Law Commons^™

Attorney-Client Confidentiality: A Critical Analysis, William H. Simon

Faculty Scholarship

Attorney-client confidentiality doctrine is distinguished by its expansiveness and its rigid or categorical form. This brief essay argues that the rationales for these features are unpersuasive. It compares the “strong confidentiality” of current doctrine to a hypothetical narrower and more flexible “moderate confidentiality” and concludes that moderate confidentiality is more plausible. It is unlikely that current doctrine yields benefits that justify its costs.

Duties To Organizational Clients, William H. Simon

Faculty Scholarship

Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.

Role Differentiation And Lawyer's Ethics: A Critique Of Some Academic Perspectives, William H. Simon

Faculty Scholarship

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older …

Litigation & Professional Responsibility: Is Overlawyering Overtaking Democracy?, David M. Schizer

Faculty Scholarship

Welcome everyone. We're going to get started. I'm David Schizer, the Dean of Columbia Law School. I'm here to moderate the panel, and our panel's title is, of course, "Is Overlawyering Overtaking Democracy?"

Now, as the moderator I get to ask questions, and I'm going to start with a question of the audience. My question is, aside from me, how many people here have seen Jerry Seinfeld's new animated movie, Bee Movie? I've a six-year-old daughter, which explains why I did – okay, a couple of people. For the rest of the audience's benefit, I should tell you the …

Virtuous Lying: A Critique Of Quasi-Categorical Moralism, William H. Simon

Faculty Scholarship

Popular and professional moralists have a tendency to over-condemn lying. This Article is a critique of that tendency and the more general outlook it exemplifies, which I call Quasi-Categorical Moralism. I begin with an illustration from my own experience of morally appropriate lying that is condemned by the legal profession's ethics norms. I proceed to a critical examination of the arguments against lying in what is perhaps the best known contemporary work on professional ethics – Sissela Bok's Lying. I then explore the more sympathetic treatment of lying in a broad range of literary and philosophical works typically ignored …