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Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer

55 Pages Posted: 12 Jun 2012  

Nancy Combs

William & Mary Law School

Date Written: 1994

Abstract

The Office of Thrift Supervision's (OTS) unprecedented enforcement action against Kaye, Scholer, Fierman, Hays and Handler (Kaye Scholer) prompted howls of protest from the legal community. OTS, it was claimed, was using its excessive power to redefine the role of the lawyer. This Comment confirms that OTS sought to impose duties on Kaye Scholer that conflict with professional ethics rules. The Comment then goes on to suggest that the conflict over professional responsibility in the Kaye Scholer case reflects, more fundamentally, a conflict over the role of the citizen, and the citizen's relationship with the state. Our adversarial system of dispute resolution is founded on our democratic assumption of citizen autonomy. Citizens are presumed to have independent interests and goals that the state must take into account when it regulates their activities. By contrast, OTS views the thrifts it regulates not as autonomous citizens but as instrumental means of achieving OTS goals. This Comment contends that it is this divergence in the concept of the citizen that gave rise in the Kaye Scholer case to the conflict regarding the appropriate role of the lawyer. The Comment concludes by exploring some normative questions raised by the OTS regulatory scheme.

Keywords: Legal ethics, professional responsibility, regulation of lawyers Office of Thrift Supervision, savings and loans, Kaye Scholer

Suggested Citation

Combs, Nancy, Understanding Kaye Scholer: The Autonomous Citizen, the Managed Subject and the Role of the Lawyer (1994). California Law Review, Vol. 52, No. 3, 1994; William & Mary Law School Research Paper No. 09-216. Available at SSRN: https://ssrn.com/abstract=2083202

Nancy Combs (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3830 (Phone)

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