Corporate Law and Ethics

As corporate lawyers are often the facilitators between a corporation and the government or the corporation and its shareholders, they may be privy to facts that point to bad or unethical corporate governance. Lawyers, however, have long argued that they cannot be morally responsible for the aims or goals of their clients---they are simply facilitators in those goals, not the person responsible for the goal itself. Recent corporate scandals, however, have brought into question the appropriateness of such a concept for corporate lawyers.

The Origins of Non-Accountability

It’s easy to see why most lawyers would claim that they are not accountable for the goals of their clients. After all, the U.S. justice system is built on the principle “innocent until proven guilty.” Even the obviously guilty amongst us get a shot at a trial, as well as a lawyer whose job is to construct the best case they can as to that person’s innocence. In such a case, it’s obvious that lawyers cannot be expected to follow their own moral compass. Defending the guilty is a critical part of a trial, and someone has to perform that duty.

Modern Criticisms

The principle of non-accountability has come under criticism as of late, in respect to corporate law. One criticism is that the adversarial role of law that comes into play for many lawyers, including trial lawyers, does not really apply to corporate lawyers. In a trial, two lawyers zealously argue the case for their clients; a neutral party, namely a jury and judge, decide which of the cases is the truth. In corporate law, the structure is very different. There is no neutral party to decide who is being truthful, and the adversarial model does not readily apply.

Another argument for the non-accountability principle for lawyers says that this principle creates a check on government power—lawyers must vigorously protect the alleged guilty, because you never know when that person might actually be innocent. It is in the nature of governments and victims to punish readily and to an extent that a neutral party would not. Thus, a lawyer’s non-accountability provides the potential-innocent with a neutral party to protect them from the arbitrary hand of government. In a corporate setting, however, there is little legal oversight from the government, when compared to other types of law. While in some instances, the government may become involved in a corporate issue, usually, in the day-to-day running of the company, there is no looming government presence that needs to be “checked” by the zealous defense of the corporation.

These criticisms lead to the idea that a corporate lawyer should consider the social repercussions of their client’s goals, which they are advocating, and that they have an ethical duty to discuss with the client any ends which they feel are ethically dubious. As corporate lawyers have a wide range of employment options, they are not bound to represent a client whose goals they disagree with, and the non-accountability principle of the adversarial system does not readily apply.

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