Who Should Practice Preventive Law?

The heart of the legal checkup is a series of questions about the present status of an individual's legal affairs.  Specific legal topics -- such as whether the individual has a will -- are raised, as well as factual matters that are likely to affect legal rights -- such as the recent acquisition of property.  The above link provides a good example of the initial set of questions that might be asked in a legal checkup.    The answers to these questions would lead to further follow up questions in areas that seem to involve weaknesses or potential dangers in a person's legal situation.    With the answers to these types of questions, an individual and an experienced lawyer can use preventive legal planning to achieve a careful and positive resolution of any outstanding legal problems or risks and chart improved actions to avoid similar problems and risks in the future.

Legal Checkup Questions

In order to detect present or potential legal problems at the earliest possible stages, individuals will often need access to professional legal assistance.  To be fully effective, individuals who are trying to shape their activities through preventive legal    methods should have regular access to advice about the legal significance of contemplated actions.  Unfortunately, within the boundaries of traditional law firms and legal services delivery methods, attorneys and legal services are often not available to individuals in quantities and at prices that will achieve effective preventive legal counseling. 

	Unbundled delivery of legal services in which clients pay only for narrow professional tasks undertaken by lawyers while the clients complete other legally significant activities themselves;
	Prepaid legal plans in which participants pay modest ongoing premiums and obtain simple legal services at no additional charge; and
	Self-service centers at which individuals are instructed and assisted in undertaking certain legally significant actions themselves.

Innovative Methods for Legal Services Delivery

Innovative Programs to Help People of Modest Means Obtain Legal Help

Businesses are increasingly the targets of legal demands and liability risks.  To minimize the impact of these risks, companies should systematically assess their legal status and make corresponding provisions for actions that will reduce their risks of liability.  The primary tools for this type of preventive law practice in business settings are legal audits and compliance programs.

Legal audits are systematic evaluations of the legal status of a business at a given time.   They typically provide a snapshot of a concerns liabilities, liability risks, and beneficial legal rights and relationships as of a given time.  This type of evaluation is undertaken by inventorying the legal constraints or liability standards applicable to a concern's operations and then conducting a factual investigation of those operations to determine whether the identified constraints or standards suggest   sources of liability.  This same type of evaluation can also address the legal rights held by a concern in relation to key suppliers, stakeholders, or competitors.   The article at the following link provides a more detailed description of a preventive law audit.

The following link describes legal auditing techniques which the federal government expects hospital organizations to undertake as part of their efforts to ensure compliance with laws governing federal payments to health care providers.  While the specific context of these legal auditing efforts is the health care industry, the legal auditing techniques which are described will be applicable in many fields.

Features of a Legal Audit

Compliance programs are another important tool for preventing business liability.  A compliance program is a group of management practices for a business or other organization which has been reasonably designed, implemented, and enforced so that it generally will be effective in preventing liability.  Such a program will generally entail both prospective and retrospective components.  The prospective portions will be aimed at identifying activities by employees and other organizational agents that will avoid liability and at ensuring that, through job directions, training, and employee monitoring, these liability-preventing actions are undertaken.  The retrospective portions of a compliance program will usually be aimed at detecting illegal actions or activities raising substantial risks of liability and at stopping those activities as soon as possible.  These retrospective studies can also provide a useful information base for formulating compensatory remedies for injured parties and business reforms to better prevent the same type of misconduct in the future.

The following links describe government standards for evaluating the sufficiency of compliance programs aimed at preventing criminal misconduct, the impact of compliance programs on the personal liability of corporate directors and officers, and some practical advice on how companies can construct compliance programs.

Government Standards for Compliance Programs

Officer and Director Liability for Inadequate Compliance Program

Practical Advice on Designing and Implementing an Effective Compliance Program

Government Officials

Government officials are increasingly important practitioners of preventive law insofar as they are recognizing that efforts to prevent liability by businesses and other organizations are key parts of law enforcement efforts that should be encouraged by liability standards and proscecutorial restraint.  Businesses that seek to direct their employees towards lawful activities and to detect and disclose instances of illegal conduct within their organizations are increasingly being seen as part of a "practical partnership" with public officials in the enforcement of laws within businesses organizations.  As a feature of this new recognition of the valuable role that businesses can play in law enforcement efforts, legal standards are evolving towards liability tests in which corporate and other organizational liability turns on offense and misconduct prevention efforts.  Companies which can establish good faith efforts to prevent offenses and other misconduct by their employees and agents will increasingly be exempted from liability at the company level, as individuals who are directly responsible for misconduct are more frequently detected through corporate monitoring and prosecuted based on corporate disclosures.  The following links describes this trend in the development of corporate criminal, administrative, and civil law and in standards for the exercise of charging discretion on the part of government attorneys.

Developing Liability Standards Based on Compliance Due Diligence

The Policy Basis of Sentencing Standards Turning on Compliance Diligence

The Impact of Compliance Diligence on Charging Decisions -- A Government Attorney's View

Lawyers

While other professions have recognized the role of "prevention" in their disciplines, lawyers have been slow to apply this concept in shaping their services. To promote the development and delivery of greater preventive services to clients, the Law Practice Management Section of the American Bar Association(ABA) has formed a Preventive Law Task Force.  The Task Force has been investigating the reasons that the concept of preventive legal care has not more quickly emerged as a recognized area of the practice of law. Some of the Task Force's preliminary findings are leading to new proposals and solutions that promise substantial benefits for lawyers, in the context of new clients and services, and for clients, in new options for protecting and improving "legal health."

The Task Force has concluded that two ingredients are necessary to develop a market for preventive legal services:

1. The public must be made aware that just as medical services are best sought on a preventive basis, legal services should be viewed in the same light; and
   
2. Lawyers need to become aware of the many existing resources for helping develop new preventive legal service offerings as well as how they can be packaged into new "products" that clients will value.

The following article, written by former ABA Executive Director Thomas H. Gonser, describes the efforts of the Preventive Law Task Force and some of the actions that lawyers can take to advance the delivery of preventive law services.

Preventive Law: Accomplishing a Revolution in Legal Practice

In addition to helping their clients to use preventive law methods, lawyers are increasingly turning to the same techniques for the conduct of their own practice activities.  Malpractice risks have increased greatly in recent years due to expansions in the grounds for liability and the size of malpractice awards.  In light of these increasing risks, lawyers are seeking more and more to practice law preventively.   Lawyers are realizing that they should pay careful attention to steps that can be taken before a malpractice claim arises to prevent the common mistakes which can give rise to such a claim.  The preventive law methods now being used by conciencious attorneys are described in the articles at the links below.

Practicing Law Preventively

The Role of Technologically Trained Corporate Lawyers in Managing Risk

Librarians and Other Legal Resource Providers

Law libraries, legal research, and legal education are based primarily on the written opinions of appellate courts.  The effective practice of preventive law often requires lawyers and their clients to understand techniques for studying and managing contemplated activities to ensure that these do not lead to liability.  Fortunately, new information gathering and dissemination practices are addressing this need for increased preventive law information.

In the corporate sphere, important information on methods for ensuring corporate law compliance is being exchanged through various types of "best practices" forums.   In these forums, companies describe how they are addressing compliance problems of common interest and concern to the companies participating in the forums.  Some such forums address particular types of industries and associated legal requirements, such as the special legal standards applicable to government contractors.  Others are broader in focus, dealing, for example, with ethical problems in diverse types of concerns.

The following article describes the use of best practices forums as means to shape law compliance programs and to meet federal standards for such programs.  The impact of these forums  on more broadly focused ethics programs and practices is also addressed.

Sharing "Best Practices" Information