“You can’t win, but there are alternatives to fighting.”– Obi-Wan Kenobi
The Academy Awards are known for drama and histrionics (it involves actors, after all) but this year’s edition had a bit more than usual.
As you may have heard, actor Will Smith took umbrage (eventually) at jokes made by comedian Chris Rock, which were at the expense of Smith’s wife, and decided to slap Rock.
There were probably dozens of ways that Smith could have dealt with the issue, and it is hard to see this as the best of them. Smith went the ‘nuclear’ option, drawing a line about what jokes he will tolerate, and putting people on notice that he will react violently when people make fun of his wife.
That might work when the joker is diminutive Chris Rock; if Shaquille O’Neil makes a joke about Smith’s wife, and Smith stays true to this precedent, the actor will be booking a long stay in intensive care. For the short-term pleasure of slapping Rock, Smith has earned life-long condemnation in some corners.
In the legal world, the nuclear option is litigation, and just as Smith should have thought better of slapping Rock, we need to ensure our clients think long and hard before pulling the trigger on court action. It can be very hard to put the brakes on once parties are engaged and money spent; making sure our clients know this is essential.
That approach is even more important in the current crisis enveloping the construction industry, which threatens its viability. A combination of pandemic-induced supply-chain issues and price rises, natural disasters and labour shortages has meant that many builders are struggling to complete contracts for the originally agreed price. That is leading to requests from builders to renegotiate; how we lead clients through this is vital.
It is quite proper to point out that a client can insist on specific rights, and that litigation would likely be successful, but the job does not end there.
Solicitors in Queensland have an obligation to fully inform clients of their options, including alternatives to litigation.1 In addition, the fundamental duty to act in the client’s best interests means we need to ensure they understand the consequences of litigation, including the possibility of a pyrrhic victory which simply sends a builder bankrupt and leaves the client with a half-built house and little prospect of completion any time soon.
We need also be mindful that the courts have looked at how far solicitors need to go when giving advice. While we are not expected to explore every possibility or be able to read the future, relying on the client to ask the right questions will not be enough; and although the construction industry is ground zero for this issue right now, the duty applies to all areas of the law. Those issues are further pursued in this article by Christine Smyth, published on QLS Proctor.
The issues plaguing the construction industry are not unique to it, and it is likely we will see many clients dealing with requests to renegotiate delivery times, prices and scopes in relation to many contracts.
We need to ensure that they are aware of all options, not just litigation, and the likely outcomes of their choices. In many of these contracts, it is likely that begrudgingly renegotiating will be better (and cheaper) in the long run than doing the legal equivalent of slapping Chris Rock.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.
1 See Rule 7, Australian Solicitors Conduct Rules 2012.