By Jake Rudman, Media Law Barrister and Mediator

Lawyers are not paid to do nothing.

That statement may appear self-evident, but it also gives rise to a conundrum: Clients do not expect us to do nothing, having spent their hard-earned money on our supposed wisdom up until that point. And when we do suggest doing nothing as a next step, we know that we will not be able to charge anything for it.

The corollary is therefore usually that we do something, often a lot.

Nothing is frequently the best option for the client, though. Even for those lawyers (I do hope the majority) who do not carry a conscious dedication to churning fees, it is easy to forget this because we are trained and conditioned to work; to engage; to do.

Even in litigation, the tactical benefits of inaction can often reap significant rewards and, of course, can be undertaken for a fraction of the price of drafting correspondence and pleadings. This is particularly so when dealing with an irascible or unpredictable opponent, whose responses can lead to more aggravation and are unlikely to facilitate resolution.

When dealing with urgent matters or imminent deadlines, many are inclined to fire off reactive emails as soon as they can get their fingers to the keyboard (or smartphone). I had one highly contentious claim years ago in which I was regularly receiving emails from a Silk at the stroke of midnight. They were rarely as carefully considered as the correspondence which he was sending within office hours. Forging the time and space to take client instructions properly and respond with a fresh mind the following morning is seldom a mistake.

This is not to encourage laziness. Indeed, in certain situations, nothing can still be a labour-intensive option. In media law, where crisis PR plays a prominent role when acting for someone whose reputation is on the line, whatever the public stance taken, it is crucial to take preparatory measures. Where the fear is that it will be published, a meticulous and multifaceted plan must be devised for when the it hits the fan.  That might include preparation of a press release, a missive to all media outlets known to man, and template pre-action letters for any would-be publisher, not to mention preparation of the requisite documents for interim injunctive relief if appropriate. In fact, so high is the cost of this ostensible nothing that it will be prohibitive for any client to whom money is an object.

Likewise, when advising the media pre-publication, there is always time sensitivity. That urgency is sometimes inescapable, but occasionally, especially if the risk is high and the story subject is litigious, the best advice for journalists is to publish nothing, and go back to double check their sources in order to bolster a truth or public interest defence.

In more unique and novel situations, that first step of countenancing nothing and advising the client that it is a primary option often goes missing in the fray.

In blackmail cases, the conventional perception is that nothing is usually the least bad option. Paying the ransom suggests to the blackmailer that more money will follow down the line. Conversely, ‘going legal’ escalates costs considerably and is unlikely to garner civil negotiations, given the opponent is someone with enough contempt for the law that they will commit a criminal offence in order to extort an innocent person with their naked photographs.

Nevertheless, it is difficult to think of other legal scenarios in which this nothing approach is widely considered prudent, let alone the recognised default.

We are so hard-wired as service professionals whose value derives from an hourly rate, that, even subconsciously, I believe we skew aberrantly towards action.

Barristers could take a leaf out of the medicine book on this: Our doctors are trained to tell patients that nothing is a key part of the three treatment options: (1) ‘Conservative’ (do nothing, introduce lifestyle changes); (2) ‘Medical’ (drugs); and (3) Surgical Intervention. The risks of each, including nothing, must be carefully considered, but likewise the side effects of prescription medicine or surgery should be weighed in the balance.

Medics do sometimes talk pejoratively of the concept of ‘clinical inertia’, by which a doctor fails to prescribe a patient the requisite drugs, even though their lifestyle choices mean that, without intercession, they will suffer a serious or fatal setback in the near future. However, in law, we are rarely dealing with long-term symptoms and comorbidities. Clients usually come to us with a new, relatively isolated issue, for which they need a one-off prescription.

The temptation can be overwhelming to tell them everything we have learned, and by which we are fascinated, as well as all the interesting developments which could arise between now and our grandstand in the Supreme Court on that arcane subsection we’ve been discussing with our colleagues. But I hasten to say we are less important than healthcare professionals, and there are many more contributing factors which go into this person’s life than the one pressing issue which has brought them to our Chambers. We must detach our egos and very carefully consider whether surgical intervention in the Royal Courts of Justice is really what will best help this person long-term.

Not only is there an ethical imperative to seriously consider doing nothing in the client’s best interests, but their gratitude for a cost-effective solution will more often than not lead to further instruction down the road, from them or their contacts.

Jake Rudman, Media Law Barrister and Mediator