Rule 1.2(d) is about to take center stage – be wary of playing the angles

The financial crisis is like the world’s largest sewer main break.  The stench is awful.  Traffic is backed up everywhere. People are angry and scared.  Suspicion is growing that the truth is worse than is being reported (Chernobyl).  Everyone is asking, “How could this have happened?  Who is responsible?”  In part the answer is simple:  It’s the fault of the smartest guys in the room playing “the angles.”  Angle is a scientific term. Scientists and mathematicians play with angles.  But “to play the angles” is a phrase used outside the lab.  Here, for example, is a headline from yesterday’s Wall Street Journal: Failed Lender Played Regulatory Angles – Red Flags Flew but Lamb’s Banks Kept Pouring Out Loans, Till They Collapsed

Some lawyers and law firms specialize in angles.  They know them all.  Heck, they make custom angles and advise clients how to play them. Some clients, the “greed is good crowd,” like to play the angles the way big rollers play craps. Come to think of it the smartest guys in the room on Wall Street now look like the world’s biggest gamblers who played with other people’s money while the federal government was out to lunch, or preening in front of the camera, or moralizing about family values, or was on a spending spree in Iraq – spending lives and money, other people’s live and other people’s money.  

Now, belatedly, there will be a frantic search for “those responsible.”  But many of those who bear responsibility are crafty.  They know that sometimes the best place to hide is in plain sight. Watch many of them lead the search party.  Sooner or later that search party – soon to become a mob – will haul a bunch of lawyers in for questioning in front of the court of public opinion. 

So lawyers representing financial institutions would do well to read Rule 1.2(a) and to hand copies out to everyone in their firms, including to members of the compensation committee, which is often a tough bunch to please.  If they seem pigheaded, it might be useful to mention the once venerable firm, Arthur Anderson. Here one day.  Gone the next. Puff.  They might also want to bear in mind the familiar but easily forgotten American Truth:  the cover-up is often worse than the crime. Representing clients hauled in for questioning in front of a truly and justifiably angry crowd, is a very difficult assignment, an important assignment.  To carry it out well, keep 1.2(a) in mind. Be sober and skeptical about helping clients play the angles.

Rule 1.2(d):

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.