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Between A Rock And A Hard Place: The Erosion Of Privilege And The Duty Of Confidentiality

2242 words - 9 pages

A possible flaw of Sarbanes-Oxley is it failed to put up any resistance in thwarting the financial crisis. While the degree to which fraudulent behavior can be traced to the roots of the Great Panic of 2007 will likely be up for eternal debate, it might be telling that Sarbanes-Oxley effectively did nothing. It seems this could indicate that stronger incentives for whistleblowers (such as Dodd-Frank and perhaps other whistleblower protection regimes) are very necessary given the extreme social costs. This conclusion may be hasty, however, given the short time period between the enactment of Sarbanes-Oxley and the crash. Not only is the status of Sarbanes-Oxley still in flux over a decade ...view middle of the document...

Indeed, post-Sarbanes-Oxley go-private transactions are increasingly popular.
Further, there is substantial reason to distrust the opinions of lawyers as an interest group in confidentiality reform debates given the additional rent-seeking incentive problems. Complicated financial reform legislation creates legal jobs. Financial reform has created entire niche legal groups such as more expansive Financial Institutions Group practice areas at the major New York white shoe firms and whistleblowing lawsuits are a hotly growing business. Of course coming through this there are perverse incentives on the other side motivating lawyers to support change in the regime because of the switching costs for business institutions that would again drive the need for legal services. Bounties may then provide a carrot to continue to support Dodd-Frank and other fraud regulation efforts and curb rent-seeking activities by attorneys to lobby for corporate governance reform and extract later switching costs. Of course given the incentives on both sides of reform, we might feel there is a sense of equipoise and competition preventing lawyers extracting excessive benefits and from blockading effective ethical rules; however, the substantial incentives on both sides of the debate should still give us pause as to whether the debate is ethically compromised.
These incentives and rent-extraction function for lawyers indicate that either federal whistleblower protection regimes or state-based whistleblower protections should fill this gap in the law. Conversely, while there is still substantial capital and a propensity for wide social harm tied up in private companies, we might say that the ethical obligations for lawyers differ with respect to public companies. Lawyers may owe stronger duties towards society at large when advising companies on public markets given the broad ripple effects for IRAS, pension funds, college education savings accounts, and the like. This public/private distinction facilitates a bargain between the relaxation of duty of confidentiality with the overarching policy goal to thwart from. Moreover, it further allows lawyers and firms to sort themselves based on their tolerance for taking on these extra duties—whether in the selection of clients or, in the case of state-based regimes, geographically.
A federalized system providing at least a reasonable floor for desirable behavior by attorneys might highly desirable given the previously noted inadequacy of state-based regimes and likely lack additional change. While the classic idea of Tiebout and states as competitors might point to the value of variety, there is reason to doubt the value of competition here. First, only if the costs to shareholders stemming from fraud are substantial enough that they vote with their feet, so externalized social costs may not be properly mitigated. Moreover, we might worry about a race to the bottom (given the pro-corporate stance of Delaware...

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