Occupy Biglaw(?)
Should the grievances motivating the “Occupy” movement cause corporate law firms to rethink their role in the financial services industry? Are attorneys who counsel banks and investment outfits really acting as counselors, or merely as facilitators? Interesting questions.
Writing in today’s National Law Journal, Columbia Law School professor Katherine Franke argues that “the [Occupy Wall Street] protests should motivate us to consider anew what it means to be a professional lawyer, particularly in a climate where our expertise is being used to provide cover for otherwise unethical financial practices.”
Franke writes:
By and large, it’s investment bankers who have been in the protesters’ crosshairs, but the Occupy Wall Street (OWS) demonstrations also offer an opportunity to consider what role lawyers may have played in the creation of these sophisticated financial instruments, enabling the overreaching decried on the OWS protesters’ placards. Behind every credit default swap or short of subprime mortgage-backed assets sit legal counsel sanctioning these practices. The greed that has motivated bankers to sacrifice the public’s interests for short-term personal gain has been made possible, in no small part, by the work of lawyers.
…
As legal educators, we are reminded to teach our students that being a “good lawyer” must include the cultivation of responsible moral judgment. Implicit in the OWS protests is a condemnation of an approach to lawyering that regards all legal rules simply as the price of misconduct discounted by the probability of enforcement: Skirting too close to, if not over, the limits of law is seen as the cost of doing business, or as my colleagues trained in economics call it, “efficient breach.”
This kind of zeal at the margins was wholeheartedly condemned by the likes of former U.S. Supreme Court Justice Louis Brandeis, who taught us that responsible lawyers play a regulatory role with regard to their clients: “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people.” These words of Brandeis are as true today as they were when he wrote them in 1914.
