A Protective “No”

My father was a lawyer; I am a lawyer. I have never experienced not having a lawyer easily, and cost-effectively, at hand. And, I ponder often about the reality (and inequity) of most people not benefiting from a relationship with a good lawyer and often not having funds to pay for excellent legal work.

The email I reproduce below (names purposely changed) prompted this blog post, for the notion that more people might be able to avoid costly legal problems by at least getting a “no” from a lawyer. I provided my quick and prompt “no” response to the following email. By at least asking for my reaction to the email, the son now is able to stay away from the faulty prenuptial planning referenced in the email. He was smart to “cc” me with the email:

Hey dad,

As you know Jane and I are getting married soon.

We love each other and I can’t imagine anything bad happening in the future, but I’ve heard some really ugly divorce stories about other marriages.

Just to be safe and to protect my inheritance, I want to look into a prenup.

I’ve read online that you can print a free document and have it notarized, but I don’t know if this will hold up in court. (think it will)

If I go through an attorney, then it will cost $2000 for the document.

Can you check with James to see what he recommends?

Thanks,

John

This absence of lawyer-oversight, in my opinion, ultimately opens the door down the road for costly litigation and legal problems, far more expensive than if preventive planning had been in place. Jimmy Carter, during his presidency, spoke (in 1978) at the 100th anniversary of the Los Angeles Bar Association and, in part, said: “Ninety percent of our lawyers serve 10 percent of our people. We are over-lawyered and under-represented.”

I intentionally restrain in this blog post from railing against certain aspects of our legal system. But, the above email is in line with the point that many people can be much better off in the thicket of our legal system if they — at a minimum – seek legal counsel to ask if they should not do something, as follows.

Most typically, a client engages a lawyer to move forward and create something for the client; for example, a sales contract, stock agreement, estate planning document, lease agreement, intellectual property protections, tax-savings planning, etc.

This moving forward for generating a document or plan-of-action also includes the lawyer inevitably having to consider and take into account what the client should not be doing. [As an aside, my comments for this blog post center on non-litigation legal work and on preventive efforts to reduce or avoid exposure to litigation.]

The above slice of the lawyer’s work dealing with the “should not be doing” element is itself an independent option for people who, for whatever reason, do not wish to pay for the lawyer to move forward with document(s) or a plan-of action.

There can be great value in being able to ask a lawyer about what one should not do, such as not signing a proposed employment agreement, not signing a proposed business document, not signing lawsuit settlement papers, not obtaining an internet Last Will and Testament or other free or low-cost legal documents. In other words, at least knowing what not to do reduces a considerable number of costly legal issues and problems down the road.  A protective “no.”

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