December 30, 2020

Authority and Expertisedigging up the land mines of attorney-client relations

I know what “authority” means, and I know what “expertise” means. But I fail to associate them as I should. When I hear the word “authority”, I want to think about “expertise”, too. When I hear the word “expertise”, I want to think about “authority”.

Not because “authority” and “expertise” mean the same thing. They do not. There’s no unavoidable connection between them, either. But pretending they mean the same thing, or that they stand on the same bedrock, represent such common errors that plays upon them have become common ploys. Enterprising minds exploit common confusion and conflation.

We are all enterprising minds. We learn to present our expertise as exuding authority. We learn to present authoritative decisions as expert, or at least well advised. Worse still, when we have neither expertise nor authority, we learn to bluff both. I’m not sure we’d live in a better, technocratic-fantastic world were these put-ons more often true. But we’ve all lived examples aplenty where they were not.

The core of “authority” is power. Those with “authority” can get their way. “Expertise”, by contrast, denotes experience. We hope and expect an expert’s past to develop knowledge, skills, and instincts they can apply in the present to achieve good results in the future. But they are not in charge of that future.

Lawyers don’t have much trouble entertaining these themes. The public expects lawyers to provide legal expertise. The public also gathers that certain lawyers—judges, many bureaucrats, disturbing numbers of politicians—hold authority. Supposedly, the expertise of lawyers with clients helps them predict what lawyers with authority are going to do. Based on those predictions, they advise on strategy and tactics, taking the place of their client to represent them where appropriate.

I do not think living makes us experts on ourselves, just so. But from my experience, I believe I come close to playing dangerous games with authority and expertise not by what I say to clients, but by what I do not say.

When less rigorous thinking about a lawyer’s authority and expertise wells up in a client, I suspect the lawyer rarely sees immediate personal or even professional gain in mentioning it, much less correcting it. As long as things are going the right way, from the lawyer’s point of view, traces of that confusion serve only as a lubricant, speeding the decision home. If I have made a prediction that seems correct from my experience, I don’t mind a client convincing themself, momentarily, that I enjoy some occult power to force as I’ve foretold.

Until some other lawyer, legal organization, or the like gets the same dubious benefit.

I often say that it’s part of my job to advise clients on the law, and part of my job to advise them on lawyers. Even clients who have worked with many lawyers over many years don’t keep track of professional rules, legal fashions, interpersonal politics, or trends in the business of law. I have some of that expertise, developed more in passing than by rigorous course, and it’s theirs if they want it.

Another part of my job is appearing on e-mail chains and phone calls where lawyers who don’t work for my client take part. Tradition supports this: “Lawyers talk to lawyers, and businesspeople talk to businesspeople.” So do bar association rules, which generally prohibit lawyers chatting up people they know have their own counsel, without their counsel present. Theory goes, if an “expert” for one side throws the weight of legal expertise behind a point, the client on the receiving end ought to have their own, counterbalancing expert to throw weight back, in case the point’s debatable, incomplete, or outright bunk. In one way of speaking, the result is to prevent passing off expertise as authority. We don’t want lawyers letting on to unwitting victims that they have to do everything their clients want, not because the client wants it, but because the law does.

When lawyers and legal organizations make legal points to people who aren’t their clients, as I sometimes do on this blog, it’s not exactly clear how that balance is maintained. In theory, if the people reading a blog post or downloading an article or printing a form haven’t lawyers of their own, there’s no issue on my end. There’s no rule that says if someone doesn’t have a lawyer, you have to convince them to get one or say nothing at all. And of course there’s nothing to stop Internet passersby who do have lawyers, personally or through work, from taking what they find in the wilds back to their experts for inspection. Except, perhaps, that reading a website tends to be far more pleasant, convenient, and familiar than subjecting ourselves to alien expert attention.

Lawyers’ reluctance to put legal stuff out there without disclaimers could actually help here, by reminding folks that they should really get their own advice. But the case for warning labels, and disclosure more generally, doesn’t come out strong under scrutiny. Especially when the warnings run so long as to defy reading, or appear too often to induce any response beyond fleeting annoyance. Viewing this blog post almost certainly entails exposure to chemicals known to the State of California to cause all manner of medical maladies. Thanks to the warnings, these maladies now seem less avoidable than death.

Which means we can be doubly sure that the usual outcome of online legal publishing is not happy readers zipping published legal guides back to lawyers on call for second opinions. Much less deeper conversation about whether what’s been said, assuming it’s true, correctly conveys how much proceeds from expert opinion, and how much descends from legal authority.

This comes up for me fairly often, and is high in my mind for Blue Oak Council at the moment. Speaking from my own point of view, we’ve tried to keep what we publish as a group fairly “dry”, in the sense of exercising our collective expertise on relatively narrow issues, rather than broad policy mandates.

But even the very functional, building-block-like resources, like the permissive license list, embody a lot of judgment. We exercise authority through our trademarks, and to a much lesser extent through unremarkable website terms of service. But I’m not sure we’ve done enough to point out where the shallow tide of that authority rolls back. I’m not sure we’ve been adequately clear that our goal is a ton of more accessible expertise, and not any compulsory authority.

Your thoughts and feedback are always welcome by e-mail.

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