After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer

Abstract

The legal profession has yet to deal with important challenges to the traditional image and practice of business lawyering raised by recent financial reporting and tax shelter scandals. Two issues are particularly important. The first is formalism - the doctrine that only the literal terms and not the underlying purpose of the law are binding. The second is managerialism - the doctrine that conflates the interests of the corporation with those of its managers. This essay argues that a plausible ethic of business lawyering requires a more thoroughgoing rejection of these doctrines than the bar has yet considered. It also suggests that the bar's current preoccupation with corporate confidentiality is misguided.