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The absolutely most fascinating part of this is learning how McKinsey has long argued that making recommendations that businesses may or may not act on does not

The absolutely most fascinating part of this is learning how McKinsey has long argued that making recommendations that businesses may or may not act on does not create legal liability (until this). I’m trying to see that argument applied in any other instance and it becomes totally ridiculous. “You see, your honor, I merely suggested to my client that he kill his neighbor in order to take his land, I didn’t think he’d actually DO it!”

mywittyname 6y ago
I think there are times when this disclaimer makes sense. Industry regulation can be quite complicated and nuanced enough that an action might be illegal despite not seeming so on the surface. They also can vary between jurisdiction. Having an experienced industry lawyer review future business plans is just good sense.
curiousllama 6y ago
Note that the only other place it works like this law. Lawyers are always "providing advice" about complex legal matters, with no actual responsibility for the outcome (with limited exceptions). So the idea that lawyers would apply similar logic to a reasonably-similar circumstance (in terms of complexity, difficulty, potential liability, etc.) is not unreasonable.
- arethuza 6y ago
  I don't know about the US but lawyers in the UK most definitely have liability for what they recommend - if a lawyer gives me advice that ends up causing me £X because it was legally wrong then I'd have a pretty good case for a claim on their professional indemnity insurance.
  - peteretep 6y ago
    Only if you can show negligence
- wittyreference 6y ago
  What? Lawyers are absolutely liable. Their only shield is in the most complex realms where the actual legal theory isn't yet tested in court / with a regulator, so you know going in their advice may not pan out, because it's /experimental/. That's not the vast majority of law, though.
MattGaiser 6y ago
Are they actually legally liable in this case or just paying a settlement to get their name out of the press and get away cleanly from the issue?
frankbreetz 6y ago
>>As part of the settlement, McKinsey admits to no wrongdoing. https://www.npr.org/2021/02/04/963864747/consulting-giant-mckinsey-to-settle-opioid-claims-for-573-million https://www.npr.org/2021/02/04/963864747/consulting-giant-mc...
- ashtonkem 6y ago
  That’s incredibly normal. It’s a regularly negotiated term that’s used to shield the wrongdoer from continued civil liability. Frankly, I think it’s such transparent bullshit that we should abolish it. Really, you admit to no wrong doing but you’re willing to fork over half a billion because ...?
  - phrz 6y ago
    If you're going to be made to pay out and concede liability, why not simply go to trial and suffer the same legal fate? It's not there as a mere legalese recitation or to shield the defendant's ego. To finish your rhetorical question, the reason you pay out but admit no wrongdoing is in recognition of the risk of financial liability stemming from the litigation.
    - deleted 6y ago
      [deleted]
    - vkou 6y ago
      > why not simply go to trial and suffer the same legal fate? The same reason most people take a plea bargain. Punitive damages. "Prison for six months, or the risk of a jury sending you to prison for ten years" is a pretty strong incentive to plead guilty. If the punitive damages can be expected to be 10-20x of what you'd settle for, you'd probably just take the plea.
      - Matticus_Rex 6y ago
        Yeah, but innocent people have to take pleas all the time because of it.
dreen 6y ago
Yeah, if "simply carrying out orders" is not an appropriate defence then "simply given advice on orders" isn't either. Both are caught in the gravitational field of the guilt of the person in the middle.
mumblemumble 6y ago
One would have thought that at least one person on their in-house counsel team would have heard the term "civil conspiracy" before.
LatteLazy 6y ago
This case aside, isn't that a well accepted legal doctrine? Encouraging someone to do something is rarely a crime. Incitement to riot is the only exception I can think of.

mywittyname 6y ago

I think there are times when this disclaimer makes sense. Industry regulation can be quite complicated and nuanced enough that an action might be illegal despite not seeming so on the surface. They also can vary between jurisdiction. Having an experienced industry lawyer review future business plans is just good sense.

curiousllama 6y ago

Note that the only other place it works like this law. Lawyers are always "providing advice" about complex legal matters, with no actual responsibility for the outcome (with limited exceptions). So the idea that lawyers would apply similar logic to a reasonably-similar circumstance (in terms of complexity, difficulty, potential liability, etc.) is not unreasonable.

arethuza 6y ago
I don't know about the US but lawyers in the UK most definitely have liability for what they recommend - if a lawyer gives me advice that ends up causing me £X because it was legally wrong then I'd have a pretty good case for a claim on their professional indemnity insurance.
- peteretep 6y ago
  Only if you can show negligence
wittyreference 6y ago
What? Lawyers are absolutely liable. Their only shield is in the most complex realms where the actual legal theory isn't yet tested in court / with a regulator, so you know going in their advice may not pan out, because it's /experimental/. That's not the vast majority of law, though.

MattGaiser 6y ago

Are they actually legally liable in this case or just paying a settlement to get their name out of the press and get away cleanly from the issue?

frankbreetz 6y ago

>>As part of the settlement, McKinsey admits to no wrongdoing. https://www.npr.org/2021/02/04/963864747/consulting-giant-mckinsey-to-settle-opioid-claims-for-573-million https://www.npr.org/2021/02/04/963864747/consulting-giant-mc...

ashtonkem 6y ago
That’s incredibly normal. It’s a regularly negotiated term that’s used to shield the wrongdoer from continued civil liability. Frankly, I think it’s such transparent bullshit that we should abolish it. Really, you admit to no wrong doing but you’re willing to fork over half a billion because ...?
- phrz 6y ago
  If you're going to be made to pay out and concede liability, why not simply go to trial and suffer the same legal fate? It's not there as a mere legalese recitation or to shield the defendant's ego. To finish your rhetorical question, the reason you pay out but admit no wrongdoing is in recognition of the risk of financial liability stemming from the litigation.
  - deleted 6y ago
    [deleted]
  - vkou 6y ago
    > why not simply go to trial and suffer the same legal fate? The same reason most people take a plea bargain. Punitive damages. "Prison for six months, or the risk of a jury sending you to prison for ten years" is a pretty strong incentive to plead guilty. If the punitive damages can be expected to be 10-20x of what you'd settle for, you'd probably just take the plea.
    - Matticus_Rex 6y ago
      Yeah, but innocent people have to take pleas all the time because of it.

dreen 6y ago

Yeah, if "simply carrying out orders" is not an appropriate defence then "simply given advice on orders" isn't either. Both are caught in the gravitational field of the guilt of the person in the middle.

mumblemumble 6y ago

One would have thought that at least one person on their in-house counsel team would have heard the term "civil conspiracy" before.

LatteLazy 6y ago

This case aside, isn't that a well accepted legal doctrine? Encouraging someone to do something is rarely a crime. Incitement to riot is the only exception I can think of.