DOCSLIB.ORG

Conflicts of Interest, Chinese Walls and the Changing Business of the Law R

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Conflicts of Interest, Chinese Walls and the Changing Business of the Law R Business Law International Conflicts of Interest, Chinese Walls and the Changing Business of the Law R. S. G. Chester, J. W. Rowley and Brett Harrison Sweet & Maxwell ....... WFSf •GROUP Conflicts of Interest, ·Chinese Walls and the Changing Business of the Law R. 5. G. Chester, J. W Rowley, o. c. and Brett Harrison 7 Mcmillan Binch, Toronto The Legal Profession in Flux As the waves of consolidation and globalisation wash upon the legal system, old . traditions crumble. The business structure of the sophisticated law firm has gone through major changes in the last 30 years. Starting in the United States, but now spreading to many countries, law firms have grown in size and sophistication. Law firms have also spread across jurisdictions through alliances and mergers. A law firm of even 100 lawyers would have been considered large in the 1960s. Now a handful of firms exceed 1,000 lawyers. In firms like these, growth changes not merely the economic presence of the entity-it changes the professional structure too. Specialisation and fragmentation occurs, as firms recognise that effective strategic leadership needs sharper focus-thus the rise of practice groups. The nature of partnership changes too. Firms that grew on strong professional relationships built upon personal friendships, shared visions and common experi~nces have had to institutionalise and professionalise management and adapt to changes in the business milieu in which their clients thrive. Changes in the business law firm have spurred change in other, less obvious areas. The pressures facing the legal profession worldwide challenge old rules and long-standing patterns of behaviour. In a world in which law firms grow in size, power and revenue and as other professions converge into areas previously reserved for the legal profession, it is not surprising that ethical rules face reassessment. This article examines how economic and professional change has affected one of the fundamental ethical rules on which the legal profession is based-the avoidance of conflict of interest. It is regarded as axiomatic that a lawyer cannot let his, or her, professional performance be compromised by competing loyalties-either a conflict between client and personal interests, or between two clients. A body of ethical and legal rules has grown up to define and channel acceptable behaviour when confronted by conflicts. We are grateful to Ward Bower (Altman Weil, Newton Square), William J.L. Calkoen and R.A.L.H.M. Bouwman (Nauta Dutilh, Rotterdam), Anthony E. Davis (Fox Horan Camerini, New York), Thomas Federspiel (Gorrissen Federspiel Kierkegaard, Copenhagen), Michael Friedmann (Joint LL.B./MBA Programme, University of Toronto), Ross Harper (Harper Macleod Glasgow), Hans-JOrgen Hellwig (Hengeler Mueller Weitzel Wirtz, Frankfurt), Stuart Morgan and Paul Doris (Freshfields, london}, Ram6n Mullerat, (Bufete Mullerat, Barcelona}, Ainhoa Pinilla and Bernado M. Cremades (Cremades y Asociadas, Madrid), Donald Robertson (Freehill, Hollingdale Page, Sydney), Michael Simmons (Finers, london), Christine Sohar (University of Denver College of Law), Rudolf Tschani (Lenz & Staehelin, Zurich), Sven Unger (Mannheimer Swartling Advokatbyrfl, Stockholm), lvo Van Bael (Van Bael & Bellis, Brussels), Yasuhide Watanabe (Nagashima & Ohno, Tokyo) and David A.R. Williams, Q.C. (Auckland), for their invaluable assistance in providing research material for this article. Responsibility for any errors rests with the authors. (2000] B.L.I.Issue 2: © International Bar Association 36 Conflicts of Interest The issue is an important one for both law firms and clients, and is recognised as such in all jurisdictions. This article reviews the transformation of conflicts rules over recent years, as traditional approaches have been tested by th~ rise of sophisticated bus~ ness law firms and by other changes in the market for legal serv1ces. Old ~ules wer~ pre.mlse~ on the notion that lawyers would likely practice by themselves or 1n small f1rms 1n wh1ch lawyers were intimately involved in the practice, collaborating closely arid sharing common knowledge and experience. While that model still dominates the profession in pure numbers-the majority of lawyers work in firms of under ten lawyers-the market for .legal services has resulted in economically powerful and professionally sophisticated large firms. Ethical rules that presented few problems for solo practitioners or small firms now fit uncomfortably into the larger legal landscape .. Our primary focus Is on how the ethical rules have been changed to address the larger changes in the business and professional operations of large law firms. This article adopts a comparative approach, since it has been fascinating to see how different jurisdictions have followed each other in fashioning new, and more nuanced, rules. Its primary focus will be on common-law jurisdictions, but it will contrast these developments with similar rules in civil-law jurisdictions. It attempts to draw conclusions from these parallel developments about how the profession is developing and what the future holds. Since recent case law has explicitly probed the question of whether the same rules· apply to accountants working on legal file engagements, conflicts rules have implications for the phenomenon of multi-disciplinary partnerships. As the rise of global law firms gathers speed, so large accounting firms have diversified away from the staples of audit and accounting advice, transforming themselves into professional service firms with partners drawn from many disciplines. The challenge to law firms started in Europe, but is now becoming global. Leaders of the legal profession argue that the economic forces are not inexorable and that ethical and professional imperatives must be addressed. Old issues of conflict of interest and duty have asserted themselves into that debate. In the process, we are beginning to see the emergence of a global law of conflicts of interest. All these developments were brought sharply into focus in late 1998 when England's highest court-the House of Lords-decided its most important conflicts case ever. Although the case focussed on forensic accountants, its largest implications are for the legal profession. In its decision, the Court transformed English law, set higher standards for conduct, and challenged both law firms and professional regulators to adapt. The Lords decision was explicitly comparative in its analysis, and .also sensitive to the professional context of sophisticated markets for legal services. This article finishes with a critical examination of the opportunities for the effective use of screening devices or ethical walls to neutralise such conflicts. It concludes that such screening devices, while plausible and attractive, are only intermittently effective. In numerous jurisdictions around the world, such devices have crumbled under challenge and scrutiny by the courts. Traditional Approaches to Conflicts In looking at conflicts~ a number of professional interests and values are at stake. Of primary importance is the need to protect clients, and to ensure the .undivided loyalty of their legal advisors. Even if the lawyer-client relationship has come to an end, the 12000] B.L.I. Issue 2: © International Bar Association R.S.G. Chester, J.W. Rowley Q.c. and Brett Harrison 37 confidentiality of any information that the lawyer possesses must be scrupulously respected. The high standards of the legal profession depend on the integrity of the justice system. Next in priority comes the desirability of enabling consumer choice­ litigants should not be deprived of their counsel of choice without good reason. A third interest relates to a respect for market forces within the market for legal services. As we shall see later, there is a resistance to inter-jurisdictional and interdisciplinary consolidation within the market for legal services, which is being felt in the conflicts jurisprudence. These market forces have manifested themselves both at firm and individual levels. Mergers of law firms started in the 1980s within national markets. The phenomenon of the 1990s has been mergers of firms in different countries and continents. The next decade will almost certainly see a series of cross-profession mergers, as major accounting firms broaden their professional services into legal domains and recruit lawyers to handle these matters. In the slightly longer run, we are likely to see the emergence of true multidisciplinary service firms, in which legal, accounting, financial and engineering professionals work as required on projects which span many disciplines. The stakes are high, not merely in terms of embarrassment and damage to client relations, but also in monetary terms. In the United States, the consequences of botched conflicts include lawsuits. 2 One Oklahoma firm was reportedly hit with a $120 million claim for attempting to switch sides in an oil industry dispute. In 1996, Louisiana's appellate court upheld a $5.5 million judgment against a lawyer who had tried to act for both sides in a corporate merger. Firms have also had to forfeit fees, with Milbank Tweed reportedly losing a $1.9 million fee award in 1997, 3 and Willkie Farr4 almost $3 million the following year. 5 ,, Competing Professional Valui=s The sources of conflict rules are found in both case law and in local rules of professional conduct. 6 While common law courts are attentive to professional rules, they have made it clear that the various rules of professional conduCt are not necessarily congruent with rules that the court will apply/ "The codes of professional conduct governing lawyers do not govern common law courts, which must follow the law governing fiduciaries and confidences, not rules of professional ethics. But that theoretical distinction weakens in practice, for the law and the ethics are similar-as are the problems. So professional ethics codes are suggestive, even persuasive, in court. "8 Since a conflict of interest is a Michael Chambers, Matthew Jones and Patrick Wilkins, Conflicts of Interest-The Growing Climate of Distrust 33 Commercial Lawyer (April 1999), at p.27. Matthew Goldstein, "Grand Jury Subpoenas issued in Inquiry on the Milbank Conflict", N.Y.
Load more

Recommended publications
  • Information Confidentiality and the Chinese Wall Model in Government Tender Fraud
    Information Confidentiality and the Chinese Wall Model in Government Tender Fraud Sobhana Rama Stephen V Flowerday Duane Boucher Department of Information Systems Department of Information Systems Department of Information Systems University of Fort Hare University of Fort Hare University of Fort Hare East London, South Africa East London, South Africa East London, South Africa [email protected] [email protected] [email protected] Abstract— Instances of fraudulent acts are often headline news in Paton states that in South Africa “it has been estimated the popular press in South Africa. Increasingly these press unofficially that R30-billion per year, 20% of the overall reports point to the government tender process as being the main government procurement budget of R150-billion, is being lost enabler used by the perpetrators committing the fraud. The or is disappearing into a black hole of corruption” [2]. The cause of the tender fraud problem is a confidentiality breach of root cause of these losses is a conflict of interest in the tender information. This is accomplished, in part, by compromising the process, which results in inflated costs associated with tenders tender information contained in the government information and tender fulfillment by unsuitable service providers [2]. system. This results in the biased award of a tender. Typically the Paton cites Hofmeyr, the head of the Special Investigating Unit information in the tender process should be used to make (SIU) that there has been an increase in state supply chain decisions about a tender’s specifications, solicitation, evaluation corruption [2], even though corruption has been highlighted as and adjudication.
    [Show full text]
  • UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT of NEW YORK ------X in Re: : : AMPAL-AMERICAN ISRAEL CORP., : Chapter 7 : Case No
    UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------X In re: : : AMPAL-AMERICAN ISRAEL CORP., : Chapter 7 : Case No. 12-13689 (SMB) Debtor. : -------------------------------------------------------X FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING TRUSTEE’S MOTION TO RETAIN TARTER KRINSKY & DROGIN LLP AS COUNSEL AND DENYING CROSS-MOTION TO DISQUALIFY THE TRUSTEE A P P E A R A N C E S: TARTER KRINSKY & DROGIN LLP Proposed Substitute Counsel to the Chapter 7 Trustee 1350 Broadway New York, NY 10018 Alex Spizz, Esq. Arthur Goldstein, Esq. Jill Makower, Esq. Of Counsel KASOWITZ, BENSON, TORRES & FRIEDMAN LLP Counsel for Yosef A. Maiman and Merhav (M.N.F.) Limited 1633 Broadway New York, NY David M. Friedman, Esq. Daniel A. Fliman, Esq. Nii-Amar Amamoo, Esq. Of Counsel COLE SCHOTZ, P.C. Attorneys for Irit Eluz 900 Third Avenue, 16th Floor New York, NY 10022 Michael D. Sirota, Esq. Steven L. Klepper, Esq. Of Counsel STUART M. BERNSTEIN United States Bankruptcy Judge: Alex Spizz, the chapter 7 trustee (the “Trustee”) of Ampal-American Israel Corporation (“Ampal”), has moved to retain the law firm of Tarter Krinsky & Drogin LLP (“Tarter”) as substitute general bankruptcy counsel under 11 U.S.C. § 327(a). The Trustee recently joined Tarter as a partner together with four other lawyers and one paralegal after his previous firm, Spizz Cohen & Serchuk, P.C. (“Spizz Cohen”), which dissolved and closed. Yosef A. Maiman, the chairman and former chief executive officer and president of Ampal together with entities under his ownership or control (collectively, the “Controlling Shareholders”) have objected to Tarter’s retention based on its prior representation of certain parties-in-interest in other matters in this bankruptcy case.
    [Show full text]
  • Avoiding Conflicts with Clients by the Use of Engagement Letters and Waivers of Conflict
    AVOIDING CONFLICTS WITH CLIENTS BY THE USE OF ENGAGEMENT LETTERS AND WAIVERS OF CONFLICT K.C. McDaniel Rosenman & Colin LLP October 2001 ©K.C. McDaniel 2001 41125273.05 Table of Contents Basic Elements of Typical Engagement Letters......................................................................... 6 What Can an Engagement Letter Do?........................................................................................ 8 What Engagement Letters May Not Achieve........................................................................... 10 Errors in Engagement Letters ................................................................................................... 12 Conflicts of Interest and Ethical Walls ..................................................................................... 14 Elements of an Ethical Wall....................................................................................................... 15 Use of Ethical Walls for Former Representations ................................................................... 16 Ethical Walls in Conflict Between Current Clients................................................................. 18 CONCLUSION ........................................................................................................................... 21 2 41125273.05 History and Overview Why engagement letters? The growth of law firms, the increasingly national scope of client relationships and transactional practices, the greater frequency of disqualification challenges, and the higher financial
    [Show full text]
  • Reason V. Wilson Concrete Prod., Inc., 119 Ohio App.3D 94, 2002-Ohio-4236.]
    [Cite as Reason v. Wilson Concrete Prod., Inc., 119 Ohio App.3d 94, 2002-Ohio-4236.] REASON et al. v. WILSON CONCRETE PRODUCTS, INC. et al.* [Cite as State v. King, 119 Ohio Misc.2d 94, 2002-Ohio-4236.] Court of Common Pleas of Ohio, Montgomery County. Nos. 00-CV-3431, 00-CV4153, 00-CV-4641, 01-CV1265, 01-CV-3119, 01-CV-4568, 01-CV- 4606, 01-CV-4609 and 01-CV-4650.. Decided May 13, 2002. __________________ Gary J. Leppla, for Melissa A. Reason and Kurt R. Reason. James T. Ambrose, for Kenton, Katie, and Karl Reason. John G. Witherspoon, Jr., for defendants Reason Homes, Inc., Melissa A. Reason, Kurt R. Reason, and Auto-Owners Mutual Insurance Company. Robert J. Surdyk, James M. Peters, and Don Little, for defendant Wilson Concrete Products, Inc. R. Jeffrey Baker, for defendants Timothy J. Blashock and Blashock Plumbing, Inc. James D. Utrecht, for defendant Blashock Plumbing, Inc. F. Joseph Schiavone, for defendant Timothy J. Blashock. Gregory P. Dunsky, Montgomery County Assistant Prosecuting Attorney, for defendants * Reporter’s Note: For earlier case, see Reason v. Wilson Concrete Prod., Inc., 119 Ohio Misc.2d 91, 2002-Ohio- 4230, 774 N.E.2d 781. Montgomery County, Ohio Division of Building Regulations, Montgomery County Combined Health District, Edwin C. Lemasler, and Mark Allen. Rasheed A. Simmonds, for defendants Amanda J. Neal Foglyano, administrator of the estate of Darrel Neal, Barbara S. Neal, and Barbara A. Neal. M. Andrew Sway, for defendant National Mutual Insurance Company. John McCoy, John Theiler Bode and Robert W. Rettich III, for defendant George F.
    [Show full text]
  • Second Version
    LAWYERS' CONFLICTS OF INTEREST (with a proposal for the revision of art. 3.2 of the CCBE Code of Conduct, a commentary to the ABA Model Rules and some suggestions for global harmonization of rules) by Ramon Mullerat, OBE1 "No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one and despise the other" Matthew, 6:24 PURPOSE "The question of conflicts of interest may well be the most controversial current issue in the legal profession" Working Group for the revision of the CCBE Code of Conduct Final Report February 1998 This paper has four parts. The purpose of Part One2 is four-fold: the first chapter considers conflicts of interest in life in general; the second addresses conflicts of interest in the legal profession; the third discusses the revision of art. 3.2 of the CCBE Code; and the fourth proposes a new text for art. 3.2. Part Two is an overview of conflicts of interest in the United States. Part Three makes a diverting incursion into the IBA Guidelines on Conflicts of Interest in International Arbitration 2004. Part Four contains some reflexions for a global harmonization of the rules. 1 Ramon Mullerat O.B.E. is a lawyer in Barcelona (KPMG Abogados) and Madrid, Spain; Avocat à la Cour de Paris, France; Honorary Member of the Bar of England and Wales; Honorary Member of the Law Society of England and Wales; Professor at the Faculty of Law of the Barcelona University; Adjunct Professor of the John Marshall Law School, Chicago; Former member of the EMEA Board of the Emory University,
    [Show full text]
  • Copyright and Selling Copies Around the World – a Useful Service in Pre-Internet Days
    Edition: UK Sign in Mobile About us Today's paper Subscribe Science 6 Search News Sport Comment Culture Business Money Life & style Travel Environment Tech TV Video Dating Offers Jobs News Science Peer review and scientific publishing Comment Share Tweet this Academic publishers have become the enemies of science Email The US Research Works Act would allow publishers to line their pockets by locking publicly funded research behind paywalls Mike Taylor guardian.co.uk, Monday 16 January 2012 12.13 GMT Article history Jump to comments (…) Science Peer review and scientific publishing ∙ Online science writing Masterclass Controversies in science ∙ Open access scientific In this digestible online publishing video, former Guardian Science Editor Tim World news Radford reveals his US Congress ∙ United approach to science States writing. Find out more and watch now Business Reed Elsevier More comment On Science Most viewed Zeitgeist Latest More on this story Last 24 hours 1. Nazi buddha from The free dissemination of lifesaving medical research around the world would be space might be fake prevented under the Research Works Act. Photograph: LJSphotography/Alamy This is the moment academic publishers gave up all pretence of being on the side of scientists. Their rhetoric has traditionally been of partnering The parable of the with scientists, but the truth is that for some time now scientific publishers farmers and the 2. Who were the most dangerous scientists in have been anti-science and anti-publication. The Research Works Act, Teleporting Duplicator history? introduced in the US Congress on 16 December, amounts to a Dr Mike Taylor: Imagine a world where 3.
    [Show full text]
  • Insider Dealing and the Chinese Wall: a Legal, Economic
    INSIDER DEALING AND THE CHINESE WALL: A LEGAL, ECONOMIC, AND POLICY ANALYSIS by Harold McVea LL.B This thesis is submitted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY HERIOT-WATr UNWERS1TY, EDINBURGH, SCOTLAND (DEPARTMENT OF ACCOUNTANCY AND FINANCE) October 1989 This copy of the dissertation has been supplied on condition that anyone who consults it is understood to recognise that the copyright rests with its author and that no quotation from the dissertation and no information derived form it may be published without the prior consent of the author or the University as may be applicable. ( ) THESIS TITLE: INSIDER DEALING AND THE CHINESE WALL - A LEGAL, ECONOMIC, AND POLICY ANALYSIS TABLE OF CONTENTS Acknowledgements Table of Cases Table of statutes INTRODUCTION CHAPTER ONE: SETTING THE SCENE 1 Deregulation and Re-regulation: The International Enviroiiment I What is Financial Dere gulation? 2 Why is Deregulation Takin g Place? 3 The Re gulatory Paradox: The Trend Towards New Regulatory Measures 4 The Resultant Effects of Both Deregulation and Re-regulation 7 One As pect of Deregulation - Financial Con glomerates 7 One As pect of Re-re gulation - Conflicts of Interest and Duty and the Chinese Wall 10 Methodology 11 Law and Economics 11 The Tentative Application of Economics to Law 13 The Tentative Approach: Problems, Terminology and Definitions 14 The Tentative Approach: An Application 19 The Tentative Approach: A Conclusion 20 Comparative Legal Analysis 21 Summary 24 CHAPTER TWO CONFLICT ABUSE iN THE
    [Show full text]
  • Chinese Wall Or Emperor's New Clothes? Regulating Conflicts of Interest of Securities Firms in the U.S
    Michigan Journal of International Law Volume 9 Issue 1 1988 Chinese Wall or Emperor's New Clothes? Regulating Conflicts of Interest of Securities Firms in the U.S. and the U.K. Norman S. Poser Brooklyn Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Agency Commons, Comparative and Foreign Law Commons, and the Securities Law Commons Recommended Citation Norman S. Poser, Chinese Wall or Emperor's New Clothes? Regulating Conflicts of Interest of Securities Firms in the U.S. and the U.K., 9 MICH. J. INT'L L. 91 (1988). Available at: https://repository.law.umich.edu/mjil/vol9/iss1/4 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. Chinese Wall or Emperor's New Clothes? Regulating Conflicts of Interest of Securities Firms in the U.S. and the U.K. Norman S. Poser* Ko-Ko: Pooh-Bah, it seems that the festivities in connection with my approaching marriage must last a week. I want to consult you as to the amount I ought to spend upon them. Pooh-Bah: Certainly. In which of my capacities . ? Ko-Ko: Suppose we say as Private Secretary. Pooh-Bah: Speaking as your Private Secretary, I should say . don't stint yourself, do it well.
    [Show full text]
  • SECURITIES ACTIVITIES of COMMERCIAL BANKS: the CURRENT ECONOMIC and LEGAL ENVIRONMENT George G
    A Series of Occasional Papers in Draft Form Prepared by Members "o SECURITIES ACTIVITIES OF COMMERCIAL BANKS: THE CURRENT ECONOMIC AND LEGAL ENVIRONMENT George G. Kaufman and Larry R. Mote Digitized for FRASER http://fraser.stlouisfed.org/ Federal Reserve Bank of St. Louis Securities Activities of Commercial Banks: The Current Economic and Legal Environment George G. Kaufman and Larry R. Mote* One of the more striking developments in financial markets in recent years has been the increased involvement of commercial banks in a progressively wider variety o f securities activities. These now include securities broker­ age, investment advising, mutual fund management, issuance of mutual fund-like deposits, and underwriting and trading of an increasing number of non-federal government securities. Overseas, larger U.S. banking or­ ganizations are involved in full-service investment banking. In addition, Senator Proxmire, Chairman of the Senate Banking Committee, and other Congressmen have introduced legislation to repeal some of the prohibitions against further commercial bank activities in securities dealing and under­ writing. Those favoring such liberalization argue that the restrictions un­ duly limit the ability of commercial banks to compete, thereby increasing the costs o f these services to the public, and prevent banks from diversifying to reduce their risk exposure. Those opposed to liberalization believe that these activities would circumvent the congressional purpose embodied in the Banking A ct o f 1933, which introduced severe restrictions on commer­ cial banks’ securities activities, and that they pose a serious danger to the safety and competitiveness of the financial system. This paper examines the history o f commercial banks’ involvement in the securities markets and the role o f securities activities in the banking collapse o f the 1930s, reviews the rationale for and substance of the Banking Act of 1933, and surveys the evolution o f bank securities activities since 1933, with emphasis on the last decade.
    [Show full text]
  • Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls
    Loyola of Los Angeles Law Review Volume 33 Number 1 Article 5 11-1-1999 Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls Dorothy M. Gibbons-White Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Dorothy M. Gibbons-White, Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls, 33 Loy. L.A. L. Rev. 161 (1999). Available at: https://digitalcommons.lmu.edu/llr/vol33/iss1/5 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. MIGRATORY LAWYERS IN PRIVATE PRACTICE: SHOULD CALIFORNIA APPROVE THE USE OF ETHICAL WALLS? I. INTRODUCTION In the modem legal profession, where mobility is the norm, suc- cessive conflicts' rules can quickly spread imputed conflicts when- ever lawyers move among private firms? Imputed disqualification3 rules regularly present serious issues when attorneys move laterally from one firm to another.4 Without a flexible approach to conflicts of interest, the result is unnecessarily constricting for both clients and attorneys.5 While no one seriously suggests that two partners within a single firm could represent adversaries in litigation, 6 secondary disqualification 7 is not necessary, from both a practical and a policy perspective, in every situation where one lawyer in the firm has a successive conflict of interest concerning one of the firm's clients.8 1.
    [Show full text]
  • 2 the Upper World 3 Bank Fraud
    Notes 2 The Upper World 1 . According to the official discourse by the CCP, Mao Zedong is considered the core of the first-generation leadership group; Deng Xiaoping, the second- generation core leader; Jiang Zemin, the third; Hu Jintao, the fourth; and Xi Jinping, the fifth. Although Hua Guofeng, Hu Yaobang, and Zhao Ziyang also served as the head of the party, Deng Xiaoping is regarded as the real core leader of the second-generation leadership team. 2 . The Eight Great Eminent Officials, abbreviated as the Eight Elders, were a group of revolutionary leaders of the CCP who held substantial power during the 1980s and 1990s. 3 . The Politburo Standing Committee is a committee with five to nine mem- bers constituting the top leadership of the CCP and accountable to the CCP’s 25-member Central Politburo or Politburo. The Politburo is a policy-making body accountable to the larger Central Committee of the CCP, which assem- bles once a year. 4 . In 2012 the newly appointed Chinese president, Xi Jinping, reiterated, “We must never allow the Party to change its essence nor allow the Red of our mountains and lakes to fade” (Lu, 2014). His statement emphasized the prince- lings’ determination to maintain their power over the party and the state. 3 Bank Fraud 1 . In Chinese law, only those behaviors prohibited by the Criminal Law of the People’s Republic of China (last amended in 2006) and subject to the People’s Congress supplementation of, or interpretation of, China’s criminal law are considered to be crimes. Other legislation does not have the authority to clas- sify a specific action as a criminal offence.
    [Show full text]
  • George Steven Swan, the Law and Economics of Fiduciary Duty
    Swan 7-16-12 (Do Not Delete) 7/16/2012 10:52 AM OKLAHOMA CITY UNIVERSITY LAW REVIEW VOLUME 37 SPRING 2012 NUMBER 1 ARTICLE THE LAW AND ECONOMICS OF FIDUCIARY DUTY: WOMACK V. ORCHIDS PAPER PRODUCTS CO. 401(k) SAVINGS PLAN George Steven Swan, S.J.D.* I. INTRODUCTION.................................................................................... 19 II. THE PRE-2007 GREAT MODERATION ................................................ 21 A. What Was the Great Moderation? .......................................... 21 B. Did the Great Moderation Mislead? ...................................... 22 III. THE ECONOMICS IN LAW AND ECONOMICS .................................... 25 A. The Paradigm Idea ................................................................. 25 B. Macroeconomics ..................................................................... 29 1. Macroeconomists and Mathematization .......................... 29 2. Macroeconomists, Mathematization, and Modeling ........ 36 3. Macroeconomics, the Business Cycle, and the Evidence .......................................................................... 40 C. Microeconomics ..................................................................... 44 IV. SOCIAL CAPITAL AND FIDUCIARY DUTY ......................................... 49 A. Trust as Social Capital ........................................................... 49 * Certified Financial Planner™; Associate Professor, School of Business and Economics, North Carolina A&T State University; B.A., Ohio State University; J.D., University of Notre
    [Show full text]