The is nothing like a good free legal opinion on the line to the doctor !

The is nothing like a good free legal opinion on the line to the doctor !

Doron Afik, Esq.
May 26, 2022

"HMO talks" is a name I gave many years ago to a situation where a client is accompanied by our firm, which builds for him a complete strategy of conduct (whether in commercial negotiations or a complex litigation process) and then, at the critical moment, the client comes up with novel ideas because "someone" told him that there is a better or more correct way. That new "expert" might be a professor of law and economics (with a PHD in nuclear physics combined with a PhD in international relations and diplomacy) who happened to be sitting next to him while waiting in line for a doctor. Of course, the expert's reasoned and thorough opinion was not in writing, was not based on full information and has no meaning other than to cause harm. The Supreme Court of Israel also thinks so.

A criminal offense requires two components: a "criminal act" (Actus Rea) and a "criminal thought" (Mens Rea), with the meaning of each of such terms varying based on the definition of the offense under law. In some cases, relying on a lawyer's legal advice may constitute a criminal defense, but the Supreme Court of Israel has outlined clear rules as to what a meaningful legal opinion is and hence (and this also has implications for non-criminal issues) what a "serious legal opinion" is. A legal advice must be based on the full relevant and accurate factual infrastructure for a particular case, the lawyer must have expertise in the field in which the legal opinion is sought (and in complex issues the lawyer must be highly proficient in all relevant legal disciplines) and the opinion must be prima facie "serious" therefore in some cases should be in writing and reasoned. Of course it is also required that the criminal defendant did indeed act in accordance with the legal opinion and did not disregard it.

In a case decided by the Israeli Supreme Court in May, 2022, an antitrust offense was conducted by a group of contractors who decided together not to participate in a government tender and inter alia contended to rely on legal advice because a lawyer was involved in the proceedings and did not flag out the criminal offenses. The Supreme Court did not only reject such contention but the Honorable Justice Dafna Barak-Erez also clarified that the circumstances of the case well illustrate the well-known importance of the role of legal advisers as gatekeepers. While lawyers are proactively required to warn against the criminal aspects of the acts, also those who need legal services are obliged to pose difficult questions and act seriously to clarify them, and not just take a “don’t ask, don’t tell” approach.

The aforesaid regarding criminal offenses is also true for actions at the commercial or corporate level. A person can not rely on an opinion received from an "expert" by change on the line to a doctor (or in any other situation where it is not a lawyer with expertise, business understanding and knowledge of all the relevant facts) to make commercial decisions and such may find himself damaging his interests, but sometimes even exposed to lawsuits from third parties.

The issue of professional legal advice is even more important when it comes to a company officer, and certainly a public company officer, who is obliged not only to receive legal advice, but the legal advice will be by a person with expertise in the field and with the legal advisor regularly involved in the company, knows all the relevant facts (and here, if there is any doubt as to whether a particular issue is relevant then there is no doubt: everything is relevant), and the officer also acts in accordance with the legal advice received. Moreover, a company officer is also required to pose difficult questions to the legal advisor and act to clarify such.