The best legal advice I ever received was from a partner at Fenwick & West. Interestingly, it had nothing to do with the law, and yet over the years, it has helped me deal with numerous tricky legal situations.

I was fretting over a difficult decision, worried sick about the legal implications of the options in front of me. This was early in my career, and I was completely out of my depth. But that didn’t stop me from acting with the supreme confidence that can only come from the double charm of youth and ignorance.

Finally, one of the partners pulled me aside and said, “Look; if you stay long enough in any position of power or significance, you are eventually going to get sued, no matter what. The only real choice you have is whether it is going to be for doing the right thing or the wrong thing. So, why don’t you focus on doing what’s right; let us worry about the law.”

I never forgot that advice. My job as a leader is to decide what the right thing to do is and then work with lawyers to figure out how to minimize legal risk while doing it. Ever since, whenever practical and reasonable, this has been the framework I’ve used to work with legal teams to make personnel decisions, negotiate partnerships, sign contracts, close deals etc.

Anytime someone tells you that they are forced to do something because the lawyers told them to, they are either naive, lying, or just not good leaders. Lawyers do not have the power, nor is it their job, to force anybody do anything they don’t want to. Their job is to give the best legal advice possible. Ultimately, people decide whether to follow it or not and are fully accountable for those decisions.

If you’re a leader, there will be times when doing the right thing comes with legal risks. Your job is to work with your legal team to figure out the best path forward for all parties involved. Lawyers should be able to quantify any legal risks, and you should be aware of the specifics. There’s a big difference between paying a fine and facing jail time. You have to make an educated guess about the range of possible outcomes, weigh them against the legal risks, and then make a decision.

In case you’re wondering, all of this sounds very complicated; why not just follow what the lawyers tell you to do? For one thing, yes, it’s complicated, but you are expected to have the skills and determination to be able and willing to navigate tricky situations and not take the easy way out. That’s why they pay you the big bucks. More importantly, legal advice generally does not take other equally important considerations such as reputational risk into account. Only you, as a leader, can fully understand the business context you are operating within and factor it into the decision making process. Because, at times the decisions you make, while perfectly legal, might be ethically challenged and have the potential to become a public relations nightmare for your company. Don’t take my word for it. There are presidents of top US universities who now wish they hadn’t simply regurgitated what their lawyers wrote up during their congressional testimony. And you don’t want to sound like Greg the egg 🙂

When doctors get sued for malpractice, often it’s because they have bad bedside manners. By the time they are 65 years of age, 75 percent of physicians will have been named in a medical malpractice claim. But, approximately 1% of all physicians account for 32% of paid claims, and they are the ones who have bad bedside manners and don’t communicate well with their patients. On the other hand, doctors who have never been sued for malpractice are perceived by patients as being accessible, concerned, and willing to communicate. Practicing defensive medicine by ordering excessive tests and procedures is less effective than developing good bedside manners.

In short, making carefully considered decisions, treating people with kindness and respect, and communicating honestly is a better way to reduce the risk of lawsuits than coming up with a clever and masterful legal strategy.

Here are three tips to get you started:

1. Experience trumps intellectualization: Making good decisions requires having a good intuition for reading people and assessing situations. Building intuition takes time and experience of the right kind. Being in the room where it happens; when such decisions are made is the best and perhaps only way to learn. No amount of intellectual horsepower is going to replace on-the-job training and firsthand experience. Choose to work at places that have a good reputation and aligns with your values. Then, actively seek out opportunities to be part of teams that are tasked with solving complex problems, because they almost always come with a legal hurdle.
2. Avoiding stupidity over acting clever: Play stupid games, win stupid prizes. Having a long, successful, and fulfilling career in leadership is 90% the art of avoiding stupidity and 10% the science of coming up with clever ideas. Attempting to outsmart the system every time to get your way, even for the right reasons, will not get you far. If you think what you are about to say can get you into trouble, don’t say it, or at the very least don’t put it in writing. Don’t put things down in an email while copying your attorney, hoping to claim attorney-client privilege. It’s a dumb idea. Don’t do it.
3. Minimize harm if you can’t do good: As Larry Ellison once said, “The moral high ground is the most expensive piece of real estate on earth.” What you choose to do in an attempt to “do good,” while perfectly legal, might run afoul of your company’s policies. Even though you have every right to act according to your values, you don’t have the right to impose them on your employer. They can and probably will fire you or otherwise discipline you for not following the rules. Before paying such a high personal price, make sure that it is for a worthy cause. In most cases, you can do a lot to minimize harm while still following company policy. FWIW, this is the number one mistake I used to make: Don’t be like me – going around attacking windmills like Don Quixote and getting knocked off your horse.