Mutually Assured Irresponsibility

“A striking feature of many corporate or other scandals is how organisations and their lawyers construct a system of mutually assured irresponsibility. Some of this is done artfully, some without even thinking about it. The problem often, subtly or unsubtly, comes down to this: the client says they did what they did because the lawyer advised them it was legal and the lawyer says they were mere advisers following instructions.”

These are the opening sentences in an article published by Richard Moorehead on September 18 2021.

Whilst the article was written in response to the UK post Office scandal, the behaviour identified can be seen across multiple landscapes.

For well over a decade I have been speaking to the Australian construction industry about the parlous outcomes we are achieving in the industry and the underlying causes of this.

I have posed head on to largely legal audiences the very question why the construction contracts we are drafting in Australia are so adversarial. That legal audience gave me this very answer: "This is what we are instructed to do by our clients." I then asked the clients and they said: "This is what our lawyers advise us to do". And when I point out this conundrum to them both, they then turned on the financiers.

The problem with seeing this is knowing that it is one of the behaviours that is keeping us trapped in the very outcomes we are complaining of.

Richard Moorehead goes on to astutely say:

"There are two convenient features of this: (1) no one is to blame when the proverbial hits the fan and (2) the factual accuracy of who did what and why lies hidden behind legal professional privilege. Sometimes, as appears to be the case in the Levitt report, when the veil is lifted, the lawyer is seen to be telling the client exactly what the client should do and doing so on shaky legal grounds."

Now that you are aware of "Mutually Assured Irresponsibility", have you seen it too?

There are ways to break the cycle.