3rd August 2022
Perhaps the most boring but memorable title of a political biography was that of Norman Fowler:
That title came in turn from a comment of Margaret Thatcher when Prime Minister, in a dispute regarding the errant Downing Street adviser of the day: “advisers advise but ministers decide.”
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One feature of legal commentary is having to explain the distinction between a client and a legal adviser again, and again.
This is especially so when politicians and the media attack lawyers.
But.
Some lawyers do not help themselves.
Some lawyers so closely identify themselves with their client so that that any client/adviser distinction is indistinguishable to a lay person.
But the distinction is always there – or should be.
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This is true when looking at the dynamics of high-profile litigation like the “Wagatha Christie” case.
And it is true of government lawyers who, it is reported, are being asked to re-frame their legal advice (which I may blog about soon, as a former government lawyer).
Of course, there are circumstances where the lawyer is their own client – notwithstanding the adage about foolishness.
But generally one way of understanding what is really going on in any legal story in the news is to work out the client/adviser distinction.
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Some clients will be so reliant on their lawyers that it will seem that in reality – as opposed to theory – it is the lawyer actually making the decisions and driving things forward (or backward, or indeed off the track completely).
But again, even if this is the situation, the distinction is still there, and the lawyer remains the servant of their client.
That a client is (over-)confident that their lawyer is acting in their best interests does not remove the distinction.
And you may not be privy to the confidential and privileged advice the lawyer has given to their client.
The overwhelming obligation for any legal adviser is to get their legal advice right.
Getting advice right, so that it can be relied upon by clients, will often involve disclaimers and provisos.
These disclaimers and provisos may be seen as covering backsides – and sometimes they may well be.
But disclaimers and provisos are also signs of accurate and considered advice: [A] may lead to [B], but if [C] happens then [A] will not lead to [B].
Blunt, simple advice has its place – and it can show off a lawyer’s confidence and experience: “you will win at court” and “there can be no defence”.
But it can also show up over-confidence, and a lack of experience.
The important – crucial – thing with legal advice, blunt or elaborate, is for the advice to be correct and thereby reliable.
And as long as that is in place, the lawyer has done their primary job.
It is then for the client to decide.
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Sometimes ministers will not like this advice – and may wish to blame the lawyer rather than the law.
Sometimes claimants will not like their advice – and seek to go to court despite advice to settle a case.
And sometimes lawyers will get their advice wrong – or, more commonly, have been too cautious in their assessments of risk.
But if, say, a lawyer says there is 60:40 chance of winning a civil claim, they have not got their advice wrong if a client then loses.
You are a just one of the 40% and not the 60%.
As long as the lawyer has reasoning for that as their best assessment, they have done their job.
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There are some lawyers who do want to be decision-makers – either in effect or in reality.
But most lawyers are lawyers for a reason and that is because they want to be advisers and not decision-makers.
There are also decision-makers who do not want to make decisions – who want to hide behind advisers or blame lawyers.
But they are still decision-makers.
Lawyers advise.
How about that for a book title?
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