Occupy Wall Street’s Message for Lawyers

Posted on November 21st, 2011 by Vina Tran

While this may not, on its face, be about Gender & Sexuality Law, it is most surely about a set of values that make our work much more difficult – both in the law school and in the legal profession more generally. Op-ed originally posted on The National Law Journal, November 21, 2011 issue:

Caitlin Curran holds the sign that got her fired at Occupy Wall Street. Image via Twitter.

A scruffy-looking Occupy Wall Street protester takes out a big black magic marker and writes on a tattered piece of cardboard: “Ban ‘Naked’ Credit Default Swaps.” Others hold signs calling for an end to “mortgage-backed securities” and “self-settled asset protection trusts.” These demonstrations have a different, and more sophisticated, message than any we’ve seen before. “Hey, Hey, Ho, Ho — Interest Rate Swap Contracts Have Got To Go!”

By and large, it’s investment bankers who have been in the protesters’ crosshairs, but the Occupy Wall Street (OWS) demonstrations also offer an opportunity to consider what role lawyers may have played in the creation of these sophisticated financial instruments, enabling the overreaching decried on the OWS protesters’ placards. Behind every credit default swap or short of subprime mortgage-backed assets sit legal counsel sanctioning these practices. The greed that has motivated bankers to sacrifice the public’s interests for short-term personal gain has been made possible, in no small part, by the work of lawyers.

The OWS protests should motivate us to consider anew what it means to be a professional lawyer, particularly in a climate where our expertise is being used to provide cover for otherwise unethical financial practices.

As legal educators, we are reminded to teach our students that being a “good lawyer” must include the cultivation of responsible moral judgment. Implicit in the OWS protests is a condemnation of an approach to lawyering that regards all legal rules simply as the price of misconduct discounted by the probability of enforcement: Skirting too close to, if not over, the limits of law is seen as the cost of doing business, or as my colleagues trained in economics call it, “efficient breach.”

This kind of zeal at the margins was wholeheartedly condemned by the likes of former U.S. Supreme Court Justice Louis Brandeis, who taught us that responsible lawyers play a regulatory role with regard to their clients: “Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people.” These words of Brandeis are as true today as they were when he wrote them in 1914.

In recent years we have seen the increased blurring of the boundary between law and business, between the lawyer and the businessperson, and between legal and business education. Too often, being a “good lawyer” has meant taking on the role of consiglieri, providing effective legal cover for otherwise borderline, or worse, practices. Effective and ethical representation of business interests does not relieve lawyers of responsibility for the harmful effects on others created by our clients’ actions, taken pursuant to our counsel. Today’s protests should motivate all of us, lawyers and law professors alike, to consider anew the words of former Securities and Exchange Commission Chairman Harold Williams, written in 1980: “In my view, corporate lawyers must adjust their concept of their professional obligations to match society’s evolving conception of the responsibilities of the institutions which the corporate bar serves, the rights of those impacted by such institutions, and the needs of the larger society.”

Ironically, the financing of legal education may have contributed to the collaboration of lawyers in less than fully ethical banking practices. The exorbitantly high cost of law school gives our students an early and trenchant lesson in the value of highly leveraged investments. Servicing law school debt after graduation drives many of our students to highly compensated legal work for the financial services industry. For many young lawyers, the debt burden creates almost indenture-like vulnerability, and they are in no position to raise a critical voice when asked to draft legal opinions legitimizing otherwise questionable investment practices.

Just as lawyers’ roles in the Watergate scandal forced the profession to review and revise its ethics canon, so too lawyers’ collaboration in today’s financial scandals ought to provoke consideration of new and higher ethical standards of professionalism. In important respects, these ethics would signal a return to Brandeis’ notion of lawyers as public citizens, and would discourage lawyers from being no more than handmaidens to the purely self-seeking opportunism and strategic behavior of their clients. Instead, the integrity of our profession should oblige us to convince our clients that deceptive, fraudulent or illegal practices are neither in their own self-interest nor in that of the larger public. The widely held public outrage at corporate overreaching given voice in the OWS protests reminds us of the degree to which the legal profession has fallen short of its traditional role as “republican” citizen, obliged to act as guardian of public interests even when — indeed especially when — representing private interests.

Katherine Franke is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and the director of the school’s Center for Gender and Sexuality Law.


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