Legal Consultation: An Overview
Risk communication is situated at the interface of business, law, psychology, and politics. From the judicial perspective company law, labour law, liability and insurance law may be sub-topics. From beyond the organisation, environmental law, the law of obligations, anti-trust law and intellectual property law all may have a role to play.
When Does Legal Advice from an Attorney Become Necessary?
Contracts, except when they can or should be drawn up relying on in-house resources, ought to be designed by a lawyer on the basis of the well informed expectations of the parties – and it is with a few exceptions only the attorney who gives legal advice e.g. pertinent to the legal situation. Finally, legal action from the German District Court (Landgericht) on up is only possible through representation by a person who has been admitted to the Bar or a law professor. With regard to whistleblowing, we have to think not only about (preventive or other) consultation, the drafting of rules and regulations, designing structures and agreements, but also, as need be, about representation in court.
What are the limits to Legal Consultation?
An attorney is the consultant and representative of the client only. There are often a number of clients within one consultation. Where these clients have conflicting interests, however, representation becomes complicated and in some instances suddenly impossible. In particular an attorney may not represent opposing parties in one and the same case. Sometimes during a consultation for two parties it may happen that a dispute arises between them and the attorney must withdraw from both their representation altogether. This is frustrating for all concerned. Therefore often representation restricted to one side is preferable from the beginning. This practice does in no way exclude fair and sustainable settlements. In fact it may encourage it.
How does the position of an attorney relate to that of a mediator ?
Legal representation of one side and mediation between two sides are not compatible in one person since, by definition, an attorney speaks only for his or her client, while the mediator supports all concerned. For this reason a mediator cannot provide legal counsel beyond generalities. The mediator's role is to support a process furthering a solution which meets the needs of all parties, preferably leaving nothing on the table, and stabilising the common future. One of the first considerations should therefore be to determine whether mediation services will be desirable and therefore substantial legal counselling or representation of one side should be avoided from the beginning.
Whether in mediation or in legal work, the confidentiality to which an attorney or mediator is bound is assured and taken here as an absolute condition for the enormously sensitive communication process.