CORPORATE CRIME REPORTER
Roiphe Lays out Case Against Lawyers’ Willful Ignorance
25 Corporate Crime Reporter 32, August 22, 2011
In general, our society does not allow us to get away with wrongdoing by engaging in willful ignorance – looking the other way.
But lawyers?
They get a special deal.
The ABA’s Model Rules of Professional Conduct define “knowledge” as “actual knowledge.”
In so doing, the rules allow lawyers to avoid responsibilities to the community and the public by remaining ignorant of the relevant facts.
Rebecca Roiphe would change all of that.
Roiphe would change the ethical rule to say – you are deemed to know something if you deliberately ignore reality.
Roiphe is an Associate Professor of Law at New York Law School.
She laid out her proposal in a paper published last year in the Georgetown Journal of Legal Ethics titled – “The Ethics of Willful Ignorance.”
“The Model Rule 1.0 has definitions,” Roiphe told Corporate Crime Reporter in an interview last week. “And among the definitions is the definition of knowledge. As it stands, knowledge is defined as actual knowledge.”
“I would change that to say – you are deemed to know something if you deliberately ignore reality.”
Roiphe is running up against conventional wisdom in the legal profession.
Take Georgetown Law Professor David Luban for example.
“He says that while it may be appropriate in the context of the criminal law, it is inappropriate to apply the willful ignorance notion to ethics,” Roiphe said.
“When we think about what a lawyer is ethically obligated to do, we shouldn’t hold the lawyer responsible to look into facts that seem obviously suspicious.”
“And this comes up all the time. Particularly in the corporate context. There will be a lawyer who sees a bunch of facts and be concerned.
And the lawyer can go on with their job and give the opinion they were supposed to give or do the investigation they were supposed to do, without looking into it.”
“Or the lawyer can pursue it. They can say – wait, something doesn’t look right.”
Luban says it would turn the lawyer against the client. If somebody has a lawyer who they know at a certain point will be questioning them and in some way investigating them – it turns the lawyer into a sleuth against the client. And if that happens, then the client won’t trust the lawyer. If the client doesn’t trust the lawyer, then the whole relationship falls apart and the lawyer can’t adequately represent the client.”
“That’s the center of his argument. I address this argument in a number of ways.”
“First of all, as a general matter, I don’t think that is true.”
“The empirical basis of that argument just isn’t true. There are all sorts of obligations that lawyers have to the court to not put on false testimony, to report certain kinds of conduct. All of that is in some ways contrary to the principal/agent relationship.”
“The lawyer is supposedly working for the client, but the lawyer has certain obligations to the law, to the judicial system, to the court.”
“And that’s been the way that our system has been set up for a very long time. It doesn’t seem to me that this one extra obligation would destroy the attorney-client relationship.”
“Also, there is an inherent contradiction in what Luban is saying. What we generally think of as a good lawyer is somebody who finds out everything. In order to represent your client well, you have to know everything about the case.”
“That essentially is the principle behind the attorney/client privilege. The reason we have the attorney/client privilege is because we want clients to talk to lawyers. We want lawyers to find out facts, because otherwise they can’t represent their client well.”
“That is one of the oldest assumptions we have about the way the profession works. And this is a strange notion that lawyers should not have any obligation to investigate suspicious facts.”
“Obviously, the lawyer is not going to have full information if the lawyer turns a blind eye to certain red flags.”
“Finally, in the context of corporate crime in particular, all of the market forces and all of the emotional forces on a lawyer are to serve not the client, but the representative of the client – the manager, whoever hires the lawyer.”
“Having an obligation to look into some suspicious facts would in fact strengthen the relationship between the lawyer and the client. The client is the corporation, not the manager. And many lawyers lose sight of this. The ethical rules can be used to strengthen the relationship between the lawyer and the corporate client as opposed to the interests of the managers – which sometimes represent the corporation and sometimes not.”
“It’s very difficult for a lawyer to figure out at what point do the managers have such a conflict that they can no longer represent the interests of the company.”
“My proposal would help strengthen a lawyer’s ability to figure out at what point they need to go above this manager’s head to some other part of the corporation, to some other representative in order to act in the interest of the company.”
Roiphe agrees that most corporate crime defense lawyers would oppose her proposal.
“I spoke with a number of defense lawyers,” Roiphe said. “And that is the sense I got. And the reason is – it is easy enough for me to say as an academic that a lawyer should investigate, should look into something, should pursue something when it looks suspicious. And it’s harder to do it in reality.”
“The managers you are working with give you a set of facts. And you take those facts. And you may ask a lot of questions. But if they don’t want you to go in a particular direction, you don’t go in that direction. Most of the time that’s fine. And most of the time, the management is not betraying the company on some level.”
“However, there are certain circumstances where that is not the case.”
“The response that I got from the many defense lawyers – if this were the ethical rule, then lawyers would over-investigate. They would be so concerned about their own professional reputation and their licenses, they would end up doing more than they have to do. They would overcompensate. You would have this parade of horribles that Professor Luban set up.”
“You would have these lawyers who were hired by a client but end up investigating the client, end up pursuing that client as an adversary, in a way.”
“But I’m skeptical that the whole world would fall apart if the rule were different than it is now.”
[For the complete Interview with Rebecca Roiphe see 25 Corporate Crime Reporter 32(12), August 8, 2011, print edition only.]
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