Dirty Law-ndry

In it, Simon attempts to diagnose the circumstances under which well-credentialed lawyers and law professors are most apt to render implausible legal opinions – e.g., blessing screwy Enron deals, outlandish tax shelters, or the torture of detainees in the war on terror – and he offers some practical suggestions on how to curb the phenomenon.

He comes down particularly hard on several academic legal ethics experts, whom he suggests may be facilitating “pernicious” practices in the course of pursuing lucrative private practices as expert witnesses evaluating the conduct of other lawyers. Professors Geoffrey Hazard of the University of Pennsylvania Law School and Charles Wolfram of Cornell University Law School are prominent among Simon’s targets.

Simon’s piece, due out possibly by mid-June, according to an editor, will appear in Volume 60, Number 6, of the law review. Professor Bruce Green of Fordham School of Law – criticized for one opinion he rendered – will have a nearly 35,000-word response (twice the length of Simon’s article) in the same issue, and Simon will have a short reply.

A draft of Simon’s piece as it looked in December is still available in the SSRN library here; I don’t think I’m authorized to publish a more recent draft, Green’s draft response, or Simon’s draft reply, which Simon and Green permitted me to read in preparation of my article. When Simon’s draft article first appeared online last year, it provoked some discussion on the Legal Ethics Forum blog, catalogued here. 

Note for Scruggs-ologists: My article (or at least Simon’s) may have some added interest for Dickie Scruggs fanatics since Wolfram’s and Hazard’s names should be at least vaguely familiar to them. Hazard served as the Scruggs Katrina Group’s ethics expert when it unsuccessfully attempted to resist State Farm’s motion to disqualify it from hundreds of cases due to Scruggs’ alleged unethical conduct. Wolfram was State Farm’s expert.

In fairness to Hazard, his opinion defending Scruggs and his group was limited to defending their after-the-fact use of documents that may have been improperly obtained by their clients acting on their own. He did not purport to defend bribery of judges; “ear-wigging” of judges; hiring potential fact-witnesses as “consultants”; bullying the state insurance commissioner; bullying the state attorney general; or inducing clients and/or witnesses and/or employees to improperly obtain or photocopy confidential documents and/or gain access to a password-protected database – assuming, for the sake of argument, that any of those alleged activities may have actually occurred. See generally here.