Ethics

Anthony Alfieri replies to Anthony Davis on the sufficiency of risk management for ethical guidance.  (Fwiw, I don't read Davis as claiming that the technical aspects of modern risk management are enough, by themselves, to promote an ethical life but rather are "complementary" to ethical concerns, and I therefore think that Alfieri attacks something of a straw man.)  Article here.  Abstract:

 This essay will examine the impact of risk management norms and practices on lawyer integrity under contemporary models of large law firm economics. In a prior work, I argued that the widespread adoption of risk management mechanisms diminishes the appreciation of the moral choices facing lawyers in practice and the other-regarding obligations of lawyers in society. Drawing on the work of Milton Regan and William Simon I maintained that the technology of risk assessment and regulation discounts the daily necessity of moral discretion and the calling of public obligation. As a result, I asserted, lawyers and law firms underestimate the burdens of moral agency in the discretionary decision-making of advocacy and counseling. Equally important, I added, they neglect the duties of social responsibility to clients, third parties, and the public and, thus, discard the highest ambitions of professionalism displayed in traditions of independence, service, and trust.

 In a powerful rebuttal, Anthony Davis contends that risk management actually enhances individual ethical deliberation. Davis argues that risk management institutionalizes ethical values and gives them concrete technical form. Indeed, he discerns a complementary relationship between the goals and the mechanics of risk management and the principles of legal ethics and professionalism. On this collaborative view, risk management educates, supports, and reinforces ethical decision-making on individual and institutional levels.

The purpose of this renewed inquiry is to test Davis?s ?collaborative? thesis in the context of the large law firm legal services industry. To that end, the essay will reconsider the 1997 federal criminal prosecution of John Gellene, a former partner at the Wall Street law firm of Milbank, Tweed, Hadley & McCloy (?Milbank?), in order to assess the impact of risk management norms and practices on lawyer and law firm ethical integrity and aspiration. The Essay is divided into three parts. Part I revisits my prior critique of risk management norms and practices in lawyer regulation and law firm organization. Part II mounts a defense of risk management norms and practices culled from Davis?s writings. Part III considers norms of integrity carved from David Luban?s body of work on the legal profession.