Legal ethics losing out to bottom line
Comment of the Day

March 14 2012

Commentary by David Fuller

Legal ethics losing out to bottom line

This article by Andrew Ross Sorkin for the NYT and IHT discusses some of the conflicts that too often besmirch the financial industry. Here is the opening:
NEW ORLEANS- "We are all totally conflicted - get used to it."

That's what Robert A. Kindler, vice chairman of Morgan Stanley, boldly acknowledged here five years ago at an annual conference of the nation's top corporate attorneys who converge on the Big Easy every March to discuss the current state of deal-making and, yes, frequent double-dealing inside the boardrooms and executive suites of the Fortune 500.

It was a remarkably candid admission - and one that sadly, five years later, remains too true.

As I listened to dozens of the biggest-name legal consiglieri last week discuss a number of ripped-from-the-headline case studies about outrageous behavior by chief executives, directors and Wall Street investment banks caught up in self-dealing, blatant conflict of interests and other chicanery, a question occurred to me: Why do we so rarely blame the supposedly holier-than-thou lawyers?

Chief executives and bankers may make easy punching bags these days, but for every bad decision they make, there is often a lawyer who approves it - and most likely charges over $1,000 an hour for that brilliant advice.

Indeed, it increasingly seems that the lawyers aid and abet the bad behavior of the nation's corporations, providing them with the cover of legal advice - sometimes knowingly, sometimes not.

"I never thought to ask whether the lead banker owned shares in the other company," Victor I. Lewkow, a longtime lawyer and partner at Cleary Gottlieb Steen & Hamilton, acknowledged to a packed room matter-of-factly last Thursday, demonstrating the utter lack of checkpoints put in place during a typical merger negotiation by an often seven-figure legal team.

His somewhat shocking acknowledgment came amid a discussion about a top Goldman Sachs banker who was advising the target of a takeover, the El Paso Corporation. The banker owned about $340,000 worth of stock in the buyer, Kinder Morgan - an absolute no-no to anyone with a modicum of thought. It is also a violation of Goldman's own rules, which the firm acknowledged. (I wrote a column about this and other conflicts in that transaction last week.)

David Fuller's view This is not the first time that Fullermoney has commented on lamentable ethical standards within the financial community and it will not be the last.

The best way to curb this, in my opinion, is not with heavy handed regulation which penalises the honest majority, but to expose unethical practices in the mainstream media. Reputations matter and a history of questionable practices, to put it mildly, will eventually hurt the perpetrator's bottom line.


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