The concept of civil society has once again emerged as a viable mechanism for developing and sustaining deliberative democracy. However, an essential component of many strategies to sustain civil society appears lacking, especially when we see the growing cynicism and apathy among citizens. What is missing is a strategy for training or encouraging citizens to participate more fully in civil society. The skills of advocacy can, at least in part, help renew civic activism. Thus, the role of advocacy will be explored as a potential way to resuscitate civil society.

The Role of Advocacy in Civil Society

Reforms in Corporate Governance around the world have focussed primarily on the strengthening of independent directors, introduction of audit committees and reforms concerning the audit profession. However, the securities lawyers and commercial law firms who advised the fallen corporations have overwhelmingly avoided the spotlight despite the fact that some of the top-tier firms were involved in allegedly criminal or at least, from a legal perspective, highly risky transactions. This article tries to explore to what extent the securities attorney can or should serve as a gatekeeper with ‘guardian-like responsibilities to investors who rely upon the disclosures [and transactions] that the securities attorney typically prepares or at least reviews.’ The spotlight will be on the question of whether corporate lawyers, particularly securities lawyers, should blow the whistle in cases of suspected financial fraud, i.e. reporting (potential) illegal or illegitimate practices of the client’s employees and management either up to higher authorities within the corporation or as a last resort to regulatory bodies outside the corporation.

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The Lawyer as Gatekeeper: Is There a Need for a Whistleblowing Securities Lawyer? Recent Developments in the US and Australia

State ethics codes based on the ABA Model Rules of Professional Conduct address lawyers’ work in advocacy but do not target lawyers’ work in particular areas of advocacy or in other specialized practice areas. For more than forty years, critics have asserted that existing ethics rules are too superficial and should be supplemented by specialized rules. This article examines the utility of specialized ethics rules for one particular sub-specialty — death-penalty defense practice. After identifying arguments for and against a specialized ethics code for death-penalty cases, the article analyzes the arguments in the context of a particular ethics dilemma that some death-penalty defense lawyers have encountered — namely, whether to pursue post-conviction relief on behalf of an ambivalent or unexpressive mentally-ill death-row inmate. The article finds persuasive reasons for courts to develop specialized rules that would provide death-penalty defense lawyers more clarity in how to address this and other ethics dilemmas. Recognizing that courts will likely remain indifferent to the idea of developing specialized ethics rules, however, the article concludes by identifying other ways for courts to mitigate the uncertainties that specialized rules would address.

Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers?

The law of agency has governed American lawyers since before the Revolution, but recent scholarship about legal ethics and professional role almost entirely ignores it. Most commentators would concede that attorneys are agents, but would quickly add that the lawyer is also an \"officer of the court\" who has obligations to seek justice. However, analysis of the phrase \"officer of the court\" reveals that it has surprisingly little content; it is mostly rhetoric, caused by self-love and self-promotion. What little content it has points to a role of the attorney as agent whose obligations to the court are almost identical to those owed by non-lawyers and almost entirely consistent with duties to clients. By largely ignoring agency law, and failing to throughly examine the attorney's role as an \"officer of the court,\" commentators have mistakenly grounded wide ranging arguments that lawyers must seek \"justice\" because they are officers of the court who have a special obligation to seek justice. Indeed, they argue that the lawyer's duty to seek justice is superior to the obligation of loyalty and zealous advocacy on behalf of the client. In their view, there are situations in which the lawyer's duty as an \"officer of the court\" empowers her to disobey the client's lawful instructions because following them would not promote

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James A. Cohen

Papers

Lawyer Role, Agency Law, and the Characterization Officer of the Court