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Do Law Profs Market Bad Legal Advice?

The The National Law Journal reports this week on Columbia Law School Professor William Simon's article criticizing three prominent legal-ethics professors for giving bad legal advice with potentially large public consequences. While the NLJ report has rekindled discussion of the article, legal bloggers had already been debating its merits for several weeks. In the article, The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example (also here on SSRN), Simon postulates that clients sometimes want bad legal advice and lawyers sometimes oblige. Consider the lawyers who advised Enron that various asset transfers represented "true sales." Why would clients want bad advice? Because it provides a degree of immunity, either from public authority or public opinion.

The scenario becomes more complicated, Simon says, when the advice giver is an academic, purporting to speak disinterestedly -- as an expert witness, for example -- in order to influence public conduct or attitudes. To illustrate his point, Simon hones in on a case in which three prominent academics -- University of Pennsylvania Law School professor Geoffrey Hazard, Fordham University School of Law professor Bruce Green and Hofstra University School of Law professor Roy Simon -- gave what he labels "quasi-third-party advice"   with the real but unstated purpose of giving an imprimatur of approval to questionable lawyer practices in settling a major employment discrimination lawsuit against Nextel.

Brian Leiter first blogged about Simon's article on Nov. 9, calling it The Blockbuster Legal Ethics Article of the Year. That brought two critiques of Simon's article at Legal Ethics Forum. The first, posted Nov. 12 by Suffolk Law's Andrew M. Perlman, raised concern about Simon's own lack of transparency in criticizing the lack of transparency in others. "It turns out that Professor Simon was an informal consultant for the plaintiffs' counsel in some of the underlying cases," Perlman writes, "a fact that Professor Simon only acknowledges in footnote 60." The next day, in a lengthy critique, John Steele, a lecturer in legal ethics at UC Berkeley and Santa Clara University, says that Simon's article "disappoints" and "his thesis needs a complete rethinking if not an outright rejection." On Nov. 15, Legal Ethics Forum gave Simon his say, publishing his reply to Perlman and Steele. The extent to which his own role in the case influenced his article is exaggerated, he says, adding, "I'm concerned that the tendency of their arguments is to make it too difficult to criticize professional conduct of public significance when a powerful party wants secrecy." All of this makes for audible and fascinating blawgosphere buzz.

The NLJ's spotlight on Simon's article this week is sure to bring about a new round of discussions among legal bloggers and legal academics. NLJ reporter Leigh Jones' attempts to elicit comments from the three professors targeted by Simon succeeded with only one. Roy Simon told Jones: "It's easy to take a personal attack and lash out at the person who made it. The last thing I want to do is get into a fight."

Posted by Robert J. Ambrogi on November 27, 2007 at 01:05 PM | Permalink | Comments (2)

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