Worthwhile article by Sujeet Indap in the FT today headlined "How culpable are external lawyers in corporate wrongdoing?" based on a recent academic paper by Elise Maizel, "Corporate Lawyers, Disloyalty, and the Opioid Crisis."
FT piece - subscription required: https://lnkd.in/gbqgJNfy
Abstract (and link to full paper) - both open access: https://lnkd.in/g7b6CXbk
I think Maizel is definitely on to something:
"There is a prevailing cultural narrative that lionizes zealous advocacy by a lawyer on behalf of their client. Aspirational young lawyers are raised on stories of brave and selfless lawyers pursing justice on behalf of wronged clients. We see these narratives play out in fiction—Atticus Finch! And in the true stories of the great lawyers... Many law students come to law school seeking to emulate these zealous advocates, deploying 'zealous advocacy' in service of a wide variety of clients and causes. But, beneath the surface, the generally applicable norms around the kind of lawyering that is acceptable, commendable, and prized in the context of representing individuals do not map neatly onto corporate representation."
and
"Lawyers want to be seen as good people. Under the dominant view of professional norms, the ideal of 'zealous advocacy' allows corporate lawyers to rationalize, even justify conduct that is harmful to the public— even conduct that laps at the shores of illegality. And when this conduct is wrapped in a narrative that valorizes corporate lawyers as 'serious people' worthy of deference, corporate bad actors can trade on the good name of prominent law firms to protect themselves. Howard Udell [Purdue's head in-house lawyer] was certainly a villain in the story of the opioid crisis, but he was also a victim of a cultural narrative that said to be unapologetically loyal to his client, he would need to blind himself to the harm Purdue caused or to hide those harms from the world as long as he could."
I recall that Travis Laster in his excellent February 2022 speech on this topic* used the memorable phrase "altruistic extremism."
*On YouTube, and transcribed informally here - https://lnkd.in/gbZcREwz
A couple of quibbles from me are:
1) I have my doubts about the suggested "new story" about loyalty to the corporate's "promise" of obedience to the state. It feels to me to be an additional theoretical abstraction which is (1) unneeded by those who believe in lawyers' obligations to society and the rule of law, yet (2) unlikely to convince those who prefer some variety of the Friedman Doctrine / Gordon Gekko Doctrine.
2) The individual / corporate distinction is only approximately relevant. The abuse of law and litigation by wealthy individuals is also a thing, and smaller companies are among the victims of such abuse.
But I agree with the gist of the article that shifting the cultural narrative is certainly a key issue, whatever's one preferred way of putting it.
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