Dear Editor,
I refer to the following comment that was included in the story titled Waiting and watching in the October issue of India Business Law Journal: “A lawyer who did not want to be named suggests that with it now being ‘fashionable to take a conservative view’ clients who are keen on getting the deal done are gravitating towards practitioners with ‘somewhat dodgy credentials’, who in their effort to win business provide an aggressive route to go forward. The risks of acting on such advice can be considerable as few lawyers in India outside of the large law firms have professional indemnity insurance and little is done to rein in errant lawyers.”
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That comment is an interesting thought. I would say it is the duty of the lawyer to explain the risks between the conservative and the aggressive approach, and it depends on the risk profile of the client as to whether they are happy to take the risks of the aggressive approach. Probably a conservative approach works better with M&A deals, where we are asked to advise clients, but rarely have to give formal legal opinions, and can provide a nuanced analysis of the risks.
It’s tougher in other practices, such as finance and capital markets, where the client wants a clean opinion in a certain fixed format required by the banks with the aggressive approach incorporated, but without any mention of the risks of that approach. That is more likely to lead to the kind of situation that the person in your story is talking about.
Partner
International law firm
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