Op-Ed: Lawyers Don’t Police Firms
From USA Today Aug. 14, 2003 -
USA Today misconstrues the role lawyers play, and advocates a policy that could harm the public by shutting down communication between lawyers and corporate managers just when the lawyers’ advice could be most critical to the public good.
Corporate clients who know a lawyer has no room to exercise judgment, but is subject to a mandatory whistle-blowing rule, would fear asking whether planned activities comply with the law, lest the lawyer turn them in.
Either decisions will be made without consulting the lawyer, or the lawyer will be privy only to those facts that managers are comfortable sharing with an advisor who may turn into an adversary. Lawyers hired to help management operate profitably and in compliance with the law will advise management based on incomplete or inaccurate facts. That could cost the corporation financial opportunities, or lead corporate managers into inappropriate acts, harming shareholders, employees and the public.
Lawyers are not police. They are first and foremost counselors to their clients, hired in the expectation of undivided loyalty. With corporate clients, it is the corporation’s well-being that must influence the lawyer’s advice, not the interests of management or a board of directors.
That makes lawyers different from auditors, who report to the public that corporate financial statements fairly depict the company’s financial condition and are expected to deal with their clients at arm’s length.
The ABA policy clarifies and reiterates that when a lawyer sees a corporate agent break the law, the lawyer must go progressively higher in management, to the board of directors if necessary, seeking an appropriate response. Beyond that, there is a careful balance that must be struck, so that the client sees the lawyer exercising independent professional judgment in the public interest while working with the corporation to assure compliance with the law.
The ultimate persuader in the lawyer’s arsenal is the threat that the lawyer can and will report a violation. That threat will both preserve opportunity for lawyers to learn of problems, and enable them to convince corporate decision-makers to correct them.