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Practice of Law, The "CYA Memo," Informed Consent, and Lawyers’ Standard of Care

• February 27, 2013

The CYA or "cover your ass" memo is standard issue body armor in the trenches of white-collar warriors. The CYA nickname suggests a insurance policy taken out by a person who is undertaking or witnessing a course of conduct (or misconduct, or culpable non-conduct) from which the author wants to protect his or her professional posterior. People regard "CYA memos" as cowardly, shameful, and a sign of distrust.

I ask you to reconsider. Maybe there is another better name for the maligned "CYA memo:" informed consent. People focus on the benefit of the CYA memo to the sender if and when things blow up down the road from a poor decision. People overlook the power of written informed consent to communicate to clients the gravity and seriousness that a lawyer might attach to a particular proposed strategy (i.e., "wake the f**k up") which very often avoids the disaster at the front end.

Consider, for example, a lawyer who advises her client to undertake a basic precaution as part of a larger legal strategy (say, hiring an independent appraiser in a dispute over the valuation of marital assets) and imagine the client, orally, rejects the advice. ("My poor soon-to-be ex-husband is a loser but not a liar," one might imagine a client naïvely saying.) Maybe the lawyer revisits the issue but the client still holds fast.

Imagine the lawyer accedes to the client’s wishes, fails to communicate in writing exactly what the stakes may be in undertaking this naïve and short-sighted strategy, and the risk that could have been avoided comes to fruition.

Should the client be able to sue the lawyer for malpractice? She might have quite a challenge. After all, it was her own stubborn position that caused the problem, right? Maybe she should lose. On the other hand, she’s the client. She’s the unsophisticated vulnerable and inexperienced client who has come to the lawyer for sound legal advice. Maybe she should win.

Putting to one side that, without a writing the chances of differing recollections is not just foreseeable but probable, aren’t clients entitled to formal written notice, to clear and express informed consent, in case they are unwittingly prancing into a minefield? Shouldn’t lawyers be obligated to state their misgivings and concerns in writing when clients suggest pouring gasoline on a fire or ignoring the deafening roar of some huge approaching threat, so that clients are made aware of the potential seriousness of their decisions?

The standard of care in our legal community should include a duty to provide written notice of any substantial deviations from standard practice at the instruction of clients (and a duty to confirm that the message was received and was read).

Anything less is a disservice to clients and an "out" for bad lawyers. (Bad lawyers have been known to fabricate oral authorization of indefensible legal positions or strategies after the fact.)

So-called "cya memos" should not simply be looked at as a matter of "best practices" to defend against the risk of later claims of professional malpractice. They should be considered obligatory for the clients’ protection, not the lawyers. And under the Minnesota Rules of Professional Responsibility (Rule 1.0(b) and Rule 1.0(f)), I would suggest to you that they are.

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