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Monday, May 18, 2009

Stanford Law Review Debate: The Role of Expert Opinions in the Tax Shelter Problem

William H. Simon (Columbia), The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example, 60 Stan. L. Rev. 1555 (2008):

Clients demand bad legal advice when legal advice can favorably influence third-party conduct or attitudes even when it is wrong. Lawyers supply bad legal advice most readily when they are substantially immunized from accountability to the people it is intended to influence. Both demand and supply conditions for a flourishing market are in place in several quarters of the legal system. The resulting practices, however, are in tension with basic professional and academic values. I demonstrate these tensions through critiques of the work of academic professional responsibility consultants in such matters as Enron, Lincoln Savings & Loan, and a heretofore undiscussed aggregate litigation settlement. I also suggest reforms to reduce the incentives and pressures for bad advice that now prevail.

Bruce A. Green (Fordham), Reply--The Market for Bad Legal Scholarship: William H. Simon's Experiment in Professional Regulation, 60 Stan. L. Rev. 1605 (2008):

This a Reply to an article by Columbia law professor William H. Simon which maintains that lawyers, especially law professors, accommodate their clients' demand for dishonest views by providing bad legal advice and expert opinions. To correct this problem, Simon argues, lawyers and especially legal academics who advise clients and provide expert testimony should refuse to respect conventional norms such as client confidentiality. Further, Simon proposes, legal academics should regulate each other by "shaming" their colleagues. Simon illustrates his proposal by criticizing the work of several academics, particularly three who were opposing experts in a case in which Simon was to serve as the plaintiffs' expert witness on legal ethics issues.

This Reply argues that Simon's proposal fails both in theory and in practice. The Reply questions the magnitude of the problem, rejects Simon's proposed professional norms as ill-conceived and unworkable, and suggests that law professors will be reluctant to regulate each other by shaming their colleagues. The Reply illustrates the problems with the proposal by examining Simon's own work as an ethics expert in the case he describes in detail in his article. It demonstrates that due to the logic and practical wisdom of conventional norms, Simon was largely unable to put his theory into practice. Further, when Simon did implement his theory, he harmed the plaintiffs without achieving any countervailing public benefit. Simon's experience shows that the norms he prescribes will improve neither the practice of law nor legal scholarship.

William H. Simon (Columbia), Response--Transparency Is the Solution, Not the Problem: A Reply to Bruce Green, 60 Stan. L. Rev. 1673 (2008):

This article replies to Bruce Green's critical response to my essay The Market for Bad Legal Advice. The first part defends the account of the facts and law in the aggregate litigation case study discussed in the essay. The second part elaborates on my views on the role of the academic expert witness in litigation.

For more, see Fortune, The Role of Expert Opinions in the Tax Shelter Problem.

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