What is Preventive Law?
General Features
Preventive law is comprised of legal and
practical principles for anticipating and avoiding legal problems. The goal of
preventive law is to provide for the "legal health" of individuals and business
entities. The concept is a familiar one in the context of medicine. There is
now a clear recognition that the most successful medical treatment is prevention.
While the same concept applies to the state of a person's or business' legal well-being,
the recognition of preventive law as the most desirable model for delivering legal
services is of more recent origin.
Law students still learn about the
practice of law in the context of court decisions that address the rights of litigants
after the damage is done. And the public often looks upon lawyers as persons who should
only be consulted in dire circumstances. As a consequence the emphasis in legal practice
has historically tended to focus more on how to advocate a client's legal rights after a
dispute has arisen. And in far too many cases clients have not consulted with lawyers
until it was too late to avoid a legal confrontation.
Preventive law, in its broadest sense,
seeks to encourage new methods and concepts for how legal services can be delivered in the
future to avoid conflict and disputes. And in the process it seeks as well to help the
public understand how both individuals and business entities can most effectively create
and maintain an improved quality of legal health. While the emphasis in preventive law is
to manage facts and events in such a manner as to avoid unwanted legal consequences, it
has a natural connection with concepts of alternative dispute resolution.
Clearly some legal services
today include strong elements of "prevention". Planning for real estate
transactions, tax and estate planning, and various legal services provided to corporate
clients are examples of Preventive Law practice. Yet the broader purpose of preventive law
goes much further. It includes the entire "legal health" of individuals and
business entities. Preventive law techniques for individuals include such services
as the individual "legal checkup". For corporate clients, it embraces all
forms of legal compliance and legal audit.
There are two significant
differences between preventive legal practice and traditional legal practice. The
first is that the practice of preventive law deals prospectively with fact patterns that
may arise in the future (hot facts) while traditional legal practice deals retrospectively
with established facts concerning events that have occurred in the past (cold
facts). The second difference is that in traditional legal practice the ultimate
decision maker is usually a third party, such as a judge or arbitrator, while in
preventive legal practice the ultimate decision maker is the client, acting on the advice
of an attorney. The job of the traditional lawyer is to act as a historian,
interpreting past events in a light that is most favorable to the client. The job of
the preventive lawyer is to help the client to shape future events so that the facts will
reflect favorably on the client. This task is more difficult than that of the
traditional lawyer because of the uncertainty of future events, but it more financially
rewarding to the client because it reduces legal costs as well as potential litigation
costs.
A Comparison With
Preventive Medicine
The roots of preventive law
lie in preventive medicine. Many of the principles used to formulate preventive law
methods and analyses are modifications and extensions of techniques used in the practice
of preventive medicine. Of course, the nature of the risks dealt with in these two
disciplines is very different. Preventive medicine is aimed at reducing risks of
poor health, while preventive law is aimed at avoiding legal disputes and liability and at
strengthening positive rights. Despite these differences, may of the means and
opportunities for preventing risks are the same in the medical and legal fields.
Hence the close connection between preventive law and preventive medicine.
In their book "Medical Risk Management",
Edward P. Richards and Katharine C. Rathbun describe the relationship between preventive
medicine and preventive law as follows:
Using the analogy with
preventive medicine, preventive law is the legal specialty of preventing the disease of
litigation. Litigation is a serious disease that leaves its victims financially and
emotionally weakened and, in some cases, may lead to their economic demise. It is a
contagious disease characterized by a latent state with intermittent crises (individual
suits). Symptomatic treatment of the crisis phase may lead to a remission, but the disease
usually recurs in a more serious form.
The litigation disease is
carried by dissatisfied patients. Attorneys are necessary in the spread of the
disease, but only to the extent that they provide a mechanism for the dissatisfied patient
to breach the defenses of the victim. Its virulence is determined by the interaction of
environmental and intrinsic risk factors. The disease cannot be cured, but it can be
controlled by carefully monitored therapy and regular checkups.
Origins
of Preventive Law
Louis M. Brown, whose
insights provide the foundation for today's preventive law methods, has described the
origins of this field as follows:
FROM LOUIS M. BROWN:
THE OTHER SIDE OF THE LAW
T
he law that you see and read in the media concerns conflicts and
court trials. Preventive law is the "other side of the law." And
what is that other side?
A
personal story illustrates. I first practiced law in a
small office in Los Angeles. A client consulted me concerning a lease he was about
to sign as a tenant. Should he sign the lease? was the question he put to me. In law
school I studied about litigation, the court process, and the legal rights and duties when
a case was litigated. Advising about a new transaction had no direct connection with
litigation. Although I did not yet appreciate the full importance of the general
subject, this "other side" of the law began to concern me.
I
also had occasion to observe that people got into legal trouble
unnecessarily. They just did not realize the legal ramifications of what they were doing.
I didn't blame them. I began, in my way, to blame the profession. We never
really educated or informed people about what I later called THE RULES OF LEGAL HEALTH.
Nor did we help people identify the warning signals of situations that might lead
to legal trouble.
S
o, the concept of PREVENTIVE LAW was started. That is the
title of my first book, published in 1950. It was an effort to help people stay
within the bounds of law (i.e. minimize the risk of legal trouble); and take advantage of
legal opportunities (i.e. maximize the legal benefits). The field of Preventive Law
was carved out of the entire scope of law and law practice. The client/lawyer
relation differs. In the courtroom the lawyer is in charge. In preventive law
practice the lawyer and client are more nearly on an equal footing.
W
hen a new field is developed, one begins to get ideas that might
not otherwise arise. This was indeed the inspiration for the founding in 1986 of the
National Center for Preventive Law.
T
his journey has, I believe, begun. It is the adventure into the
other side of the law -- the side that gets little public exposure but affects all of
us almost all the time. We read stories of problems that get into the court system.
But most of what we do, most transactions, most of our lives are within successful
boundaries of the law. Yet we don't tell the story of those successes. For
example, there are far more successful and creatively arranged wills and estate plans, far
more corporations and businesses that are legally sound, than we ever hear about.
There are laws and lawyers behind every corporate merger and acquisition. There is
law in every real estate transaction. Every business starts and continues in a
legally acceptable form. And most of these are untold stories of legal
success.
F
inally, a few predictions: Come the 21st Century we will, for
Preventive Law purposes, see:
-
- Louis M. Brown
- June 1, 1995
A Note About Louis M. Brown
Louis
M. Brown (1990-1996) was internationally recognized as the "Father of Preventive
Law." He dedicated much of his distinguished professional career to the
development of preventive law. His pivotal book "Manual of Preventive
Law," first published in 1950, is still widely referenced as the first significant
treatise on the subject. His most recent book, co-authored with Anne O. Kandel, is
"The Legal Audit:
Corporate Internal Investigation" (Clark Boardman Callaghan 1994) which describes
preventive law methods for corporations and other organizations. Mr. Brown published
more than 200 articles in professional journals, many in the field of preventive
law. Over the years, a number of awards were bestowed upon Professor Brown,
including the Pacem in Terris Medal from Manhattan College.
In addition, several prestigious awards and programs
have been named after Mr. Brown in recognition of his seminal work. The American Bar
Association annually presents the "Louis M. Brown Award for Legal Access"
for the advancement of alternative delivery mechanisms and improvement of access to legal
services for the moderate income and working poor. The ADR Section of the Los
Angeles County Bar has established the annual "Louis M. Brown Conflict Prevention
Award". In addition, in 1994 the International Bar Association adopted and
began sponsoring the "Louis M. Brown International Client Counseling
Competition," an extension of a law student competition initiated by Mr. Brown
through the American Bar Association some 17 years earlier.
Mr. Brown was a Distinguished
Professor Emeritus of the University of Southern California Law School, and Chair
Emeritus of the National Center for Preventive Law. Professor Brown was also Of
Counsel to the Los Angeles law firm of Sanders, Barnet, Goldman, Simons & Mosk.
