Abstract

http://ssrn.com/abstract=1567657
 
 

Footnotes (260)



 


 



Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone


Paula Schaefer


University of Tennessee College of Law

March 9, 2010

University of Tennessee Legal Studies Research Paper No. 101

Abstract:     
Joseph Collins was a successful business lawyer, with a sophisticated practice at Mayer Brown LLP. In January 2010, Collins was sentenced to seven years in prison for his role in a massive fraud that cost investors millions and sent his client Refco, Inc. into bankruptcy. At sentencing, the judge reportedly stated, “I think this is a case of excessive loyalty to his client.” Collins’ own testimony reflects a lawyer who believed he was zealously representing his client's interests. But in reality, Collins’ conduct was not “loyal” to his client. He contributed to his client’s destruction.

With the Collins example and others, I argue that business lawyers act as zealous advocates to their own clients’ peril. I explain that professional conduct rules are central to the problem. The advisor’s duties are relegated to a single rule that provides scant direction about how to advise. In the absence of direction, lawyers fill in the gaps with zealous advocacy. After examining the problems of the zealous advocacy mantra, I suggest that “fiduciary duty” would be a preferable touchstone for attorney-advisors. While it is true lawyers are already fiduciaries, fiduciary duty is not the focus for most lawyers. I argue that it should be. Using fiduciary duty as a framework, I propose professional conduct rules that would provide direction to business lawyers that is more consistent with their clients’ interests.

Number of Pages in PDF File: 68

Keywords: zealous advocacy, fiduciary duty, advisor, professional conduct rules, attorney malpractice

JEL Classification: K20, K42

Accepted Paper Series





Download This Paper

Date posted: March 10, 2010 ; Last revised: July 23, 2010

Suggested Citation

Schaefer, Paula, Harming Business Clients with Zealous Advocacy: Rethinking the Attorney Advisor's Touchstone (March 9, 2010). University of Tennessee Legal Studies Research Paper No. 101. Available at SSRN: http://ssrn.com/abstract=1567657

Contact Information

Paula Schaefer (Contact Author)
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996
United States
865-974-6793 (Phone)

Feedback to SSRN


Paper statistics
Abstract Views: 3,448
Downloads: 270
Download Rank: 66,787
Footnotes:  260

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.407 seconds