DOCSLIB.ORG

The Banality of Fraud: Re-Situating the Inside Counsel As Gatekeeper

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Banality of Fraud: Re-Situating the Inside Counsel As Gatekeeper Fordham Law Review Volume 74 Issue 3 Article 3 2005 The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper Sung Hui Kim Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Digital Par t of the Law Commons Commons Network Recommended Citation Logo Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, 74 Fordham L. Rev. 983 (2005). Available at: https://ir.lawnet.fordham.edu/flr/vol74/iss3/3 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]. The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper Cover Page Footnote Associate Professor of Law, Southwestern University School of Law. Please send comments and reactions to [email protected]. Special thanks to Mitu Gulati, Mitt Regan, and David Wilkins for their generous time, thoughtful comments, and advice. Thanks to the following people for their valuable comments: Rick Abel, Max Bazerman, Bill Bratton, Joseph Dodge, Frank Gevurtz, Jerry Kang, Kim Krawiec, Don Langevoort, Jeff Rachlinski, Robert Rosen, and Bill Widen. Thanks to Bruce Green for additional assistance. Thanks also to Lucian Pera and the Association of Corporate Counsel for providing me with important copyrighted research. Thanks to Peter Barton Hutt, Kimberly Kirkland, Diane Rosenfeld, and Marsha Wertzberger for their inspiration and encouragement. Thanks to Nicole Charney, Kyndra Casper, and the Leigh H. Taylor Southwestern University Law Library for research assistance. Finally, I dedicate this piece to Jerry and Taera Kang. Of course, all errors are entirely my own. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol74/iss3/3 THE BANALITY OF FRAUD: RE-SITUATING THE INSIDE COUNSEL AS GATEKEEPER* Sung Hui Kim** IN TRO D UCTIO N .......................................................................................... 984 I. Two MODELS OF FRAUD ................................................................ 988 A . The Venality Hypothesis.......................................................... 988 B. The Banality Hypothesis ......................................................... 992 C. Focusing on Inside Counsel .................................................... 997 II. THE ETHICAL ECOLOGY OF INSIDE LAWYERS ............................. 1001 A . The Situation ......................................................................... 100 1 1. M ere Em ployee ............................................................... 1001 a. Obedience Pressures................................................. 1001 b. ThreatenedSelf-Interest ............................................ 1005 2. Faithful A gent ................................................................. 1008 a. Alignment Pressures.................................................. 1008 b. Role Ideology ............................................................. 1012 3. T eam Player .................................................................... 10 19 a. Conformity Pressures................................................ 1019 b. OrganizationalSilence .............................................. 1024 B . The Cognition ........................................................................ 1026 1. Self-Serving B ias ............................................................ 1027 2. M otivated Reasoning ...................................................... 1029 III. RECENT REFORM: MISUNDERSTANDING THE ETHICAL E CO LO G Y ..................................................................................... 1034 A . B ackground ........................................................................... 1034 * This title is adapted from Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Revised and Enlarged ed., Penguin Books 1994) (1963). ** Associate Professor of Law, Southwestern University School of Law. Please send comments and reactions to [email protected]. Special thanks to Mitu Gulati, Mitt Regan, and David Wilkins for their generous time, thoughtful comments, and advice. Thanks to the following people for their valuable comments: Rick Abel, Max Bazerman, Bill Bratton, Joseph Dodge, Frank Gevurtz, Jerry Kang, Kim Krawiec, Don Langevoort, Jeff Rachlinski, Robert Rosen, and Bill Widen. Thanks to Bruce Green for additional assistance. Thanks also to Lucian Pera and the Association of Corporate Counsel for providing me with important copyrighted research. Thanks to Peter Barton Hutt, Kimberly Kirkland, Diane Rosenfeld, and Marsha Wertzberger for their inspiration and encouragement. Thanks to Nicole Charney, Kyndra Casper, and the Leigh H. Taylor Southwestern University Law Library for research assistance. Finally, I dedicate this piece to Jerry and Taera Kang. Of course, all errors are entirely my own. 984 FORDHAM LAWREVIEW [Vol. 74 1. Sarbanes-Oxley Section 307 ........................................... 1034 2. 2003 Amendments to the Model Rules ........................... 1039 B . Critique .................................................................................104 1 1. M ere Employee ............................................................... 104 1 2. Faithful A gent ................................................................. 1044 3. M otivated Reasoning ...................................................... 1048 IV. ALTERNATIVE REFORM: TRANSFORMING THE ETHICAL E CO LO G Y ...................................................................................... 1053 A . Structure................................................................................ 1054 B. Whistle-Blower Protection.................................................... 1064 C . Com pensation ....................................................................... 107 1 D . Ethical N orms ....................................................................... 1073 C ON CLU SIO N ........................................................................................... 1075 White-collar offenders are generally better educated and more sophisticated than most criminals. They commit their crimes not in a fit of passion, but with cold, careful calculation. Accordingly, they are the most rational offenders and are more likely than most to weigh the risks of possible courses of action against the anticipated rewards of criminal behavior. 1 A situation exerts an important press on the individual .... [I]t is not so much the kind of person a man is, as the kind of situation in which he is 2 placed, that determines his action. INTRODUCTION One thing we learned from the recent wave of corporate scandals is that lawyers behaved badly. 3 More specifically, inside lawyers 4 behaved badly. 1. Penalties for White Collar Offenses: Are We Really Getting Tough on Crime? Hearing Before the S. Subcomm. On Crime and Drugs of the Comm. on the Judiciary, 107th Cong. (2002) (statement of the Honorable James B. Cormey, Jr., United States Attorney, Southern District of New York), available at http://judiciary.senate.gov/testimony.cfm?id=280&witid=650. 2. Stanley Milgram, Some Conditions of Obedience and Disobedience to Authority, 18 Hum. Rel. 57, 72 (1965). 3. See, e.g., Final Report of Neal Batson, Court-Appointed Examiner, app. C, at 1, In re Enron Corp., No. 01-16034 (Bankr. S.D.N.Y. Nov. 4, 2003) Role of Enron's Attorneys), available at http://www.enron.com/corp/por/examinerfinal.html [hereinafter Batson Report Appendix C] ("[T]here is sufficient evidence from which a fact-finder could conclude that certain of Enron's attorneys involved in its [special purpose entity] transactions (i) committed legal malpractice based on Texas Rule 1.12, (ii) committed legal malpractice based on negligence or (iii) aided and abetted the Enron officers' breaches of fiduciary duty."); Stephen M. Cutler, Div. of Enforcement, U.S. Sec. & Exch. Comm'n, Remarks at the University of Michigan Law School (Nov. 1, 2002), available at http://www.sec.gov/news/speech/spch604.htm ("Yet, as of late, many inadequate or even fraudulent disclosure documents have reached the public, almost certainly after having been scrutinized by experienced corporate counsel."). 2005] THE BANALITY OF FRAUD Bankruptcy Examiner Neal Batson's Final Report on Enron's collapse depicts an uninformed, hands-off, delegating, and detached Chief Legal Officer: Enron's General Counsel James Derrick "rarely provided legal advice to Enron's Board even when significant issues.., came to his attention" and when he did advise the Enron Board, he "failed to educate himself adequately on the underlying facts or the applicable law to enable him to carry out his responsibilities as legal advisor." 5 But Derrick, and his legal department,6 are not alone. The list of ethically challenged inside attorneys include those at Arthur Andersen, Tyco, Rite Aid, Symbol Technologies, Inso, Warnaco, Gemstar-TV Guide, Computer Associates 7 International, and Google. Recognizing that many of these lawyers facilitated illegal transactions or failed to act to protect the organizational client, Congress passed a statute singling out inside counsel, for the first time in U.S. history, for special treatment in the fight against securities fraud. It enacted section 307 of the Sarbanes-Oxley Act of 2002,8 which-among other things-designates the Chief Legal Officer
Load more

Recommended publications
  • At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct Paul R
    Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 2018 At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct Paul R. Tremblay Boston College Law School, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/lsfp Part of the Business Organizations Law Commons, Legal Ethics and Professional Responsibility Commons, and the Organizations Law Commons Recommended Citation Paul R. Tremblay. "At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct." Florida Law Review 70, no.2 (2018): 251-314. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. AT YOUR SERVICE: LAWYER DISCRETION TO ASSIST CLIENTS IN UNLAWFUL CONDUCT Paul R. Tremblay* Abstract The common, shared vision of lawyers' ethics holds that lawyers ought not collaborate with clients in wrongdoing. Ethics scholars caution that lawyers "may not participate in or assist illegal conduct," or "giv[e] legal services to clients who are going to engage in unlawful behavior with the attorney as their accomplice." That sentiment resonates comfortably with the profession's commitment to honor legal obligations and duties, and to remain faithful to the law. The problem with that sentiment, this Article shows, is that it is not an accurate statement of the prevailing substantive law. The American Bar Association's (ABA) model standards governing lawyers prohibit lawyers from assisting clients with illegality, but only in certain defined categories-that is, crimes and frauds.
    [Show full text]
  • Undergraduate Mods
    Contents Introduction and general administration................................................................................................ 4 Versioning ........................................................................................................................................... 5 The role of the Faculty and the college .............................................................................................. 5 Key Contacts........................................................................................................................................ 6 The Law Faculty and the St Cross Building .......................................................................................... 6 Induction events ................................................................................................................................. 6 The lecture list..................................................................................................................................... 7 Academic Dress ................................................................................................................................... 7 Dates of Term ...................................................................................................................................... 7 Oxford Students website .................................................................................................................... 7 Student Handbook .............................................................................................................................
    [Show full text]
  • Treaty Law Vs Customary Law
    Treaty Law Vs Customary Law Phagedaenic and Himyaritic Morly never melt his ensurers! Sometimes humoral Thad liquidises her obligingness smooth, but gap-toothed Phineas sipe largo or call boisterously. Unjoyous and monoclinous Harry protuberate some ascesis so asymptomatically! Yet equally great merit, would be different norms simply, treaty law only as right of interpretation of the tribunal could be a certain that only be unfortunate if any One should enjoy their disagreement, but online databases on treaty law vs customary law have been common fundamental problem. In domestic law review articles, depending upon it is no superior or conjointly, treaty law vs customary law is either. Two cases implicated by force, and objective facts about it may not recognize a state practice it absurd conclusions reached an absolute grant of treaty law vs customary law did not extend it? United states dominate international judicial dialogue regarding polygamy is a serious consequences will simply no longer possible sanctions earlier, treaty law vs customary law? Are responsible merely progressive development and. Whether these same is not conflict may have standing of legality prohibiting polygamous marriages. Enter your website uses cookies and now to apply even in treaty law vs customary law, but also be reconciled with domestic criminal law enforced consistently provide. Customary international treaty law vs customary law? State practice together, treaty law vs customary law specific crimes. For an identity claimed, treaty law vs customary law norms on. Canadian supreme court by saying that indigenous peoples that not a binding compacts between treaty law vs customary law or statute as declarations.
    [Show full text]
  • The Case Against Equity in American Contract Law
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2020 The Case Against Equity in American Contract Law Jody S. Kraus Columbia Law School, [email protected] Robert E. Scott Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Contracts Commons, Criminal Law Commons, Criminal Procedure Commons, and the Legal Remedies Commons Recommended Citation Jody S. Kraus & Robert E. Scott, The Case Against Equity in American Contract Law, 93 S. CAL. L. REV. 1323 (2020). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2537 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. THE CASE AGAINST EQUITY IN AMERICAN CONTRACT LAW JODY P. KRAUS* & ROBERT E. SCOTT† The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation, and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. However, when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete.
    [Show full text]
  • Reforming Lawyer Mobility—Protecting Turf Or Serving Clients?
    Reforming Lawyer Mobility—Protecting Turf or Serving Clients? JAMES W. JONES,* ANTHONY E. DAVIS,† SIMON CHESTER,‡ AND CAROLINE HART§ ABSTRACT In this Article, we describe in detail the current problems with the regulation of lawyer mobility in the United States and the compelling reasons that a fundamental change in the present approach is required. We contend that the current rules regarding multijurisdictional practice by licensed lawyers impede the ability of clients to achieve more efficient and cost effective legal services, are unnecessary to protect the interests of clients, and undermine the integrity of the overall regulatory structure by articulating requirements that as a practical matter cannot be complied with. Drawing on lessons from Australia and Canada, both common law countries with a long tradition of regulation of the legal profession at the state/provincial levels, we offer a proposal for the recognition of rights of practice of all American lawyers engaged in federal or interstate matters in all American jurisdictions. This proposal, if adopted, would enable clients to use counsel of their choice on a nationwide basis. Such a change is critical if American lawyers are to remain responsive to the legitimate expectations and demands of their clients and true to the highest standards of professionalism. TABLE OF CONTENTS INTRODUCTION.......................................... 128 I. A BRIEF HISTORY OF THE REGULATION OF LAWYERS IN THE UNITED STATES..................................... 128 II. THE CURRENT PROBLEMS WITH THE REGULATION OF LAWYER MOBILITY IN THE UNITED STATES ....................... 130 * James W. Jones is a Senior Fellow at the Center for the Study of the Legal Profession at the Georgetown University Law Center.
    [Show full text]
  • Rules of Professional Conduct for Attorneys (Annotated)
    LAWYER PROFESSIONAL STANDARDS RULES AND CASES INTERPRETING SCR, CHAPTER 20 This document is intended to assist the profession and the public in its research and understanding of how the ethics rules have been interpreted and applied by the Supreme Court. Links to each ethics rule are provided for easy navigation. Each link takes one to the rule, comments, and annotations (notes about the interpretation of standards with citations to cases). Generally, cases are cited that interpret the rules in effect beginning July 1, 2007, the effective date of the rules implemented after Wisconsin completed review of the ABA proposed Ethics 2000 recommendations. In many cases, however, cases interpreting prior versions of the rules are noted where the information would be helpful and where more recent cases are few. Also, there is an occasional citation to a consent public or private reprimand where the information is helpful. Consent public or private reprimand summaries are not interpretations of the Supreme Court yet may provide helpful guidance. This document contains the rules and comments in Supreme Court Rules, Chapter 20, as they were in effect on January 1, 2021. Following the comments to each rule, this document contains annotations based on cases contained in the Compendium of Professional Discipline located at OLR’s website: www.wicourts.gov/olr. The annotations also include summaries of related State Bar of Wisconsin Formal Ethics Opinions. These are found after the annotations under the heading “Ethics Opinions.” This document will be updated regularly. The next update is expected to be published in the spring of 2022. Corrections and suggestions are welcome and may be forwarded to OLR, ATTN: Director, and emailed to [email protected].
    [Show full text]
  • New York Court of Appeals Creates an Exception to Employment At-Will Doctrine for Attorneys Who Blow the Whistle on Unethical Colleagues
    St. John's Law Review Volume 67 Number 3 Volume 67, Summer 1993, Number 3 Article 11 New York Court of Appeals Creates an Exception to Employment At-Will Doctrine for Attorneys Who Blow the Whistle on Unethical Colleagues Sharon Garb Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. New York Court of Appeals creates an exception to employment at- will doctrine for attorneys who blow the whistle on unethical colleagues For almost a century, New York courts have adhered to the common-law doctrine of at-will employment.' This doctrine presumes an employment relationship to be terminable by either party, for any reason, at any time, leaving the employee with no legal redress against the employer for wrongful discharge.2 State courts in many jurisdictions have fashioned various contract and tort law exceptions to this rule, such as the public policy excep- tion,3 the implied contract exception,4 the covenant of good faith 1 See Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416, 417 (1895). Martin was the seminal employment at-will decision in New York. Id. In holding that the plaintiffs hiring was at-will and terminable at any time by the de- fendant employer, the court stated: "[Tihe rule is inflexible that a general or indefi- nite hiring is, prima facie, a hiring at-will; and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof." Id.
    [Show full text]
  • Taming the Unruly Horse: the Treatment of Public Policy
    TAMING THE UNRULY HORSE: THE TREATMENT OF PUBLIC POLICY ARGUMENTS IN THE COURTS Kota Kinabalu, 19 February 2019 The Honourable Chief Justice Sundaresh Menon Supreme Court of Singapore The Right Honourable Datuk Seri Panglima David Wong Dak Wah, Chief Judge of Sabah and Sarawak Yang Berhormat Datuk Ahmad Abdul Rahman, Deputy Speaker of the Sabah State Legislative Assembly The Honourable Justice Dato’ Mary Lim Thiam Suan, Judge of the Malaysian Court of Appeal Honourable Judges and Judicial Commissioners Judicial officers, Members of the Bar Distinguished guests, Ladies and gentlemen I. Introduction 1. The legal scholar Ran Hirschl has argued that “[t]he judicialization of politics—the reliance on courts and judicial means for addressing core moral I am grateful to my former law clerks, Ho Jiayun and Torsten Cheong, and my colleague, Assistant Registrar Scott Tan, who assisted me with the research for and preparation of this address. predicaments, public policy questions, and political controversies—is arguably one of the most significant phenomena of late twentieth- and early twenty-first- century government”.1 If one considers the lengthy and varied catalogue of examples cited in his article, one would be hard pressed to disagree.2 2. In Hungary, the Constitutional Court struck down one-third of all laws it reviewed in the 1990s, including the so-called Bokros Package of austerity measures which were deemed too harsh because they enacted drastic cutbacks on the post-communist welfare system.3 In Canada, the Supreme Court was asked to consider the ultimate political question of whether the province of Quebec could secede from the State of Canada.4 In the United States, the recognition of a right to privacy as an unenumerated constitutional right5 has made the Supreme Court the epicenter of the Culture Wars, turning it into the principal battleground for debates over contraception,6 abortion,7 sodomy laws,8 and – most recently – same sex marriage.9 But it is perhaps in India where this trend has reached its zenith.
    [Show full text]
  • LEGAL ETHICS IS NO LAUGHING MATTER… OR IS IT? ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬ 2016 Seminar Material ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
    LEGAL ETHICS IS NO LAUGHING MATTER… OR IS IT? ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬ 2016 Seminar Material ▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬ S1723.16 New Jersey Institute for Continuing Legal Education A Division of the State Bar Association NJICLE.com c LEGAL ETHICS IS NO LAUGHING MATTER… OR IS IT? Featuring Sean Carter, Esq. Lawpsided Seminars (Mesa, AZ) S1723.16 © 2016 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to NJICLE, a Division of the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. Table of Contents Page The 2016 Ethy Awards The Best of the Worst Ethics Offenders Sean Carter 1 Sean Carter bio 2 Ethy Awards Introduction 3 The Eager Beaver Award 5 The Outlawyer 8 Most Creative Billing 9 The Houdini Award 12 Best Supporting Actor (in a Criminal Activity) 14 The AT&T Award 17 The Joan Rivers Award 18 Least Competent in a Legal Representation 20 Best Use of Deception in Legal Marketing 21 Worst Love Scene 24 The Hitchcock Award 26 Most Creative Tale 27 Best Original Excuse 30 Most Over-Animated Courtroom Outburst 31 The Pit Bull Award 33 Worst Legal Strategy 35 Miss (Mister) Uncongeniality 37 The Archie Bunker Award 39 Critic’s Choice Award 40 Worst Temper in a Non-Legal Setting 41 Most Impaired in a Legal Setting 42 Most Impaired in a Non-Legal Setting 43 Comeback of the Year 44 The Lifetime Achievement Award 45 1 THE 2016 ETHY AWARDS The Best of the Worst Ethics Offenders Sean Carter Humorist at Law Lawpsided Seminars 3620 N Paseo Del Sol Mesa, AZ 85207 Phone: (480) 262-2653 [email protected] www.lawhumorist.com 2 The Ethy Awards Sean Carter Humorist at Law Lawpsided Seminars Mesa, Arizona Sean Carter is the founder of Lawpsided Seminars, a company devoted to solid legal continuing education with a healthy dose of laughter.
    [Show full text]
  • “Legal Tech” Is Transforming Litigation and Law Practice, and Its Steady Advance Has Tapped a Rich Vein of Anxiety About the Future of the Legal Profession
    LEGAL TECH, CIVIL PROCEDURE, AND THE FUTURE OF AMERICAN ADVERSARIALISM DAVID FREEMAN ENGSTROM* JONAH B. GELBACH** “Legal tech” is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession. Much of the resulting debate has a profession-focused and even defensive quality in its narrow focus on what legal tech portends for the professional authority, and profitability, of lawyers. It is also profoundly futurist, full of references to “robolawyers” and “robojudges.” But lost in this rush to foretell the future of lawyers is what should be an equally or even more important concern: What effect will legal tech’s continued advance have on core features of our civil justice system and the procedural rules that structure it? This Article seeks to enrich—and, in places, reorient—budding debate about legal tech’s implications for litigation by zeroing in on the near- to medium-term, not out at a distant, robotic horizon. It does so via three case studies, each one exploring how a specific legal tech tool (e-discovery tools, outcome- prediction tools, tools that perform advanced legal analytics) might alter litigation, for good and ill, by shifting the distribution of costs and information within the system. Each case study then traces how a concrete set of civil procedure rules— from Twombly/Iqbal’s pleading standard and the work product doctrine to the rules and doctrines that govern forum-shopping—can, or should, adapt in response. When these assorted dynamics are lined up and viewed together, it is not a stretch to suggest that legal tech will remake the adversarial system, not by replacing lawyers and judges with robots, but rather by unsettling, and even resetting, several of the system’s procedural cornerstones.
    [Show full text]
  • Group Legal Services and the Constitution Peter L. Zimrotht
    Group Legal Services and the Constitution Peter L. Zimrotht I. Group Legal Services and Legal Ethics The Chicago Motor Club, a non-profit organization of 60,000 auto- mobile owners, provided various services for its members. It posted traffic signs, financed a schoolboy patrol, gave touring and motor- ing information, promoted legislation, and maintained emergency road services. It also provided legal services. If a member was arrested for a traffic violation, became involved in litigation concerning a traffic accident, or needed advice about the use or ownership of his car, he could consult a lawyer hired and paid by the Club out of Club dues. By pooling their financial resources, members provided lawyers for themselves in situations in which an individual member could not, either because he could not afford a lawyer or because the claim was too small. During one year (1931), the legal service handled 8,640 cases involving property damage caused by cars. The average amount per claim was $12.39.1 The Chicago Bar Association claimed that the Club's service was unethical and sued to enjoin it. An Illinois commissioner found that the Club "rendered valuable services to its members and to the com- munities in which it operates," 2 and the Illinois Supreme Court char- acterized the Club's general activity as "beneficial." 3 But the Club was outlawed because it engaged in the "corporate practice" of law. "When the Chicago Motor Club offered legal services to its members ...it was engaging in the business of hiring lawyers to practice law for its members.
    [Show full text]
  • The Google Challenge to Common Law Myth James Maxeiner University of Baltimore School of Law, [email protected]
    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Spring 2015 A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth James Maxeiner University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Common Law Commons, Computer Law Commons, Internet Law Commons, and the Legal History Commons Recommended Citation A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth, 4 Brit. J. Am. Legal Stud. 137 (2015) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. A GOVERNMENT OF LAWS NOT OF PRECEDENTS 1776-1876: THE GOOGLE CHALLENGE TO COMMON LAW MYTH* James R. Maxeiner"" ABSTRACT The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists. Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law.
    [Show full text]