There have been many periods in our nation’s history where serious and legitimate questions were raised about the effectiveness and integrity not only of corporate governance practices, but about the corporate bar itself, such as during the financial crisis.  With power and influence come corresponding responsibility.  At the turn of the 19th into the 20th century, figures like Elihu Root and Louis Brandeis advocated for corporate lawyers to counsel America’s burgeoning large corporations to conduct themselves in a law-abiding manner.  In the wake of the market-shaking frauds associated with the savings and loan crisis in the 1980s and companies like Enron and Worldcom around the turn of this century, the legal profession came under close scrutiny again.  The same was true when it came to light that law firms had helped tobacco and other companies develop approaches to shield the harmful impact of their products from public disclosure.

But this moment is different for a fundamental and disturbing reason.  In prior moments, the assumption was that those charged with enforcing the law in an even-handed manner were committed to doing so in good faith.  The questions in prior moments were whether corporations and their legal advisors were taking advantage of the inevitable inability of regulators to catch every violation or to update regulations rapidly enough to address new innovations in areas like finance that hazarded fraud and financial failure.  That is, it could mostly be taken for granted that the government, regardless of which party was in charge, would in the large main be true to the enacted laws of the nation and apply them in a fair, non- retributive, non-discriminatory way. (more…)