Like many readers of this blog, I sit on several non-profit boards of directors. For decades, pro bono service activities of this nature have been a steady and rewarding presence in my professional life, connecting my interests as a law professor with service to organizations that are working to effect positive change.
Many of the groups that I have affiliated with are of the more grassroots varieties. In contrast to larger, more well-funded entities, these organizations often survive on shoestring budgets and have limited staffing. Although it’s not unusual for the big non-profits to have their own lawyers to handle various legal matters and to be watchful for potential liability issues, the smaller groups cannot afford in-house counsel and generally retain legal advice and representation only when specific matters require doing so.
Consequently, on frequent occasion, these smaller groups may ask board members who are lawyers to serve as initial issue spotters for situations that raise liability concerns. This is especially the case when the organization’s activities may have created legal exposure that had gone unnoticed during the more creative and enthusiastic phases of work done by staff.
When information about such activities is brought to the board’s attention, perhaps via a discussion preceding a vote for approval, this is when a J.D.-holding board member may raise their hand and say…
“This is a great idea, but I have a concern….”
It’s probably a healthy thing when folks thinking about how to do their jobs imaginatively and inventively aren’t always asking about liability exposure at every step of the process.
But one of the most valuable roles that lawyers can play is to look at a new program or idea and ask, what could go wrong, what is the liability exposure, and is it possible to minimize that exposure without closing or substantially limiting a useful activity?
During my years of service on non-profit boards, I have sometimes found myself playing this role. The standard setting is a board meeting where a new idea or program is shared and receives an enthusiastic reception on its merits. But as folks are expressing their excitement, I’m quietly asking myself what could go wrong and speculating on how that scenario might implicate potential liability. (This may be the special curse of someone who teaches employment law and once taught torts.)
If I can imagine plausible scenarios raising legitimate concerns about unintended risks and legal exposure, then I will raise my hand and explain what I see as the attendant liability risks. In some cases, I will urge caution before adopting or implementing an idea until these concerns are addressed.
In somewhat self-conscious fashion, I have sometimes quipped that my board role is to be the “destroyer of dreams,” i.e., serving as the legal wet blanket who holds up the works because of liability concerns. Sometimes the line gets a chuckle.
Preventive Lawyering
The advisory role I am playing in these contexts is an informal variation of preventive lawyering. In a 1997 California Western Law Review article discussing the integration of preventive law and therapeutic jurisprudence, Dennis Stolle, David Wexler, Bruce Winick, and Edward Dauer explain that preventive law is “a framework in which the practicing lawyer may conduct professional activities in a manner that both minimizes his or her clients’ potential legal liability and enhances their legal opportunities. . . . It emphasizes the lawyer’s role as a planner and proposes the careful private ordering of affairs as a method of avoiding the high costs of litigation and ensuring desired outcomes and opportunities.” More plainly, a practicing with preventive law perspective helps to prevent bad stuff from happening.
I believe that the concept and practice of preventive lawyering is worthy of at least brief mention in any law school course where the legal content involves assessing risks and potential liability. It applies to so many legal roles in which minimizing legal exposure and preventing harmful or costly occurrences are in play, ranging from representing a multi-billion dollar corporation to advising a tiny non-profit. In class, I typically don’t belabor this topic, but I hope that by introducing preventive lawyering into our discussions, at least some of my students will file it away and then apply it during their legal careers.
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