Jottings By An Employer's Lawyer

Tuesday, May 08, 2007

Advisor or advocate. Which hat am I wearing?


I have been preparing for a round of speeches in the next couple of months, including this week at the 2007 Workplace Strategies conference hosted by my firm in Phoenix (blogging), at the 14th Annual Labor and Employment Law Seminar in Austin sponsored by the University of Texas School of Law on May 17-18 (million dollar verdicts) and then at the SHRM National Conference in Las Vegas at the end of June (bullying).

Somewhere along the way of preparing the papers and presentations, I started thinking about the different roles I have as an employer's lawyer, and how I always need to be mindful which hat I am wearing.

My law license from the state of Texas reads "attorney and counselor at law." Certainly much of what I do, both in speaking and my daily interaction with clients falls under the counseling hat — providing guidance about the legal context and ramifications of decisions which are about to be made. Sometimes no doubt that shades well over into advice on what would be a good human resource decision, although I always try to remember that expertise and certainly the ultimate decision is my clients, not mine.

The other hat I wear is as an advocate, where I am not so much helping shape decisions, but defending ones that have already been made. Although there may be considerable overlap, there are certainly large distinctions as well. As an advocate, I may frequently advance arguments — arguments that may well be successful in extricating a client from a particular situation — which I would never offer as advice.

Since those of us who represent employers as their lawyer are trained to think in legal terms, it is easy for us to jump quickly to the advocate position and stake out the limits of what might "legally" be done. But what can be done, is not always what should be done. And it is important for me to remember which role I am playing and make sure that I approach it from the proper perspective.

The same goes when giving (or listening) to an employment lawyer speak. It is good for employers to know the limits and what might be defensible in light of current decisions; but in helping employers determine what should be done, it is important that we make clear where on the continuum between advice and advocacy a particular piece of information resides.

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