Professional responsibility and the corporate lawyer

I. THE WORLD OF CORPORATE PRACTICE

The dynamism of the business corporation has persistently stretched the creativity of lawyers, prompting efforts both to devise novel corporate strategy and to fashion regulatory constraints upon it. Capitalism's process of "creative destruction"1 continually

creates the risk that legal rules will lag behind economic reality. Lawyers are called upon to exploit or to fill the gap. They have been at the center of such turbulence at least since the rise of the large corporation in the late nineteenth and early twentieth century. The specialization of lawyers in corporate practice and the emergence of the Wall Street law firm at that time precipitated intense concern that the legal profession was losing its independence and ethical compass.2 The result was a host of efforts designed to counter the perception that law had become less of a profession and more of a business, such as the formation of the American Bar Association and the promulgation of the Canons of Ethics.3 Indeed, the notion that lawyers constitute a distinct profession received perhaps its first systematic articulation at this time. The complexity of the era is reflected in the fact that members of the corporate bar were among the most vigorous proponents of professional and political reform, even as many of them in their private practice simultaneously helped to blunt its impact.4

Railroads have given way to information systems as the paradigm of corporate power and innovation, but corporate law practice continues to raise important and complex questions of professional responsibility that have implications for all lawyers. In the most immediate and concrete terms, changes in corporate use of legal services in the past twenty-five years or so have dramatically altered relationships between law firms and clients, partners and associates, partners and partners, and among law firms. Increased reliance on in-house legal departments has brought inside the corporation much work that previously served as the foundation of long-term relationships between firms and clients.5 Corporations now tend to seek specialized expertise rather than general services from outside counsel. They also exert more vigorous controls over how those services are provided and how they are priced.

The consequences by now are well known.6 Competition among law firms for both clients and lawyers has intensified. Business generation has become a more significant factor in promotion and compensation decisions.7 Some firms have established multiple tiers of partnership, varying with respect to compensation and voice in firm governance,8 and also have made clear that attaining partnership is no guarantee of continued tenure at the firm.9 Others have expanded the ranks of permanent associates who remain at the firm without being on a partnership track.10 Specialization has continued apace, with many associates under more pressure to specialize at an early point in their careers so that they will be able to provide expertise for which clients are willing to pay.11 Large firms have merged with one another or acquired smaller firms or practice groups.12 The marriage of United States firm Rogers and Wells and the English firm Clifford Chance may portend a trend toward mergers of firms in different countries, as lawyers reorganize in order to meet corporate clients' needs for global representation.13

These developments have consequences not only for corporate firm career patterns, training, and salaries.14 They also have ripple effects throughout the legal profession. Smaller firms face heightened competition from branch offices and the prospect of being acquired by larger firms, even as they also may obtain opportunities for business they did not have a generation ago. Observers are concerned about the difficulty of arranging for pro bono and public service practice in light of increasing billable hour targets and the fact that status as a law firm partner provides far less security than it once did.15 Legal work now tends to be performed by teams of specialists who require coordination, rather than by individual lawyers who control all aspects of the relationship with the client.16 We are far from being able to sort out the implications of all these developments, but it is clear that the shifting relationship between corporate clients and their attorneys has been an important catalyst for striking changes in the way that law practice is organized and conducted. Through their effects on law firm culture, practitioners' incentives, and lawyers' self-understandings, such changes also necessarily will have a complex influence on the ethical climate in which lawyers do their work.

Aside from the importance of corporate practice for the ways in which modern legal services are provided, certain features of that practice are notable for the important ethical issues that they raise. First are the complexities of representing an organization rather than an individual. That undertaking can be especially challenging because ethical provisions for the most part implicitly are premised on a relationship between an attorney and an individual client. The lawyer who represents a corporation represents an abstraction: her client is the corporate entity rather than any of the individuals who act on its behalf.17 Such lawyers deal daily with managers and officials who are authorized to speak for the corporation, yet they must not mistake those individuals for the entity itself. Even in the normal course of events, actors in a large organization may not be in full agreement on various matters. Lines of authority are not always clear; the organization chart may obscure as much as reveal who wields power and influence.18 The lawyer thus often must become familiar with the dynamics of the bureaucratic milieu in order to discern just which actors speak for the corporation on what issues.

The difficulty is compounded when there is reason to question whether an official is acting in the best interests of the corporation. Ethical provisions, along with the business judgment rule, suggest that the lawyer should defer to the manager in most instances, even when she might have charted a different course under the circumstances.19 That presumption of deference evaporates, however, when the lawyer knows that a corporate official is violating a duty to the entity or is acting illegally so as to threaten the corporation with serious harm.20 The problem is that this transformative moment can be quite difficult to recognize. One reason is that knowledge often is fragmented in large modern organizations. Information sufficient to ensure that a lawyer "knows" of misconduct may be scattered among several offices and people, no one of whom has the complete picture. It is tempting in such situations to conclude that one lacks the certitude necessary to challenge the corporate decisionmaker, even when such ignorance is the product of diligent avoidance of unpleasant facts.21

Even if a lawyer for the corporation concludes that sufficiently serious misconduct is occurring, ethical rules generally give her little concrete guidance about what to do. Model Rule 1.13, typical of many state provisions, directs the lawyer to "proceed as is reasonably necessary in the best interest of the organization."22 Comments to the rule state that doing so may involve review of the matter by "a higher authority in the organization."23 They also caution, however, that there should be "[c]lear justification" for taking such a step,24 and indicate that only in "an extreme case" should the lawyer bring the matter to the attention of the highest authority in the organization.25 Such ambiguity not only makes charting a course of action difficult. It also creates the risk that the lawyer ultimately will be accused of negligence in representing the entity. Even if taking certain steps were permissive rather than mandatory under state ethical rules, one may claim with the benefit of hindsight that a reasonable lawyer under the circumstances would have taken them. Indeed, even a lawyer who has been deliberately misled by a client may be found liable in some circumstances for failing to undertake her own independent investigation of the facts notwithstanding the client's repeated assurances.26

In sum, it is increasingly the case that lawyers in many kinds of modern practice represent organizations rather than individuals.27 Such a phenomenon calls for a more sophisticated understanding of the organizational milieu and the distinctive ethical issues that it generates. Corporate lawyers have significant experience with such representation, and often are acutely aware of how little guidance ethical rules can provide in this setting. A focus on corporate practice thus can generate insights that are becoming important for an ever larger proportion of lawyers.

A second disjunction between corporate practice and ethical rules is the fact that the latter traditionally have been formulated primarily with the litigator in mind. Yet transactional work, a staple of corporate practice, raises questions that do not always fit easily within this paradigm. Should a party with whom the lawyer is negotiating a joint venture, for instance, be regarded more as an adversary or as a cooperative partner? The answer may be important in determining the attorney's duty of confidentiality, as well as in identifying conflicts of interest that could arise from simultaneous or successive representation of other clients.

Similarly, should the fact that business negotiations typically take place outside the supervision of a court place a greater or lesser responsibility on lawyer and client to disclose information that other parties might regard as relevant to the negotiations? Litigation is marked by both judicial oversight and relatively stringent disclosure duties because of concern about the integrity of legal proceedings. By contrast, disclosure obligations are relatively relaxed in transactional settings, despite the absence of any constraining judicial involvement. They are based primarily on common law fraud standards, which in turn look to conventional expectations of typical parties engaged in negotiation.28 Yet reliance solely on such expectations as the touchstone of legality has the potential to create a downward spiral, as aggressive practices provoke even more aggressive responses. The cumulative effect may be to lower expectations of fair dealing, increase bargaining costs, and secure judicial validation of provisions formerly regarded as unenforceable. Corporate lawyers historically have had to navigate the transactional terrain with minimal guidance from ethical rules. This does not mean, however, that the ethical issues that arise in this form of practice are of negligible importance. Rather, it highlights the fact that law practice requires a cultivated sense of judgment that goes beyond mere rule compliance.

A third notable dimension of corporate practice is the fact that many corporate lawyers not only represent organizations, but are employed by them. The widely-noted rise in the visibility and prestige of inside counsel in the last two decades or so has fueled the continuing debate over the meaning of lawyers' professional independence. Here again, corporate lawyers have firsthand experience with a growing phenomenon: the increasing number of lawyers who are employees in various types of organizations.29 To what extent is it possible to preserve a sense of identification with a distinct professional legal culture while being immersed in an organizational culture as well?30 Is it easier to invoke ethical constraints on company conduct if the lawyer is familiar with corporate operations and is regarded as a member of the "team?" Or does her dependence on a single client who is her employer tend to make her excessively deferential toward company officials?31

Many lawyers and commentators suggest that in-house counsel are in a position to provide a unique combination of business and legal advice that helps the organization plan for, rather than simply react to, a tumultuous global economy.32 Rather than merely passing judgment on the legality of measures that management proposes, counsel help frame strategy with an eye toward anticipating and preventing legal issues from arising in the first place. This "proactive"33 approach to practice expands the boundaries of legal practice to include functions not traditionally characterized as strictly legal in nature. It also calls into question the traditional assumption that the client determines the ends of representation and the lawyer selects the means to achieve those ends. This dichotomy generally is an important premise of ethical rules, which conceptualize the lawyer as distant from the substantive objectives of the client.34 If in-house counsel do indeed become integrally involved in formulating company goals and structuring company operations, it may be unrealistic to insist they nonetheless remain legal technicians morally unaccountable for the consequences of those activities.35

Nor are business corporations the only large organizations in which corporate lawyers now practice. Corporate firms themselves are coming to resemble their clients in many respects. In addition to the greater explicit emphasis on economic considerations that I have described,36 these firms tend to be organized according to departments or practice groups, with managing partners, executive committees, and different strata of associates and partners. Some firms now are managed full-time by lawyers who forgo practice, while others are administered by non-lawyers with backgrounds in management. Non-legal professionals with expertise in areas such as personnel, finance, and employment benefits also may occupy positions of authority. As Marc Galanter and Thomas Palay predict, thefirm of the future "will become increasingly hierarchical and will take on the characteristics of the proverbial `corporate ladder.'"37 Such developments may require that a growing number of corporate lawyers take into account organizational imperatives in their exercise of professional judgment. This "complicates ethical decision-making, because lawyers must blend issues of individual conscience with issues of organizational responsibility."38 Work in large-scale practice organizations also increases the necessity for lawyers to confront the distinctive ethical ambiguities and challenges that working within a bureaucracy can present, such as fragmentation of knowledge and accountability. Such af predicament is perhaps the paradigmatic ethical quandary of the contemporary era.39 Corporate attorneys who practice within corporations and large law firms may be those lawyers who are most likely to face this conundrum in their everyday work. Their responses could tell us much about the possibilities and limits of moral accountability in an age of bureaucratic organization.

Another development in which corporate lawyers are the advance troops is the increasingly global nature of law practice.40 National boundaries pose no obstacle to modern corporate activity. A parent firm may be in one country, its subsidiaries in several others, and its joint venture partners or licensees in still others. Furthermore, its products and services may well be available in most countries around the world. Corporate counsel may have her office in New York, consult long-distance about Italian law with a subsidiary in Italy that is entering into a licensing agreement with a South African company, or travel to Japan to negotiate with a Japanese bank about financing for a project that will engage in manufacturing in several Asian countries and sell its products mainly in North America and Western Europe.

Aside from the need to master the interplay among the substantive legal provisions of the different jurisdictions that may assert an interest in such corporate activities, counsel also must navigate through a thicket of differing and sometimes conflicting rules that purport to govern the conduct of lawyers. There is no common set of ethical provisions that apply to lawyers engaged in cross-border practice.41 Indeed, there is no uniform definition of what constitutes the practice of law in various countries, or of what is permissible activity for foreign lawyers who are authorized to practice in a jurisdiction. Once these threshold issues are resolved, the lawyer must determine which country's ethical standards - and standards of malpractice liability - are applicable. An example of the striking differences that can exist between legal regimes is the Court of Justice of the European Communities' decision that in proceedings brought by the European Commission the attorney-client privilege may not be invoked with respect to communications between a client and its in-house counsel.42 The difficulty of reconciling ethical obligations under different state regimes in the United States already creates unpredictability for the large number of lawyers engaged in multistate practice.43 That complexity is magnified exponentially in the arena of transnational practice, and corporate lawyers are the ones who increasingly must respond to it.

Corporate lawyers also tend to be in the vanguard of another emerging trend in legal practice: the subjection of lawyers to multiple sources of ethical governance.44 The pervasiveness of government regulation in the modern economy, the vast increase in the scope of corporate enterprise and activities, and an era of relatively modest regulatory enforcement resources have led to demands that lawyers be more attentive to the social impact of their clients' activities. One example of this is the subjection of lawyers to liability to clients under common law theories such as malpractice and breach of fiduciary duty,45 with ethical rules treated as evidence relevant to the issue of the propriety of an attorney's conduct.46 In addition, lawyers increasingly are potentially subject to liability to non-clients in actions such as suits for negligent misrepresentation.47 Given the number and interdependence of parties in modern business transactions, and the often plausible claims of reasonable reliance on the lawyer's work, the circle of those who are able to bring actions against corporate attorneys may well continue to widen.

Furthermore, regulatory agencies have steadfastly insisted that state ethical rules are not the sole set of standards to which attorneys must conform. The Securities and Exchange Commission has brought enforcement actions on the basis of its authority to govern the conduct of lawyers that practice before it.48 In doing so, it has suggested, for instance, that lawyers may have an obligation to prevent a client from consummating a transaction as to which there has been insufficient disclosure.49 It also has concluded that a lawyer under some circumstances may be held responsible for failing to take steps to prevent a recurrence of illegal activity by company employees.50 The Office of Thrift Supervision has brought charges alleging that a law firm assumed the regulatory compliance and disclosure duties of its federally insured thrift institution by interposing itself between the client and the regulatory agency.51 Tax lawyers are subject to a more stringent standard of good faith in presenting client positions than are other lawyers.52 Finally, bankruptcy rules may impose stricter disclosure requirements than ethical rules regarding potential conflicts of interest, and failure to comply with them may subject a lawyer to criminal prosecution.53 The fact that corporate lawyers are strategically placed in positions of influence with respect to regulated activities has led some to maintain that they have an obligation to serve as "gatekeepers" who restrain misconduct or even "whistleblowers" who report it.54 Such roles are in tension with the notion that the attorney's sole obligation is to the client, and the claim that self-regulation by the legal profession offers the best assurance of ethical legal practice.

This leads to a final feature of corporate law practice that has particular significance for ethical purposes. This is the fact that corporations are not simply private actors pursuing their own goals along with other interest groups in society. Rather, as Charles Lindblom has noted, a market-based economy delegates to corporations substantial authority over matters of wide-ranging social importance, such as employment, the availability of consumer goods, and investment decisions that determine how and when resources will be used.55 This arguably places the business firm at the intersection of private and public domains. In light of this, it is not surprising that the nature and purposes of the corporation have been fiercely contested questions since at least the latter part of the nineteenth century.56 The debate has taken on even greater urgency as sprawling global operations and the rapid emergence and obsolescence of new technology have intensified the dynamism of corporate enterprise at the dawn of the twenty-first century.57

This generates special challenges for corporate lawyers because it requires that they play two roles that to some degree are in tension. The rapid pace of change in the corporate world demands that lawyers create new legal forms and arrangements to address unprecedented circumstances. Such creativity has always been necessary for those who represent corporations, from the lawyers who devised trusts and holding companies in the late nineteenth century to those who fashioned various "poison pills" to deter takeover activity a century later. As Michael Powell has observed, business lawyers create law "from the ground up" by developing novel legal structures and casting them in a vocabulary that confers on them the status of legitimate extensions of traditional legal categories.58 As activities outrun the legal paradigms meant to contain them, the alert lawyer exploits "loopholes" and pushes against the limits of the law in an effort to secure advantage for her client.

Yet the corporate lawyer must also be mindful that the integrity of the legal system is a form of social capital in a market society. A competitive economy requires cooperation and trust in order to flourish. As a study of lawyers in Silicon Valley suggests, lawyers are often strategically positioned to create and sustain this social capital.59 Law cannot be seen merely in instrumental terms, as an obstacle to be overcome with the help of professionals who are trained to capitalize on its ambiguity. In such a world, "abiding by the `rule of law' is only for wimps: the smart, powerful people opt out of law by means of lawyers, and thereby provoke others to do likewise."60 It is difficult for legal and social norms in such a world to persist beyond the next shift in the balance of power. The effectiveness of law in a democratic polity depends heavily on voluntary compliance, and such compliance in turn requires the perception that law has at least some intrinsic normative force.61

How corporate lawyers present legal provisions to their clients, and how far they are willing to push the letter of the law regardless of its spirit, cumulatively has the potential to have a profound effect on attitudes toward the legal system.62 Performance of this quasi-public role means that lawyers at times may have to prevail upon their clients to forbear from exploiting every possible legal advantage, for the sake of both the client's long-term interest and that of society as a whole.63 The distinctive function and influence of business corporations in a market democracy thus means that the corporate lawyer's work unavoidably has both private and public dimensions whose tensions are not always easily mediated.

II. THE Symposium

The contributions to this symposium capture these ethical complexities of corporate practice. Mary Daly's paper on multidisciplinary practice addresses a topic that has generated intense recent debate about the future of the legal profession. That intensity has only increased with the June 1999 recommendation of the American Bar Association Commission on Multidisciplinary Practice that ethical provisions be modified in order to permit the association of lawyers and non-lawyers in integrated professional services organizations.64 While she does not officially speak for the Commission, Professor Daly's position as its Reporter affords her a unique perspective on the controversy. Her article offers a valuable guide to the concerns expressed before the Commission, the considerations that moved it to offer its recommendations, and the ways in which that body sought to ensure that multidisciplinary practices do not undermine fidelity to ethical values that traditionally have distinguished the legal profession.

The issue of multidisciplinary practice has particular salience for corporate lawyers. The diversity and complexity of modem corporate operations often requires advice on interconnected legal and non-legal aspects of various problems. Lawyers may work closely with other professionals such as accountants, economists, investment bankers, engineers, and scientists in coordinated teams designed to guide the business firm through intricate regulatory, financial, and scientific mazes. Some have argued that the need for such assistance has created a demand for their provision under a single organizational roof, which arguably can provide more efficient service than can more ad hoc arrangements. Ethical rules in this country, however, pose an obstacle to such a development. Provisions prohibiting fee-sharing between lawyers and non-lawyers,65 partnerships between lawyers and non-lawyers in organizations engaged in the practice of law,66 and the unauthorized practice of law67 all operate to prevent close organizational affiliation between lawyers and non-lawyers.

The issue has a global dimension by virtue of the fact that accounting firms in many parts of Europe have relied upon more lenient regulations and a tradition of fragmented legal services to become powerful institutions engaged in what many in this country regard as the practice of law. As is clear from Professor Daly's discussion of this phenomenon and the authorization of non-lawyers to engage in "tax practice" in the United States, it is increasingly difficult to define precisely what constitutes the practice of law. Accounting firms provide "consulting" services such as litigation support, risk assessment, and settlement evaluation that many lawyers traditionally have furnished, even if those activities do not include courtroom representation. The Big Five accounting firms also have established close organizational affiliations with major European law firms, which expands the scope of what is done under their practical, if not formal, aegis.68

As Professor Daly's paper makes clear, current controversy is not so much over the prospect of multidisciplinary practice, which already occurs on a regular basis, as it is over the possibility of multidisciplinary partnership. Her analysis is enormously helpful in clarifying the different possible types of association that may exist between lawyers and non-lawyers, as well as the ethical concerns that surround each. For instance, lawyers traditionally have been subject to stringent duties of confidentiality. By contrast, those accountants functioning as auditors are subject to obligations of disclosure by virtue of their role as monitors who attest to the accuracy of companies' financial statements. This difference is reflected, for example, in the contrast between SEC rules governing lawyers and auditors,69 as well as in the Supreme Court's refusal to recognize an evidentiary privilege in federal court for communications between accountants and their clients.70 To what extent could professionals with such differing ethical traditions be able to work together in a common organization without each compromising their ethical obligations? More broadly, would the employment of lawyers in the legal services division of a multidisciplinary professional services firm erode attorneys' sense of being members of a distinctive legal culture? Should we find reassurance in the experience of in-house counsel, who are not only lawyers for but employees of the organizations in which they work? Or does the fact that in these cases the lawyer's employer is also her client distinguish that setting from one in which the client is a third party?

The ABA Commission's proposals also raise important questions about regulatory authority over the legal profession. The Commission's definition of legal practice, for instance, is intended to subject to state bar supervision many activities conducted by lawyers in accounting firms that currently are ostensibly beyond the bar's jurisdiction because they are denominated as tax practice or consulting.71 The Commission also recommends that state supreme courts have oversight over multidisciplinary organizations that are not solely controlled by lawyers.72 Such organizations would be required annually to certify that they have adopted structures and policies that ensure lawyers' independence, and regulators would have the authority to audit multidisciplinary practices to verify these representations. The Commission's recommendations thus may open the door to more systematic attention to the importance of organizational culture in shaping lawyers' identification of and response to ethical questions.

As is apparent, the debate over multidisciplinary practice is but the latest chapter in the ongoing discussion over the meaning of lawyers' professional independence. This is a concern that received its first full articulation during the period of the nineteenth century when the corporate law firm emerged as a distinct organizational form of practice. It is thus not surprising that developments in the scope and nature of legal services for corporate clients continue to provoke significant reflection on lawyers' professional responsibilities.

Richard Painter's piece on the possibility of advance waiver of conflicts of interest is prompted by awareness that careful consideration of the concerns that underlie conflicts rules is necessary in light of the attenuation of long-term relationships among corporate clients and their attorneys, the greater mobility of lawyers among firms, and the growing size and dispersal of both business entities and law firms. How salient are considerations of loyalty, for instance, when lawyers represent a parent corporation in a transaction and later litigate against a subsidiary in an unrelated matter? Does it matter how recently the subsidiary was acquired or the degree to which its products have a connection to those of the parent? What about a firm's representation of a client in one transaction and a party on the opposite side of the table from that client in an unrelated deal? Should we treat the two parties effectively as adversaries for conflicts purposes? Does it matter how large the industry is? What about a practice group in the Chicago office of a law firm that moves to another firm, which represents a party adverse to a client of the old firm's Los Angeles office, on a matter in which no members of the practice group were involved? Does it matter if the Los Angeles office is actually a formerly independent third firm that was recently acquired by the old firm? Modern communications technology may make it possible to devise ingenious ways to safeguard information between one set of lawyers in a firm and another - but that technology also creates the opportunity to link otherwise disparate offices around the globe almost instantaneously. Complicated scenarios such as these have made it especially difficult to predict when conflicts rules will be invoked to disqualify lawyers from representation - or when attorneys will suffer penalties for failing to withdraw.

Professor Painter suggests that we can achieve some clarity in this area by recognizing that there are instances in which the sophistication of corporate clients warrants a contractarian approach to conflicts questions. He would revise Model Rules 1.7 and 1.9 to permit an attorney and a client independently represented by separate counsel to specify in their retainer agreement matters such as what future conflicts will and will not be grounds for disqualification, and would modify Model Rule 1.10 to permit such parties to agree that a lawyer's disqualification will not extend to her firm if the firm screens the appropriate lawyers from information about the matters in question. He emphasizes that such advance waivers would not constitute consent to disclosure of confidential information in simultaneous and successive representation of other clients. He suggests that courts can provide much-needed guidance in this area by uniformly enforcing such waivers, which will permit parties to tailor agreements to their particular needs.

Adoption of such a proposal could go a long way toward providing some predictability in what currently is a minefield of corporate practice. Corporations represented by separate counsel would seem to be the paradigm of the informed contracting party, whose commercial sophistication and access to information are comparable to those of their attorneys. At the same time, however, even these entities' powers of foresight may be inadequate to anticipate all possible scenarios in which conflict of interest concerns may become salient. Furthermore, even if we assume virtually perfect information, should lawyers' ethical responsibilities in this area be determined exclusively by agreement between attorney and client? Are the interests at stake solely "private?" Are there social interests implicated beyond those of the parties involved in the agreement? The Model Rules are conspicuous in their abandonment of any reference to "appearance of impropriety," but should sensitivity to such appearances continue to have some weight in ethical deliberation? These are but a few of the issues raised by the disjunction between recent developments in corporate law practice and ethical rules whose vision of the attorney-client relationship is predominantly individual and personal. Professor Painter provides us with a valuable opportunity to explore these issues in depth.

Finally, the discussion of class action litigation that centers around Professor Coffee's remarks reflects the fact that the scale and scope of modern economic activities greatly expand the number of people affected by corporate conduct. As firms harness novel technology and draw on new scientific developments, they may set in motion complex chains of causation whose outcomes range far and wide. Collecting and analyzing evidence of such outcomes demand investigation and expertise that dwarf the resources of most individuals. These dynamics have led to the use of class actions in cases in which a substantial number of persons allege injury resulting from corporate activity. Rules have made it easier to resolve the claims of virtually everyone who might have a claim against the defendant(s). The result, ideally, is enhanced predictability and adequacy of corporate funds devoted to providing compensation for injury.

As Professor Coffee observes, however, the attorney-client relationship in the class action lawsuit fits awkwardly at best with fundamental premises of legal ethics. First, the relationship is not simply one of principal and agent. The attorney not only represents the client, but also finances the action by incurring often substantial litigation expenses. This makes her a creditor who expects ultimately to be reimbursed for those expenses out of the client's damage award. From another perspective, the attorney is a joint-venturer who anticipates a return on her investment in the form of attorney's fees. Thus, as Professor Coffee puts it, the class action is a situation in which the lawyer "is simultaneously creditor, joint-venturer, and agent of the class..."

Furthermore, the client in a class action is not a principal who always speaks with one voice. While the attorney formally represents the class as an entity, that class is compromised of members who may have different injuries that cannot necessarily be compared according to a common metric. This, in turn, can lead to different preferences with respect to remedies. Some persons, for instance, may have suffered serious physical injury and are already incurring medical expenses, while others may simply be at greater risk of future injury by virtue of the defendant's conduct. The former may want large payments right away in order to defray their expenses, while the latter may be most primarily concerned with ensuring that the recovery fund remain adequate to meet future claims that may arise decades hence. It was this scenario that particularly concerned the Supreme Court in Amchem Products, Inc. v. Windsor, which struck down a global settlement between plaintiffs and defendant asbestos companies.73

The attorney-client relationship in the class action context thus deviates in several ways from our conventional conception of legal representation. One especially clear example of the difficulties this may pose is the decision whether to settle or to continue to litigate a lawsuit. The attorney's role as creditor and joint-venturer, for instance, may make her more risk-averse, and thus more favorable toward settlement than are class members. Class members with current injuries may regard as satisfactory a settlement offer that includes minimal adjustment for inflation, while those uncertain about whether and when they may eventually suffer injury may prefer more protection from rising costs. Who should decide whether and on what terms to settle: the attorney, the named plaintiffs, or a majority of class members? It is fair to lock individuals into a settlement with which they disagree, as occurs when class certification precedes settlement? How can we square any of these outcomes with the norm that individuals should be bound only by agreements to which they consent?

Given the difficulty of obtaining meaningful actual consent in the class action context, Professor Coffee suggests that we use a hypothetical bargaining approach to resolve this and other difficulties raised by the absence of a conventional attorney-client relationship in class action litigation. Applied to the class action, this framework requires that we attempt to imagine the terms of representation to which rational attorneys and clients would have agreed in advance of litigation. At minimum, Professor Coffee argues, the attorney and class member would agree to respect client autonomy. This principle can best be vindicated either by delaying the class certification decision or by permitting any class member to opt out of a settlement with which she disagrees.

As the commentators' reactions indicate, Professor Coffee performs a valuable service by confronting in unflinching fashion the tensions between ideals and practice in the conduct of class action litigation. By rejecting some of the fictions with which we paper over these tensions, he forces us to think carefully about what values are most important to us in this setting and how we might seek to accommodate them. At the same time, the commentators voice some skepticism about his ultimate proposal. Roberta Karmel, for instance, questions whether the use of hypothetical bargaining theory is any less a fiction than other approaches that have attempted to address the challenges in this area. She also expresses concern that many individuals may not be able to make an informed decision about opting out, even if that alternative is available after settlement. The root of many of the difficulties we face with class actions, she suggests, is the attempt to use litigation to resolve social problems that ideally should be addressed by administrative and legislative action. Both Paul Saunders and A.A. Sommer echo Professor Karmel's additional fear that the possibility of post-settlement opt-outs will discourage defendants from settling. Mr. Saunders suggests that defendants faced with the prospect of litigating individual claims after settlement with other plaintiffs may well conclude that they would rather try the case once and for all, rather than incur the expense and aggravation of defending multiple lawsuits. He concludes that the best way to protect class member interests may be for the court to take an active role both in the certification decision and in conducting a review of the fairness of the settlement. Mr. Sommer concurs, adding that even an imperfect conclusion to litigation may be better than no conclusion at all.

The poignancy of the potential conflict between group and individual interests in the class action context is perhaps best expressed by Paul Saunders' account of an African-American man who did well on an employment test, the scoring of which was revised in the settlement of a class action suit alleging disparate racial impact. The revision resulted in many more African-Americans with higher scores, but deprived him of the opportunity that he thought he had won. Such a story acutely expresses the dilemmas that can arise in a world of large institutional actors. As Carrie Menkel-Meadow has put it, "Must we alter our ideals of individual justice to deal with a world in which technology and modernity brig If, mass harms that may require aggregate justice?"74

III. CONCLUSION

As these papers and the discussion reflect, the ethical issues involved in corporate representation often require us to address fundamental questions about the roles that lawyers play and the obligations to which they are held. Indeed, as I have suggested, the tranformative character of corporate enterprise virtually guarantees that corporate lawyers perpetually will be facing dilemmas for which our existing professional responsibility framework provides imperfect guidance.

Because of this, two scholarly tasks are of particular importance. The first is to determine precisely what it is that corporate lawyers do. We need as clear a picture as possible of the dynamics and texture of everyday practice - the incentives that it generates, the rewards that it offers, the temptations and choices that it thrusts upon practitioners.75 If ethical directives are to be taken seriously rather than dismissed as pious exhortations, they must be grounded in appreciation of the practical context in which corporate attorneys operate. As in so many areas of recent legal scholarship, this project will be enhanced by drawing upon interdisciplinary perspectives.76

At the same time, a second necessity is to gain critical distance from those realities of everyday practice that we are able to identify. If we fail to do this, ethical norms will do little more than ratify existing conduct. Directives must have an aspirational, rather than merely descriptive, character.77 This unavoidably requires reflection upon the roles we believe lawyers should play and the normative commitments they should seek to realize. Corporate lawyers may dismiss any suggestion that their daily activity in the pragmatic world of commerce raises any deep jurisprudential issues. However, as Robert Gordon has observed:

[W]hen a lawyer helps a client arrange a transaction so as to take maximum advantage of the current legal framework, he or she becomes one of the army of agents who confirm that framework by reinforcement and extend it by interpretation into many niches of social life. The framework is an ideological one, i.e., a set of assertions, arguments, and implicit assumptions about power and right.78

In short, we need a dialectic between the "thick description"79 of the world of practice and the normative assessment of its features. This dialectic is hard enough to sustain with respect to any form of law practice. The frenetic pace of business enterprise in the contemporary world, however, makes it especially difficult for those who attempt to understand and provide guidance for corporate lawyers. Given the profound impact of corporate activity on the lives and fortunes of millions throughout the world, however, few undertakings are more important.

FOOTNOTE

1. See generally JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY (1976).

2. See Robert W. Gordon, The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 51, 61 (Gerard W. Gawalt ed., 1984); JEROLD S. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 40 (1976); The Commercializing of the Profession, THE Am. LAW., Mar. 1895, at 84.

3. See AUERBACH, supra note 2, at 40-53,62-101; KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 211-25 (1989).

4. See Gordon, supra note 2, at 58-62.

FOOTNOTE

5. See generally Abram Chayes & Antonia H. Chayes, Corporate Counsel and the Elite Law Firm, 37 STAN. L. REv. 277 (1985) (discussing rapid growth in both importance and size of in-house counsel); Ronald J. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 MD. L. REV. 869, 916 (1990) (arguing that economic analysis is critical to discussion of professionalism). On the rise of inside counsel to greater prominence and status, see Robert E. Rosen, The Inside Counsel Movement, Professional Judgment and Organizational Representation, 64 IND. L.J. 479 (1989); Ted Schneyer, Professionalism and Public Policy: The Case of House Counsel, 2 GEO. J. LEGAL ETHICS 449 (1988); How Inside Counsel Are Shaping Firms, NAT'L L.J., June 16, 1997, at Al.

6. See generally MARC GALANTER BL THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BiG LAW FiRM (1991).

7. See SUSAN S. SAMUELSON, LAW FIRm MANAGEMENT: A BUSINESS APPROACH 1.3.4, at 1:25 (1994) ("Since firms are under constant pressure to replenish and expand their client base, they have tended to alter their compensation systems to reward those who bring in business over those who are skilled at servicing clients."). See generally Ronald J. Gilson & Robert H. Mnookin, Sharing Among the Human Capitalists: An Economic Inquiry into the Corporate Law Firm and How Partners Split Profits, 37 STAN. L. REV. 313 (1985) (analyzing traditional income division of large firms and alternatives). For a case study of such a transition from a seniority based to a merit based partner compensation with a focus on billable hours and business generation at Rogers & Wells, see Susan Hansen, The Young and the Restless, AM. LAW., Sept. 1995, at 66.

FOOTNOTE

8. See MICHAEL H. TROTTER, PROFIT AND THE PRACTICE OF LAW: WHAT's HAPPENED TO THE LEGAL PROFESSION 48 (1997); Ward Bower, The Changing Face of Partnership, in THE ALTMAN WELL PENSA ARCHIVE ON STRATEGIC PLANNING AND MANAGEMENT FOR LAW FIRMS AND CORPORATE LEGAL DEPARTMENTS 179, 186 (Susan D. Sjostrom ed., 1996).

9. See TROTTER, supra note 8, at 86 ("Partners without their own clients find it hard in many firms to maintain their position and compensation."); Bower, supra note 8, at 184-85 (noting that firms should dismiss partners that are under-utilized or not considered crucial to firm growth and reallocate hours to associates).

10. See EVE SPANGLER, LAWYERS FOR HIRE: SALARIED PROFESSIONALS AT WORK 67-68 (1986); Bower, supra note 8, at 184-86; Gilson & Mnookin, supra note 7, at 315-16, 316 n.7.

11. See SPANGLER, supra note 10, at 67-68; TRoTTER, supra note 8, at 104.

FOOTNOTE

12. See SAt.sort, supra note 7, 1.3.4, at 1:25 n.22.

13. See John E. Morris, The New World Order, THE AM. LAW., Aug. 1999, at 92.

14. See generally Debra Baker, Cash-and-Carry Associates, 85 A.B.A. J. 40 (1999) (reporting a developing trend of a "cash and carry culture in which associates are pocketing the financial rewards and grabbing practical experience with little thought of investing for the long haul.").

15. For a collection of essays discussing the role that law firms might play in furthering public ends, see THt LAW FIRM AND THE PUBLIC GOOD (Robert A. Katzman ed., 1995).

16. See John Leubsdorf, Pluralizing the Client-Lawyer Relationship, 77 CORNELL L. REv. 825, 830-37 (1992) (discussing several ways "[flaw firms can fit into rules governing client-lawyer relationships"); Milton C. Regan, Jr., Law Firms, Competition Penalties, and the Values of Professionalism, 13 GEo. J. LEGAL ETHics 1, 48-59 (1999); Mary Twitchell, The Ethical Dilemmas of Lawyers on Teams, 72 MINN. L. REv. 697 (1988) (arguing that a long-term solution to regulating lawyers working together lies in the cooperation of practicing lawyers, legal scholars, and social scientists rather than ad-hoc judicial regulation).

17. See MODEL RULEs OF PROFESSIONAL CoNDucT Rule 1.13(a) (1999) ("A lawyer employed or retained by

FOOTNOTE

an organization represents the organization acting through its duly authorized constituents.") [hereinafter MODEL RuLEs].

18. See generally ROBERT JAcKALL, MoRAL MAZES: THE WORLD OF CORPORATE MANAGERS (1988).

19. See MODEL RULEs Rule 1.13 cmt. 3 ("When constituents of the organization make decisions for it, the decisions ordinarily must be accepted by the lawyer even if their utility or prudence is doubtful.").

20. See MODEL RULESRule 1.13(b).

21. See David Luban, Contrived Ignorance, 87 GEO. L.J. 957, 959 (1999) (discussing the doctrine of willful ignorance, which equates contrived ignorance to knowledge in establishing the mens rea for a crime).

22. MODEL RuLES Rule 1.13(b).

23. MoDEL RuLES Rule 1.13 cmt. 4.

24. Id.

25. MODEL RuLEs Rule 1.13 cmt. 5.

FOOTNOTE

26. See FDIC v. Clark, 978 F.2d 1541 (10th Cir . 1992) (holding two attorneys liable for their negligent failure to investigate, uncover, and prevent a fraud perpetrated against their client).

27. See David B. Wilkins, Everyday Practice Is the Troubling Case: Confronting Context in Legal Ethics, in 2 EVERYDAY PRACTICES AND TROUBLE CASES: FUNDAMENTAL IssuEs IN LAW AND SOCIETY RESEARCH, 68, 83-84 (Austin Sarat et al. eds., 1998).

28. See MoDEL RuLEs Rule 4. 1.

FOOTNOTE

29. See generally SPANGLER, supra note 10 (addressing in house counsel's need to balance duty to the employer with professional legal responsibilities).

30. See Donald C. Langevoort, The Epistemology of Corporate-Securities Lawyering: Beliefs, Biases and Organizational Behavior, 63 BRooK. L. REv. 629, 630 (1997) (discussing lawyers' professional responsibility and independence when counseling organizational clients).

31. For a thoughtful discussion of such questions, see General Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994).

32. See, e.g., Mary C. Daly, The Cultural, Ethical and Legal Challenges in Lawyering for A Global Organization: The Role of the General Counsel, 46 EMORY L.J. 1057, 1068-89 (1997).

33. Id. at 1068.

34. See, e.g., MODEL RULES Rule 1.2(b) ("A lawyer's representation of a client ... does not constitute an endorsement of the client's political, economic, social, or moral views or activities.").

FOOTNOTE

35. See Richard W. Painter, The Moral Interdependence of Corporate Lawyers and Their Clients, 67 S. CAL. L. REV. 507,511 (1994).

36. See supra notes 6-15 and accompanying text.

37. Marc S. Galanter & Thomas M. Palay, Large Law Firm Misery: It's the Tournament, Not the Money; 52 VAND. L. REV. 953, 966 (1999).

38. DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHics 358 (2d ed. 1995).

39. On the difficulties of developing a coherent account of moral responsibility in bureaucratic organizations, see David J. Luban et al., Moral Responsibility in the Age of Bureaucracy, 90 MICH. L. REV. 2348 (1992).

40. See generally Richard L. Abel, The Future of the Legal Profession: Transnational Law Practice, 44 CASE W. RES. L. REV. 737 (1994); David M. Trubek et al., Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 CASE W. RES. L. REV. 407 (1994).

FOOTNOTE

41. For a discussion of the diverse approaches to this subject, see the essays in RIGHTS, LIABILITY, AND ETHIcs INLEGAL PRACTICE (Mary C. Daly & Roger J. Goebel eds., 1995). However, "twelve Member States of the European Economic Community (EEC) adopted a common Code of Conduct for Lawyers in the European Community (CCBE Code or Code) as a framework of principles of professional conduct to be applied to all cross-border activities between lawyers in the EEC." John Toulmin, A Worldwide Common Code of Professional Ethics? in RIGHTs, LIABILITY, AND ETHICS IN INTERNATIONAL LEGAL PRACTICE 207. For a painstaking analysis of the CCBE, see generally Laurel S. Terry, An Introduction to the European Community's Legal Ethics Code (pts. I & II), 7 GEO. J. LEGAL ETHICS 1, 345 (1993).

42. See AM&S Europe Ltd. v. Commission, Case 155/79, 1982 E.C.R. 1575; Commission Decision, 85/79/EEC, 1985 O.J. (L35) 58. The Commission, mindful of the conflict with United States law on this issue, generally has not been aggressive in pursuing such evidence, but its "forbearance is a matter of grace, not of right." Daly, supra note 32, at 1107.

43. See Teresa S. Collett, Foreword, Symposium: Ethics and the Multijurisdictional Practice of Law, 36 S. TEx. L. REv. 657, 657 (1995) (introducing a symposium focusing on alternative solutions to the ethical problems encountered by lawyers practicing in multiple jurisdictions).

44. See Ted Schneyer, Special Issue Institutional Choices in the Regulation of Lawyers: Foreword: Legal Process Scholarship and the Regulation of Lawyers, 65 FORDHAm L. REv. 33 (1996); David B. Wilkins, Who Should Regulate Lawyers? 105 HARv. L. REv. 801 (1992).

FOOTNOTE

45. See John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 RUTGERS L. REv. 101, 112 (1995) (arguing that one part of the law regulating lawyers with which legal malpractice law should be integrated is the law defining and enforcing lawyers' fiduciary duties); Roy R. Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort, and Contract: A Primer on the Legal Malpractice Puzzle, 47 SMU L. REv. 235 (1994).

46. See, e.g., Smith v. Haden, 872 F. Supp. 1040, 1045 n.2 (D.D.C. 1994) ("While it is true that a Disciplinary Rule cannot independently provide the basis for a claim, the standards set by the District of Columbia Court of Appeals in the Code of Professional Responsibility and Disciplinary Rules it adopts for lawyers licensed to practice in this jurisdiction may be relevant to establishing the standard of care governing attorney conduct.").

47. See, e.g., RESTATEMENT (SECOND) oF TORTs 552(1) ("One who, in the course of his business, profession or employment, or in any transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information."); McCamish v. RE. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (holding a law firm liable to nonclients for the negligent misrepresentation, under the RESTATEMENT (SECOND) OF TORTs 552).

FOOTNOTE

48. See, e.g., In re Carter & Johnson, Exchange Act Release No. 34-17597, [1981 Transfer Binder] Fed. Sec. L. Rep. (CCH) 82,847, at 84,145 (Feb. 28, 1981). That authority is expressed in SEC Rules of Practice, 17 C.F.R. 201.102(e)(1)(ii) (1976).

49. See SEC v. National Student Mktg. Corp., 457 F. Supp. 682 (D.D.C. 1978).

50. See In re Gutfreund, Exchange Act Release No. 34-31554, [1992 Transfer Binder] Fed. Sec. L. Rep. (CCH) 185,067, at 83,597 (Dec. 3, 1992).

FOOTNOTE

51. See In re Fishbein, OTS AP-92-19 (Dep't Treas. 1992), reprinted in THE ATTORNEY-CLIENT RELATIONsHIP AFTER KAYE, SCHOLER 239 (PLI Corp. Law and Practice Course Handbook Series No. 779, 1992).

52. See A.B.A. COMM. ON STANDARDS OF TAx PRAcE: REPORT OF THE SPECIAL TASK FORCE ON FORMAL OPINION 85-352 (1985), excerpted in DEBORAH L. RHODE & DAv[D LUBAN, LEGAL ETHICS 463,464 (2d ed. 1995) (stating that tax advisor must believe that position taken has close to a one-in-three chance of prevailing in order to be acting in good faith); Department of the Treasury, Regulations Governing the Practice of Attorneys, Certified Public Accountants, Enrolled Agents, and Enrolled Actuaries Before the Internal Revenue Service, 59 Fed. Reg. 31523 (June 20, 1994).

53. See United States v. Gellene, 182 EM 578 (7th Cir. 1999); Karen Donovan, John Gellene Sentenced to 15 Months, NAT'L L.J., Aug. 10, 1998, at A6.

FOOTNOTE

54. See, e.g., George H. Brown, Financial Institution Lawyers as Quasi-Public Enforcers, 7 GEO. J. LEGAL ETHics 637 (1994); George C. Harris, Taking the Entity Theory Seriously: Lawyer Liability for Failure to Prevent Harm to Organizational Clients Through Disclosure of Constituent Wrongdoing, 11 GEO. J. LEGAL ETHICS 597 (1998). On the concept of professionals as gatekeepers, see Reinier Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. EcoN. & ORG. 53 (1986).

55. See CHARLES E. LINDBLOM, POLITICS AND MARKETs: THE WORLD'S POLITICAL-ECONOMIC SYSTEMS (1977). 56. For an account of the debate, see JAMES W. HURST, THE LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE UNITED STATES, 1780-1970 (1958). For a recent continuation of it, see PROGRESSIVE CORPORATE LAW: NEW PERSPECTIVES ON LAW, CULTURE, AND SOCIETY (Lawrence E. Mitchell ed., 1995).

57. See EDWARD LUTTWAK, TURBO-CAPITALISM: WINNERS AND LOSERS IN THE GLOBAL ECONOMY (1999). As Larry Ribstein has observed, large corporate law firms "serve in a broad counseling capacity for the biggest

FOOTNOTE

corporate clients that are in a position to do the most harm." Larry E. Ribstein, Ethical Rules, Agency Costs,.and Law Firm Structure, 84 VA. L. REv. 1707, 1739 (1998).

58. Michael J. Powell, Professional Innovation: Corporate Lawyers and Private Lawmaking, 18 L. & hoc. INQuiRY 423 (1993).

59. See Mark C. Suchman & Mia L. Cahill, The Hired Gun as Facilitator: Lawyers and the Suppression of Business Disputes in Silicon Valley, 21 L. & Soc. INQuiRy 679 (1996).

60. Robert W. Gordon, Corporate Law Practice as a Public Calling, 49 Mo. L. REv. 255, 259 (1990).

61. See Robert W. Gordon & William H. Simon, The Redemption of Professionalism?, in LAWYERS' Ir)EALS/LAWYERS' PRACTICES 230, 234-35 (Robert L. Nelson et al. eds., 1992).

62. See generally Gordon, supra note 60.

63. See Ribstein, supra note 57, at 1739 ("[L]egal advice may increase social costs by helping clients evade

FOOTNOTE

the law or its consequences. Devices that encourage lawyers to give advice that takes societal interests into account rather than to serve only the client's narrow private interests therefore may reduce social costs.") (footnote omitted).

64. See Mary C. Daly, Choosing Wise Men Wisely: The Risks and Rewards of Purchasing Legal Services from Lawyers in a Multidisciplinary Partnership, 13 GEo. J. LEGAL ETHICS 217 (2000).

65. See MoDEL RuLEs Rule 5.4(a). 66. See MODEL RuLES Rule 5.4(b). 67. See MoDEL RuLEs Rule 5.5.

FOOTNOTE

68. See John E. Morris, King Arthur's March on Europe, Am. LAW., June 1998, at 49. This trend may be gathering momentum in the United States. See Siobahn Roth, Inside the Ernst & Young Deal.' Law Firm is Launched with Big 5 Loan; Lawyers Say They Remain Independent, LEGAL T[MES (Nov. 8, 1999), at 1.

69. For a comparison of SEC treatment of accountants and lawyers, see Richard W. Painter & Jennifer E. Duggan, Lawyer Disclosure of Corporate Fraud: Establishing A Firm Foundation, 50 SMU L. REV. 225, 234-55 (1996).

70. See United States v. Arthur Young & Co., 465 U.S. 805, 807, 817 (1984).

FOOTNOTE

71. See Daly, supra note 64, at Commission Recommendation discussion. 72. See id.

FOOTNOTE

73. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).

FOOTNOTE

74. Carrie Menkel-Meadow, Ethics and the Settlements of Mass Torts: When the Rules Meet the Road, 80 CORNELL L. REV. 1159, 1170-71 (1995).

75. "[A]n individual lawyer's values and practices are strongly influenced by the ethical climate of the place in which the lawyer practices. And, equally as important, this climate correlates strongly with the type of practice setting." Wilkins, supra note 27, at 97.

76. There are various examples of scholarly efforts to gain understanding of the experience of practicing lawyers. See generally JEROME E. CARLIN, LAWYERS' ETHICS: A SURVEY OF THE NEW YORK CITY BAR (1966); JOHN P. HEINZ BC EDWARD 0. LAUMANN, CHICAGO LAWYERS: THE SOCIAL STRUCTURE OF THE BAR (rev. ed. 1994); ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM (1988); ERWIN 0. SMIGEL, THE WALL STREET LAWYER: PROFESSIONAL ORGANIZATION MAN? (1964); John P. Heinz et al., The Changing Character of Lawyers' Work: Chicago in 1975 and 1995, 32 L. & Soc'Y REv. 751 (1998Powell, supra note 58; Suchman & Cahill, supra note 59; Ronald J. Gilson & Robert H. Mnookin, Business Lawyers and Value Creation for Clients, 74 OF- L. REV. 1 (1995).

Journalists also have provided some useful portraits of law practice. See, e.g., LINCOLN CAPLAN, SKADDEN: POWER, MONEY, AND THE RISE OF A LEGAL EMPIRE (1993); KIM I. EISLER, SHARK TANK: GREED, POLITICS, AND THE COLLAPSE OF FINLEY KUMBLE, ONE OF AMERICA'S LARGEST LAW FIRMS (1990); NANCY LISAGOR Bc. FRANK LIPSIUS, A LAW UNTO ITSELF: THE UNTOLD STORY OF THE LAW FIRM SULLIVAN BC CROMWELL (1988); MARK STEVENS, POWER OF ATTORNEY: THE RISE OF THE GIANT LAW FIRMS (1987).

77. On the necessity of such "regulative ideals," see DOROTHY EMMET, THE ROLE OF THE UNREALISABLE: A STUDY IN REGULATIVE IDEALS (1994).

FOOTNOTE

78. Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES iN AMERICA 70, 110 (Gerald L. Geison ed., 1983).

79. CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 3-30(1973).

AUTHOR_AFFILIATION

MILTON C. REGAN, JR.*

AUTHOR_AFFILIATION

* Professor of Law, Georgetown University Law Center. I would like to thank Jeff Bauman for his insights both as we worked together to organize this Symposium and as we jointly taught a new course on Professional Responsibility and the Corporate Lawyer.