Document Type

Article

Publication Date

10-25-2019

Abstract

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naïve? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum—not a binary yes/no—in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can tell, under-explored implications that help us understand ethical apathy as a distinctive state of mind. The essay’s second part is more hopeful: that such ethical apathy among private practitioners might be offset by greater embrace of the possibility by in-house lawyers. There has emerged in recent years a different lens for the empirical examination of corporate general counsel, using the tools of financial economics to seek correlations (and maybe causation) between identifiable lawyer characteristics and outcomes for the company in terms of (for example) its legal exposure. There is some hopeful news in this research, albeit heavily contingent on the company’s governance structure. The essay ends by suggesting that, while the effort in normative legal ethics to enlist corporate lawyers in more than a legalistic conception of gatekeeping has failed, corporate governance and corporate ethics—surprisingly, perhaps—have some potential to enable gatekeeping general counsels in a way that filters down to the demand for more ethically-sensitive outside counsel as well.

Publication Citation

Fordham Law Review, Forthcoming.

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