“Can I?” Versus “Should I?”

A discussion of the “reasonableness” concept in venue safety

Steven A. Adelman

If you have been reading my  or attended one of my presentations, you know that the duty of a venue (and its patrons) is to behave as a “reasonable person under the same or similar circumstances.” This legal formulation is the foundation of all tort law, and is about as close as one gets to a universal legal principle. But both lawyers and non-lawyers often get frustrated at the absence of formal criteria.

While my stock answer to questions about liability is, “It depends” (see related article), we thankfully do not live in an entirely squishy and relativistic legal system.

I was recently reminded of what actually underlies the reasonableness concept as I prepared a presentation on ethical issues in sports and entertainment law for a conference at Arizona State University’s law school. After lamenting that I had to present the subject even lawyers find boring, I dusted off my copy of the Rules of Professional Conduct and dove in. Here is what I found:

ER 2.1 Advisor. In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation. [Emphasis added.]

What does this mean for you? Remember that everyone has the duty to behave reasonably. Ethical Rule 2.1 explains that a reasonable lawyer advising his client must use his professional judgment, and he is free to consider more than just the words on a page.

In other words, any lawyer can be a mere tradesperson, reading statutes and telling you what they say, checking contract language to make sure it’s all enforceable. That’s important. But as I discussed at ASU, there is a role which trumps deciding whether or not a client can do something.

Per ER 2.1, a lawyer should also be an advisor, evaluating the client’s situations not just on their legality, but also on their “moral, economic, social and political factors….” Based on these additional criteria, a lawyer is charged with the further duty of helping the client decide, “Should I?” This is an entirely different sort of discussion which requires knowing many more facts, as well as a greater understanding of the client’s goals and vision. I am not just being funny when I answer, “It depends.”

A famous line is attributed to Mark Twain, “To a man with a hammer, everything looks like a nail.” In light of all the important issues a lawyer may reasonably consider when giving you advice, be sure he helps you with everything in his toolbox.

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