A reader sent me an email with the following question:
Do you recall or have any advice on having a document for clients to sign that acknowledges the risks when they decline a best practices proposal?
The owner of my consulting firm wants me to implement a policy that requires an officer of the client’s company sign a document acknowledging that they understand the risks associated with not implementing a proposal that provides “best practices” solutions.
As an example, a client was provided a proposal to implement an off-site backup solution, but declined it. Two years later, they have a major failure and their local backups were no good. They conveniently do not remember declining such a proposal.
When you present any legal document to a client and ask them to sign it, the client’s first reaction will always be to ask “What is this person trying to take away from me?” In this case, they’d probably think of at least one of the following:
- Recourse. This document probably limits what legal action they could take against you if something goes badly wrong. Your client is wondering whether you could stretch this agreement to cover things that were actually your fault.
- Control. An agreement like this seems to say that the client must follow every recommendation you make. A consultant advises, but does not dictate policy.
- Status. This differs subtly from the previous point. The agreement presumes that when it comes to so-called best practices, you know better than your client does. That may well be the case, but signing it is a broad admission of inferiority.
- Options. I hate the term “best practices” because it implies that there is One Best Way To Do Things. The client may have other ideas based on business needs. The requirements of this document indicate that the consultant thinks inflexibly as a rule, whereas what the client may want is someone with whom they can have a dialogue of discovering the best path.
- Trust. When you ask a client to sign something like this at the beginning of an engagement, it says that you really don’t trust them, and you’d rather not rely on that trust in your relationship. This, by itself, indicates a poor fit.
Given the above, it’s hard to make this into a positive for your client, so you want to avoid it if you can. This prompts the questions: What do you hope to gain from this document? Is there some other way to obtain the desired result?
From the scenario described above, it appears that the client is attempting to punish the consulting firm in some manner for the failure of the backup system. The client may actually think that the consultants did not properly advise them, or they may simply be trying to exploit the situation to gain the upper hand. Either way, the consultants find themselves wishing that they had better documented the advice that they provided. I think they’re killing rats with RPGs, though, by trying to establish a policy whereby the client states in writing in advance that the consultants can cut them loose if the client doesn’t do everything they say to do. I’d prefer more moderate measures:
- Document everything. Simply being able to go back and point out that you advised them to take a certain course of action and that they ignored your advice should solve the problem described above without getting the lawyers involved. Make all your recommendations in writing, and keep a copy.
- Make the dangers clear. Not everything you say prevents the world from blowing up, so you must honestly evaluate the threat level of non-compliance for your clients. If you’re constantly sounding false lupine alarms or predicting the immediate demise of the atmosphere, then you can expect that your clients will ignore most of your warnings.
- Reserve extreme measures for extreme cases. If you feel that in a specific instance your client’s decision to ignore your advice poses a significant threat, you must redouble your objections and document that reiteration. Now may be the time to bring out a legal document. “I feel so strongly about the folly of failing to follow this advice that I want you to sign this acknowledgment. It indicates that I’ve stated the dangers as I perceive them, and that your decision to follow your own course is your own responsibility, made with your full awareness of these warnings.”
- Rely on your standard contract. If you really feel like you need this kind of protection from the stupidity of all of your clients, then don’t slap them in the face with a separate agreement to that effect. Your standard contract should already include a clause that releases you from liability for any damages arising from the use of your work product.
My answer to the question in the title is therefore, “Yes, but not before they make them.” Treat your clients like intelligent human beings until they demonstrate themselves to be otherwise. We technical folks tend to try to apply a final solution to every problem — but people are far more complicated than machines, so every strict policy is likely to trigger all sorts of unintended consequences. Apply them as sparingly as possible.