Toward a New Model of the Corporate Attorney-Client Relationship, 78 Fordham L
Total Page:16
File Type:pdf, Size:1020Kb
Fordham Law Review Volume 78 Issue 5 Article 2 2010 Team of Rivals? Toward a New Model of the Corporate Attorney- Client Relationship David B. Wilkins Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation David B. Wilkins, Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship, 78 Fordham L. Rev. 2067 (2010). Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss5/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Team of Rivals? Toward a New Model of the Corporate Attorney-Client Relationship Cover Page Footnote Lester Kissel Professor of Law and Faculty Director of the Program on the Legal Profession and the Center on Lawyers and the Professional Services Industry, Harvard Law School. This chapter was originally presented as the Current Legal Problems Lecture at University College London in March 2008. A version of this paper was published in 62 Current Legal Probs. 478 (2010). I thank Lucy Page and the rest of the terrific people at Oxford University Press for giving me permission to reprint the article here. The piece has been updated slightly to reflect certain events that have transpired since the original version was finalized for publication. In addition, I wish to thank Colm O’Cinneide for arranging the lecture and for his outstanding comments on my initial draft. I also wish to thank the faculty and students who attended that event for their helpful comments. I would also like to thank faculty and students at Yale Law School, Georgetown University Law Center, University of California at Hastings College of Law, Stetson University College of Law, University of Iceland Faculty of Law, University of Stockholm Faculty of Law, University of Vancouver Faculty of Law, and my home institution of Harvard Law School for helpful comments when I presented versions of the chapter at these institutions. John Coates, Ben Heineman, Robert Mnookin, Mari Sako, Bill Simon, Detlev Vagts, and Ben Zipursky also provided invaluable feedback on prior drafts. Chris Assise and Jason Silverstein gave terrific esearr ch support and feedback on prior drafts. Finally, I wish to thank my colleagues on the Harvard Law School Corporate Purchasing Project, Michele Beardslee, John Coates, Young-Kyu Kim, Ashish Nanda, and Sean Williams, for their outstanding work in helping to produce the data from that project discussed below. The phrase “team of rivals” is used with apologies to Doris Kearns Goodwin and her book of the same title, which examines how the political rivals that made up Abraham Lincoln’s wartime Cabinet succeeded in working closely together to bring the American Civil War to a successful conclusion, and to the current President, Vice President, and Secretary of State of the United States, who some have referred to as comprising a modern-day “team of rivals.” This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol78/iss5/2 TEAM OF RIVALS? TOWARD A NEW MODEL OF THE CORPORATE ATTORNEY-CLIENT RELATIONSHIP David B. Wilkins* INTRODUCTION From its founding, University College London (UCL) has played a key role in defining-and critiquing-the traditional model of the attorney- client relationship. In this article, I will argue that this rich history has much to teach us about the evolving relationship between large companies and their primary outside law firms as we ponder the likely consequences of the current financial crisis. I will do so by challenging the unstated assumption underlying one of the most widely quoted statements in legal ethics, made by one of UCL's most important founding fathers, Lord Henry Brougham. There is arguably no more quoted, or in the minds of many lawyers beloved, understanding of the duties owed by an advocate to his or her client than Brougham's legendary speech in defense of Queen Caroline. Speaking on the floor of * Lester Kissel Professor of Law and Faculty Director of the Program on the Legal Profession and the Center on Lawyers and the Professional Services Industry, Harvard Law School. This chapter was originally presented as the Current Legal Problems Lecture at University College London in March 2008. A version of this paper was published in 62 CURRENT LEGAL PROBS. 478 (2010). I thank Lucy Page and the rest of the terrific people at Oxford University Press for giving me permission to reprint the article here. The piece has been updated slightly to reflect certain events that have transpired since the original version was finalized for publication. In addition, I wish to thank Colm O'Cinneide for arranging the lecture and for his outstanding comments on my initial draft. I also wish to thank the faculty and students who attended that event for their helpful comments. I would also like to thank faculty and students at Yale Law School, Georgetown University Law Center, University of California at Hastings College of Law, Stetson University College of Law, University of Iceland Faculty of Law, University of Stockholm Faculty of Law, University of Vancouver Faculty of Law, and my home institution of Harvard Law School for helpful comments when I presented versions of the chapter at these institutions. John Coates, Ben Heineman, Robert Mnookin, Mari Sako, Bill Simon, Detlev Vagts, and Ben Zipursky also provided invaluable feedback on prior drafts. Chris Assise and Jason Silverstein gave terrific research support and feedback on prior drafts. Finally, I wish to thank my colleagues on the Harvard Law School Corporate Purchasing Project, Michele Beardslee, John Coates, Young-Kyu Kim, Ashish Nanda, and Sean Williams, for their outstanding work in helping to produce the data from that project discussed below. The phrase "team of rivals" is used with apologies to Doris Keams Goodwin and her book of the same title, which examines how the political rivals that made up Abraham Lincoln's wartime Cabinet succeeded in working closely together to bring the American Civil War to a successful conclusion, and to the current President, Vice President, and Secretary of State of the United States, who some have referred to as comprising a modem-day "team of rivals." 2067 2068 FORDHAM LAW REVIEW [Vol. 78 the House of Lords in 1820, Lord Brougham eloquently stated what many still believe to be the essence of the lawyer's role: "[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences,' though it should be his unhappy fate to involve his country in confusion." For almost two centuries, these words have stood as the embodiment of the ideal of zealous advocacy that lawyers owe to their clients. 2 But of late, there have also been many who have questioned whether such an extreme standard of partisanship-ignoring the "alarm," "torment," and "destruction" of others-is the proper standard for lawyers to take in all circumstances. 3 Specifically, I and others have argued that whatever the value of Brougham's conception in the context in which he made his famous claim-i.e., the representation of an individual criminal defendant facing the unchecked power of the King in circumstances where the defendant's head was quite literally on the line-this understanding has much less to recommend it when we consider how corporate lawyers ought to conceive of their duties, particularly in the area of regulatory 4 compliance. Today, these concerns are especially salient. As the spotlight of blame shines its accusatory light on the cast of characters involved in the current economic meltdown, it is only a matter of time before the inside and outside lawyers who represented the banks and other financial institutions we are currently bailing out will be called upon to take their turn in the dock. 5 1. See Monroe H. Freedman, Henry Lord Brougham, Written by Himself, 19 GEO. J. LEGAL ETHICS 1213, 1215 (2006) (quoting 2 THE TRIAL OF QUEEN CAROLINE 3 (1821)). 2. Id. (discussing the many admiring references to Brougham's quote). 3. William Simon was among the first to mount this critique, see generally William H. Simon, The Ideology of Advocacy: ProceduralJustice and ProfessionalEthics, 1978 WiS. L. REV. 29, but there have now been many others. See generally DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988); DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION (2000); Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988). 4. See generally David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S.CAL. L. REV. 1145 (1993). For the classic argument that the criminal defense context may be ethically distinct from the other work lawyers do, see Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 6 (1975). 5. The unfolding controversy over the role that lawyers for both Bank of America and Merrill Lynch played in the failure to disclose to the shareholders of either company the billions of dollars in bonuses that Merrill intended to pay out prior to the merger of the two institutions may very well be just the opening salvo in this line of attack.