Thursday, November 15, 2007
MOVING TO FRONT--SEE NEW UPDATE
-----originally posted Nov. 9------
This is not my field at all, but it seems to me that this new article by William Simon (Columbia) is bound to generate considerable discussion. Here is Professor Simon's abstract:
Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.
And here is how one of my colleagues summarized the import of the piece:
I bring to your attention an article written by Bill Simon, published at SSRN, that meticulously analyzes ethics opinions written by Geoffrey Hazard [emeritus, Yale; now UC Hastings], Charles Wolfram [emeritus, Cornell], Roy Simon [Hofstra], and Bruce Green [Fordham] and concludes that these opinions are clearly wrong on the law. Bill concludes that these experts “played important roles as enablers of pernicious practices.” He chronicles an alliance of underground practices between litigators and their academic consultants “designed to immunize each other from accountability.” The ethics opinions are included in an appendix.
UPDATE: More thoughts on Professor Simon's article from another legal ethics expert.
ANOTHER (NOV. 15): Professor Simon replies to critics.