, a shareholder, officer, or director (Charles) could insist on quick legal advice during a corporate crisis, although: crucial details might not be available, and/or could be quickly changing; the relevant legal issues might involve several different (and not always fully-developed) areas of practice; and the law firm partner, or the company’s general counsel (Paula), herself handling urgent matters, might instruct Jane to, “Give Charles the best answer you can, under the circumstances, but don’t expose us to malpractice liability, or to professional ethics charges.”
The very first of the ABA’s Model Rules of Professional Conduct (MRPC) provides that “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Comment 3 to MRPC Rule 1.1 clarifies that “In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”
Strategies (not legal advice) for Jane in such a situation might include:
First, establish who the client is: Charles personally, or the corporation that he might serve as a director or officer?
Anticipating that those interests might diverge, MRPC 1.13(f) provides that “In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.”
In fact, under MRPC 1.13(b), if Charles’ proposed course of action (or inaction) would violate the law and harm the corporate client, Jane should “refer the matter to higher authority in the organization,” and perhaps ultimately to the board or to the independent directors.
Second, despite Charles’ requests for assistance “as soon as possible,” check for specific deadlines for answering him, and/or for his making a decision and/or otherwise taking action based on legal advice. Does he have a “hard” deadline, or would an extension be possible?
In its classic decision imposing personal liability on directors who, despite their experience, expertise, and sterling qualifications, had not assertively examined the basis for, or the sufficiency of, the $55-per-share buyout price in a cash-out merger proposal initiated by their company’s own chairman/CEO, Van Gorkom, the Delaware Supreme Court noted disapprovingly that “None of the directors [at a special Saturday-noon meeting of the board, called by Van Gorkom on one day’s notice, without a specified agenda] were investment bankers or financial analysts. Yet the board did not consider recessing the meeting until a later hour that day (or requesting an extension of [the potential acquirer’s] Sunday evening deadline) to give it more time to elicit more information as to the sufficiency of the offer. . . .” Smith v. Van Gorkom, 488 A.2d 858, 877 (Del. 1985).
Third, to prevent any subsequent confusion about the basis for or validity of the advice, document in an e-mail to Charles (cc’d to Paula), the information that Charles provided, and his demand for an accelerated response.
The Van Gorkom decision observed that “Without any documents before them concerning the proposed transaction, the members of the Board were required to rely entirely upon Van Gorkom’s 20-minute oral presentation of the proposal. No written summary of the terms of the merger was presented; the directors were given no documentation to support the adequacy of $55 price per share for sale of the Company; and the Board had before it nothing more than Van Gorkom’s statement of his understanding of the substance of an agreement which he admittedly had never read, nor which any member of the Board had ever seen.” Id. at 874.
Fourth, briefly summarize for Charles by e-mail (along with the deeper analysis) at least the first principles of the relevant area of law (for instance, a director’s fiduciary duties of care and loyalty), and the aspects of those duties most applicable to the current situation.
Fifth, summarize in that e-mail at least the most relevant options (including Charles’ taking no immediate action) and their relative advantages, disadvantages, and risks; and recommend, from a legal point of view, one of those options.
Jane might generally be wary of making—or of helping Charles, or the corporation that Charles serves as a director or officer, to make—a predominantly “business decision,” as opposed to offering the client her legal advice or perspective on a business situation.
According to Comment 3 to MPRC 1.13 (and bearing in mind, as discussed above, the lawyer’s duty to report illegal conduct), “When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful. Decisions concerning policy and operations, including ones entailing serious risk, are not as such in the lawyer’s province.”
However, MRPC 2.1 does allow a lawyer, “[i]n rendering advice, [to] refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Comment 2 to this Rule adds, “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”
Jane might also consider adapting to this context a Navy SEAL’s advice concerning emergency decision-making in “life-threatening situations”:
“Come up with three—and only three—possible options or courses of action. Look at the pros and cons of each option. Honestly weigh factors like risk, your ability to accomplish each option, and whether your plan is realistic. . . Then, without debating and rethinking each of your options, make the call and choose the one your gut tells you is the best. . . [M]ost importantly, be confident in your decision and proceed.”
Sixth, indicate to Charles what information (possibly in priority order) would be most useful for him or one of his colleagues to supply (or for you to gather independently, if given the necessary time).
Seventh, propose to Charles a regular schedule (rather than simply, “as soon as possible” or, “if anything new happens”) to receive updates from him (and/or one or more of his colleagues), or to provide him with an updated analysis. Make sure that you and Charles have complete contact information for each other (such as personal cell phone numbers and/or video conferencing links and passwords).
Eighth, ask Charles if you have his authorization to contact, and to request information from, his colleagues or other third parties, and whether he needs to indicate that to them in advsnce. If Charles cannot grant such access, who can, and when, and how?
Ninth, clarify, preferably by e-mail, what you have the authority to do, especially without further consultation with or authorization from Charles, on behalf of the client (whether that is Charles personally, or the corporation he serves). If you need additional authorization, how can it be obtained?
Tenth, check with Paula if necessary for her approval to involve other members of the law firm (or department), or outside counsel or other advisors. Consultation with your colleagues or outside counsel might not be so “impractical,” under Comment 3 to Rule 1.1, as it might first appear. (Under MRPC 5.1(b) and (c), as a supervisory partner, Paula should be making “reasonable efforts” to ensure your compliance with the Rules, and might be personally implicated by your violations of them.)
Eleventh, if Charles is not already familiar with them, provide him with the names and contact information of those colleagues or third parties, and alert them to the situation.
Twelfth, remember that under MRPC 5.2(a), your acting under Paula’s direction will not excuse your own violation of the Rules.
However, under 5.2(b), you are safe if you acted “in accordance with [Paula’s] reasonable resolution of an arguable question of professional duty.” (The questions of how you are to determine whether Paula’s resolution is “reasonable,” and when an issue of professional duty is “arguable,” remain unaddressed.)