Structured-finance transactions, Enron, Legal ethics, Torture memos, Holmesian bad man
Ethics and Professional Responsibility | Law and Society | Legal Profession | Litigation
When I tell people that I am a law professor specializing in legal ethics, they usually have one of two reactions: “Legal ethics—that’s an oxymoron!” or “I bet you always have a lot to do.” The second reaction is the more interesting of the two, because it rightly implies that legal ethics is a fascinating field, in part because lawyers are always thinking of new ways to get into trouble. Many run-of-the-mill lawyer disciplinary cases involve simple wrongdoing, such as stealing from client funds, which does not present conceptually interesting issues. Contemporary high-profile legal ethics scandals, by contrast, are made considerably more complicated by the attempt by lawyers, at least on a superficial level, to comply with the law. The Enron collapse and the torture-memo controversy present one of the central challenges for legal ethics—differentiating the act of aiding and abetting wrongdoing from transactional counseling and planning that avoids legal liability in a legitimate way. In the parlance of tax lawyers, the issue is how to locate the line between avoiding legal penalties (acceptable) and evading the law (unacceptable).
Wendel, W. Bradley, "What's Wrong with Being Creative and Aggressive?" (2006). Cornell Law Faculty Publications. Paper 478.
Published in: Cornell Law Forum, vol. 32, no. 3 (Spring 2006).