The ethics teacher's bittersweet revenge: Virtue and risk management

Georgetown Law Journal

Volumn 94, Issue 6, 2006, Pages 1985-1992

  Simon, William H ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33749848471     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (26)

1. See generally Anthony V. Alfieri, The Fall of Legal Ethics and the Rise of Risk Management, 94 GEO. L.J. 1909 (2006).
2. See, e.g., KLINE D. STRONG & ARBEN O. CLARKE, LAW OFFICE MANAGEMENT (1974).
3. Milton Regan's case history of John Gellene's criminal prosecution is an outstanding example. See generally MILTON C. REGAN JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER (2004).
4. For example, David Luban's classic defense of "moral activism" speaks of ethical decisionmaking in consistently individual terms. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY xxii, 160-61, 170-74, 210, 237-38 (1988).
5. See ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 219-25 (1993).
6. See id. at 15.
7. Suzanne Rose, Risk Management: Is the Culture of Your Firm Inviting Malpractice or Ethics Violations?, 41 TENN. B.J. 22, 22-23 (2005);
8. see also Anthony Davis, The Long-Term Implications of the Kaye Scholer Case for Law Firm Risk Management - Risk Management Comes of Age, 35 S. TEX. L. REV. 677, 680-81 (1994) (discussing large firm lawyers' independence and the liability issues arising from this arrangement).
9. See Rose, supra note 7, at 23-24 (noting how this type of compensation system endangers a firm's overall work product and exposes it to liability by rewarding personal performance over business development).
10. REGAN, supra note 3, at 193.
11. Id. at 199, 345.
12. See id. at 214-15, 260-61, 297.
13. Id. at 304-05.
14. Regan speculates that, had the relevant decisions been made collectively within the firm's bankruptcy practice group, they might not have come out differently because the other lawyers in the group shared Gellene's incentives and biases. Id. at 348. This could be true, but it is not obviously so. Sometimes forcing articulation and deliberation can make a difference, even among like-minded peers. But even conceding the point, it goes to the optimal shape of risk management, not its basic desirability. Monitoring procedures should ensure that lawyers are reviewed by people from outside their practice field.
15. See id. at 32-36. For a single-minded development of this theme, see Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871, 888-89, 903, 912-16 (1999).
16. See, e.g., 2005 Profits Per Partner, AM. LAW., May 2006, at 165.
17. REGAN, supra note 3, at 358.
18. Collaboration can take oppressive forms as well as empowering ones. The collaborative situation most likely to be considered in traditional ethics courses is the one in which a junior lawyer is asked by a superior to do something she believes to be wrong. There is no guarantee that the move from individualism to collaboration will be progressive, but other features of the risk management approach are responsive to the danger. For example, peer review processes, confidential internal grievance procedures, and demand for transparency on the part of all decisionmakers impose accountability on superiors as well as subordinates.
19. MODEL RULES OF PROF'L CONDUCT R. 1.13 (1980) (on the "Organization as Client").
20. See REGAN, supra note 3, at 323 (discussing Gellene's failure to reflect on or discuss critical decision); see also William H. Simon, The Kaye Scholer Affair: The Lawyer's Duty of Candor and the Bar's Temptations of Evasion and Apology, 23 LAW & SOC. INQUIRY 243, 259-67 (1998) (documenting the Bar's evasion of key issues raised by the banking regulators' charges against Kaye Scholer in the Lincoln Savings & Loan case);
21. William H. Simon, Wrongs of Ignorance and Accountability: Lawyer Responsibility for Collective Misconduct, 22 YALE J. ON REG. 1, 17-20, 29-34 (2005) (arguing that the Bar's norms on corporate representation have been deliberately ambiguous).
22. See ROBERT JACKALL, MORAL MAZES: THE WORLD OF CORPORATE MANAGERS 101-61 (1998) (arguing that fear of commitment and a culture of toughness inhibit explicit consideration of ethical issues);
23. Donald C. Langevoort, The Epistemology of Corporate Securities Lawyering: Biases, Organization, and Behavior, 63 BROOK. L. REV. 629, 647-55 (1997) (arguing that stress-driven psychological processes lead lawyers to ignore or misperceive ethical issues).
24. THE ISO 14000 HANDBOOK 196 (Joseph Cascio ed., 1996).
25. For a discussion of this and related themes, see generally William H. Simon, Toyota Jurisprudence: Legal Theory and Rolling Rule Regimes, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 37-64 (Grainne de Burca & Joanne Scott eds., 2006).
26. See generally Alfieri, supra note 1.