Harold Monteau: Don't shoot a messenger for tribal sovereignty

One of the things I have learned in approximately 30 years involved in Federal Indian Law is that Tribal Leaders don’t like to be told “no” or “that wouldn’t work because” or “that might not be legal” or “you probably shouldn’t do that” or “here are the real risks." If you want to survive as an “out-house” attorney, you have to develop the ability to dance around on top of a knife and say “no” as nicely as possible. That is true in a lot of situations in life when people don’t want to hear that they may not be “quite right” or they want you to tell them “what they want to hear” as opposed to what they should hear. People tend to want to “shoot the messenger” for saying “the emperor is naked” when everyone else is telling the Emperor “what fine clothes you have”.

The dance I just mentioned is particularly intense when you are an in-house legal counsel, as you may get summarily fired if you don’t go along to get along with the Chairman or Corporate Boards or Managers. Of course you have to be extra diplomatic and say “you can try it but here are the risks”. Sometimes you have to make the professional choice of whether you can continue to work for that client if they do what you are advising them not to do. Sometimes that choice is made for you by the Ethical Requirements of whatever State Bar (and Tribal Bar) in which you may be a member. These Ethical Requirements have to be followed in the jurisdiction you are Barred in, but also apply when you work with a client in another jurisdiction, even Tribal. You cannot commit an Ethical Violation in another jurisdiction that would be an Ethical Violation in one or more of the jurisdictions in which you are licensed.

It can be an Ethical Violation, and you can commit Legal Malpractice, if you fail to warn your client of consequences (even potential ones), especially if it is an area where the legality of the activity can be questionable. If your client is “fully informed” and takes the risk, you cannot be held liable, but you also have to make sure that you are not open to any criminal accusations as a “participant” or as a “co-conspirator” who is benefiting from what may be an illegal scheme.