Bad Agent, Good Citizen?

Abstract

Lawyers are agents for their principals — their clients. A good agent is a loyal agent. Lawyers also have professional obligations to the broader society. Even consistent with those obligations, and certainly in gray areas, whether they are being good agents or bad agents for their clients, lawyers can help — or harm — the broader society.

This raises the possibility that a lawyer working for a client may not just face a choice between what is best for her and her client but also between what is best for her client and society. Analyses of agents’ behavior normally focus on whether an agent is a good agent or a bad agent — whether or not an agent is faithfully pursuing the interests of her principal. But we should also consider whether a lawyer acting as a good agent is also promoting the public interest (i.e., a good citizen) or not (i.e., a bad citizen). Similarly, we should ask whether lawyers acting as bad agents are also harming society, or whether they may actually be promoting the public interest even though they are not promoting their clients’ interests.

Analyses and salient examples of bad agents involve bad (or at least neutral) citizens. These agents’ principal aim is to benefit themselves, whatever the effect on their clients (or, often, third parties). In this Article, we argue that there are “bad” agents, not fully serving their principals, who are doing good for society, and that criticism of such agents is misplaced. Nobody would use as a paradigmatic case of a bad agent a lawyer who counseled against her clients’ lawbreaking even though an irrefutable cost-benefit analysis indicated that the expected benefit to the client of doing so was enormously high. This suggests that the concept of good agent embeds at least some consideration of societal interest.

Keywords: Agency, Professional Responsibility, Legal Ethics, Principal/Agent, Corporate Social Responsibility

JEL Classification: D21, K20, L21, M14