"Is it Legally Permissible ?"

Have you ever wondered what are the most frequently asked questions posed to any corporate legal counsel? It would probably be "can we do this?" It's not that they are asking you what they cannot do but rather what they CAN do.

Most corporate counsels do not have the opportunity to go into "cant's" simply because the client normally wants a "Yes, you can" solution to the query at hand. However, lawyers are normally prudent enough to cover their back sides by responding in such a manner that does not imply they are suggesting any particular course of action, but rather, is a mere expression of their legal opinion as to whether that particular course of action is "legally permissible", based on the facts and circumstances.

Most corporate counsels that I have spoken to express their concerns on not being given the opportunity to articulate the boundaries of the legality of certain actions. Management is usually too impatient to listen to the "DON'Ts". The irony of the situation, as expressed by certain corporate counsels, is that one wouldn't thoroughly understand the "DOs" unless one is able to comprehend the "DON'Ts".

Imagine, if you ask for direction to get from Point A to Point B, instead of having the patience to listen to the basis on which a particular route is recommended, management would simply like to know which is the fastest, cheapest and best route to take from Point A to B. The suggested route is based upon particular set of information and facts. If those information or facts vary, so will the preferred route. Most management that I have seen or read about, would blindly follow the suggested route from Point A to B, without considering whether circumstances have changed. And if something goes wrong, you know whose fault that will be.

We don't have to look far. Arthur Andersen is a classic example. When the partner shredded those incriminating emails and documents, he defended himself by saying that he did so upon the legal advice of the firm's legal counsel. The legal counsel, whom has, prior to that, sent a general email to everyone in the firm, reminding them to comply with the documentation policy. That email was not a specific legal advice rendered to that particular partner. In fact, if one were to read their documentation policy, I believe it will not say "destroy documents if you know they are incriminating...before they are discovered".

Can one destroy those emails and documents? If this question were to be asked, the answer will vary depending on how much facts the legal counsel knows. One of my friend who happens to be a corporate counsel bestowed upon me his wisdom, "If someone ask me that question and I have to be polite in my response, without probing for additional information, I would simply respond that it is legally permissible to do so if......" According to him, some management would seek further clarification and ask "what if the situation is like this". Others would merely be satisfied with the answer and interpret it to their own liking (by coincidence or otherwise, the interpretation will usually assist their situation).