Over my years as a lawyer, I have spent quite a number of those years helping clients as a litigator. But I found that there were many parts of the litigation business which seemed to be unhelpful and dissatisfying to clients (and me!!)
These dissatisfaction points included:
But fortunately those times have changed, and over the past years I have shaped my practice more and more towards "Preventative Law".
I think of Preventative Law as a kinder, gentler law practice, where my role as a lawyer is more as an educator, coach and resource to my clients. I often talk to people about Preventative Law but I am not always sure that people understand what it is that I mean by it. Hopefully, this article will assist.
Preventative Law in Action
When a client calls me and asks for a Will to be prepared, the chances are high that a Will is exactly what they want. However, after looking into it more, my client might say: “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 my client’s request allows me to address more fully the “root” concern that prompts that request. It opens up the possibility of a discussion on the practicalities of other tools that my client may consider and we can then implement those tools together to more completely and effectively resolve the concern. Some of these tools may be legal solutions, such as making a gift, preparing an enduring power of attorney, establishing a trust, or developing a business succession plan. Also, non-legal solutions may require implementation by other professionals such as an accountant or personal organiser.
The practical applications of “Preventative Law” range from regular legal health checks for an individual client to detailed, systematic legal compliance programs being implemented on a business or corporate scale.
What does Preventative Law really mean?
Stated simply, Preventative Law is about acting “proactively” by taking appropriate steps to prevent a problem from occurring. This is opposed to acting “reactively” in dealing with a client’s problem once it has occurred.
To be truly effective, lawyers should try to understand their client’s “real problem”, not just their legal problem so that can proactively work with their client to achieve great results.
The evidence shows that Preventative Law contributes to the life and business success of clients. A client is likely to be saved stress, harm and cost. Preventative Law can also ensure that a client is not misguided about 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?
Many clients do not:
The preventative lawyer is like a “designer”. The designer role 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 designs tools to prevent those risks from occurring. In comparison, the “problem solver” deals with problems as they erupt, notwithstanding the best preventative efforts. Failing that, or where justice concerns otherwise seem to warrant it, the “fighter” initiates a court based resolution for the problem. All three dimensions in a lawyer are important. To be only one dimensional would be to put at risk obtaining the best solution for a client.
Where to Start?
Preventative Law starts with an attitude towards the practice of law. Time and effort is made to go beyond a client’s current “problem”. As lawyers we should aim to build strong bonds with our clients. It’s important for a client to feel that they can talk confidentially to their lawyer about anything that may directly or even indirectly relate to their legal affairs. Without this bond, a 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 lawyers will be much better equipped to prevent legal problems occurring. 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.
The Tools of Preventative Law
A lawyer applying the skills of Preventative Law will focus on:
If you have thoughts you would like to share about preventative law, I would love to hear them! It’s a very important discussion to have.
Trish likes to do her thinking while she drives - what a perfect combination for a mobile lawyer!
This blog shares those thoughts.
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