Corporate Lawyers, Disloyalty, and the Opioid Crisis

Abstract

In creating the opioid crisis that ravaged America at the turn of the millennium, corporate lawyers were everywhere.  This Essay will tell three of their stories.  The first is of Howard Udell, the general counsel for Purdue Pharma.  Udell’s aggressive tactics paved the way for Purdue to flood the market with OxyContin.  The second is of the outside law firms who, from time to time, reviewed and approved a compliance program at AmerisourceBergen that minimized suspicious order reporting to the DEA.  The third is of Walmart’s current litigation counsel who, in shareholder litigation, have made such aggressive assertions of privilege that we may never know quite how Walmart failed to prevent its own massive compliance failures. 

There is a prevailing cultural narrative that lionizes zealous advocacy by a lawyer on behalf of their client.  Aspirational young lawyers are raised on stories of brave and selfless lawyers pursing justice on behalf of wronged clients.  But a posture that might be deemed “zealous advocacy” in the individual context—for example cooperating as little as possible with regulators—fails to take on the same moral valence when a corporation is a client.  When lawyers for corporations help their clients engage in misconduct that causes societal harm, we tend to call this “zealous advocacy” or an excess of loyalty.  Much of the professional responsibility scholarship assessing corporate legal misconduct offers an account of zealous advocacy run amok.

This Essay argues we have arrived at the wrong theoretical explanation for corporate lawyering in service of corporate misconduct.  Though corporate agents generate most of a corporation’s objectives, wants, and needs, positive law supplies the mandate of legal compliance.  Because corporate legal compliance is a mandatory objective of the firm, loyalty to the corporate client requires that the lawyer work in service of that objective.  To counsel a client in service of illegal, or perhaps even antisocial ends is disloyalty to the corporate client.

Using “zealous advocacy” framing to describe corporate lawyering in service of corporate misconduct forgets a fundamental component of the corporate client’s existence—its promise of obedience to the state.  We need to tell a new story, one that describes lawyers who aid and abet corporate misconduct as disloyal to that promise.  While this reframing certainly does not resolve the tensions inherent in representing a corporate entity, it can change the way we think, feel, and speak about corporate lawyers duties’ and the consequences of their failures.  In doing so, we can resist using heroic rhetoric to describe lawyerly acts of public harm and remind corporate lawyers of the promises their clients must make.  

Keywords: legal profession, corporate law, professional responsbility, ultra vires, opioid crisis, corporate compliance, corporate misconduct