Tuesday, 27 April 2010

Lawyers in Practice: Ethical Decision Making in Context at the Baldy Center, University at Buffalo

(Origami buffalo thanks to ORI_Q)
I got back from Buffalo, New York, yesterday as my plane flew out being chased by lightning and thunder storms that were the tail edge of the tornadoes raging over the US.

My reason for being at the Baldy Center, University at Buffalo Law School, was because I had been invited to contribute a paper on transnational lawyering by Lynn Mather and Leslie Levin. The conference had the aim of: examining:
How do lawyers resolve ethical problems in the everyday context of law practice? What issues commonly emerge in different practice specialties and what are the norms and rules for resolving them? This is the first conference that focuses on the empirical research on lawyers' work and their actual decision making in a wide variety of practice contexts.
Participants will examine the work of lawyers in a number of practice areas, identifying one or more ethical issues that arise in the practice area. Scholars will present their research, embedding lawyers' decision making in both the professional world of ethical codes and the social and economic setting of the workplace.
It was an intensive day including papers on solo or small firm lawyers:
  • plaintiffs' lawyers--professional norms and the need to generate business
  • divorce lawyers--client grievances and client relationships
  • immigration lawyers--the lying client
While these presentations often involved cases of personal challenges, the next session moved to a seemingly more remote sphere of the corporate practice. Papers included:
  • practice groups in large law firms--embedded ethics in practice groups
  • corporate litigators--ethics in discovery
  • In-House lawyers--ethics and allegiances
  • Transnational lawyers--conflicts and identification of client
The organizational context was further explored with reference to specialist lawyers:
  • tax lawyers--clients' interests or moral stewardship?
  • securities lawyers--guardians of the public realm?
  • patent lawyers--changing roles in defensive patent applications
Finally, we looked at public interest lawyers:
  • legal services lawyers--in context of social work
  • ethics of law reform lawyering--top down or bottom up?
You can read the abstracts of the papers on the Baldy website. The presentations contained a wide variety of empirical and theoretical approaches including ethnography, interviewing, statistical analysis, philosophical investigation among others. Theoretically, the papers considered the problems of attempting to capture the nature of lawyer-client relationships in shifting contexts; how do so many different types of lawyer fit within under the umbrella of the "legal profession"? what did it mean to talk in terms of a legal profession? how were ethics and regulation being balanced against each other? and how did this operate in a globalized world?

Plenty of questions and issues. We now are redrafting our papers we hope in a more integrated way that will work in the collection. We want this book to be of benefit to students as well as fellow academics and lawyers. Students often find their professional responsibility classes bear little resemblance to practice. This is a serious attempt to bring the dilemmas of practice to the student who can begin to comprehend the complexities of modern legal practice in its variety of forms.


I had an extra day in Buffalo so my hosts, Lynn and Mike Mather, took me to see Niagara Falls. We get blase about the wonders of the world because of our constant exposure to them. I've made this mistake before in connection with the pyramids at Giza and the Taj Mahal. I almost made it again.

The Falls are big and very noisy. But as you approach them you hardly notice they are there. It's only when you look at them head on you see the long drop, the relentless pressure of water being squeezed into a smaller gap, and the mist that nearly obscures everything.

 (I never saw the owner of the shoe...)

I hadn't realized there were two sets of falls. And that you can take a boat trip around them. It's very wet as you can see from the blue people. Their raincoats are wishful thinking.

This is the second falls.

Standing below this makes me wonder who first went over by mistake...and what they were thinking.

And here are my hosts, Lynn and Mike Mather.

They took me around Buffalo itself which has some terrific architecture, especially from the time of Louis Sullivan. (See his Prudential Building.) Chicagoans will know what I mean. Sitting on the edge of Lake Erie it has at times a coastal feel which is heightened when you can drive across the border to Canada next door.

Tuesday, 20 April 2010

Philosophical Foundations of Law and Finance - 50th Weekly Meeting

Dear all

To mark the 50th session of the Philosophical Foundations of Law and Finance, to be held on Friday 23 April 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster), we will tackle with the uncanny theme: "Fraud in The Heart of Finance and Religion"

We will focus on a recent filing by the US Securities Exchange Commission against Goldman Sachs and a 28 year vice-president named Fabrice Tourre for securities fraud.

Although we never ask participants to prepare for class, you may be curious to read the complaint: http://www.sec.gov/litigation/complaints/2010/comp21489.pdf
We also recommend Kevin M. LaCroix blog: http://www.dandodiary.com/2010/04/articles/subprime-litigation/ok-so-the-sec-sued-goldman-sachs-now-what/
Good legal analysis can be found at: http://dealbook.blogs.nytimes.com/2010/04/16/goldman-fraud-case-holds-risks-for-both-sides/

We will attempt to read the complaint together and comprehend a bit of US securities law. If we have time or depending on the inclination of the group, we shall then turn to the Grand Inquisitor, the 26-page classic within the Brothers Karamazov by Dostoevsky. You can find an extract at http://www.online-literature.com/dostoevsky/2884/

The most zealous and frequent attendees to the Philosophical Foundations of Law and Finance may be surprised to see how group theory applies to "Fraud in The Heart of Finance and Religion": homomorphism, epimorphism, monomorphism and isomorphism will be defined and used for purposes of abstracting comparisons. (It's all in the mapping of Mx.) In a system of law, why is truth isomorphic to fraud? Only a group theory can bring them together rigorously without sounding sanctimoniously Kantian. Also, we will again emphasize the perception of seeing "devils and and angels" simultaneously everywhere for any given decision at a given time.

We shall celebrate our 50th at Vapiano (19-21 Great Portland Street, W1W 8QB) from 8pm onwards.

See you on Friday!
Joe and Laura

The Law Firm Has Defaulted on Its Bonds?

Anthony E. Davis of Hinshaw and Culbertson LLP in New York sent me details of the $125 million bond issue by Dewey and LeBoeuf, which is over-subscribed. Now in the US there is nothing like the Legal Services Act 2007 that enables external investment in law firms. In fact the professional rules expressly prohibit non-lawyers having an interest in a law firm.

Anthony then asked: "Can somebody explain to me why this is different (or should be differently regulated) from raising equity capital?" (ie. as envisaged in the Legal Services Act.)

Well, I suppose the obvious answer is there's no equity. But that's not satisfactory. Imagine if the firm defaulted and had to be restructured. Who would own what, then? Would there be a debt-for-equity swap? Hardly.

The bondholders must be very confident. But then only a handful of firms have gone bankrupt...recently.

I think Anthony is right, Dewey and LeBoef has put itself in hock to outsiders. But as one colleague has said, "Debt be debt and equity be equity. Would it be any different if a firm defaulted on a loan?"

Monday, 19 April 2010

From Ethics to Regulation

(Thanks to daniele esposito for computer ethics graphic)

I like the "Catholic PC" in the sketch. I wonder how ethical it really is?

I have put a new paper on SSRN.com titled, "From Ethics to Regulation: The Re-Organization and Re-Professionalization of Large Law Firms in the 21st Century".

The abstract reads: The recent history of the legal profession is presented as one where the re-regulation of the profession, as epitomized in the Legal Services Act 2007, has placed the large law firm at the centre as a site of regulation in its own right. The legal profession has redefined its professional character from that of autonomous producers to employed lawyers who now exercise discretion within tightly constrained corporate limits. This is paralleled by the move away from individualistic codes of conduct towards entity-based regulation.
Keywords: ethics, regulation, Legal Services Act, large law firms.

I would appreciate any comments.


Thursday, 15 April 2010

Philosophical Foundations of Law and Finance - 49th Weekly Meeting - CHANGE OF TOPIC

Dear all

We learn that unfortunately Mr Axenov will not be able to give his talk as he could not obtain the visa. While hoping that he will visit us in the near future we revert to Descartes.

At the 49th session of the Philosophical Foundations of Law and Finance on Friday 16 April 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster), we will read further from the Discourse on Method (http://records.viu.ca/~johnstoi/descartes/descartes1.htm ) with Joe’s insight: “The Cogito is Entirely Impersonal”.

Descartes' meta-method outside inventing analytical geometry is to provide us with a via negativa. We eliminate the implausible, the impossible, and the uncertain, and look for that which we cannot deny. We can deny our schooling, our teachers, books, cultures, chat and cant but this effort of elimination cannot itself be denied. The cogito ergo sum ("I think therefore I am") is not a positive statement about the being (Dasein) but a reflection on the noninvertibility of the pattern of thought, which cannot itself be denied. It is a statement of three compact assertions: (1) the personal act of thinking, (2) the assertion of personal being, and (3) the assertion of the linkage between the act of thinking and the sense of personal being. This holy trinity of assertions is unmeaningful to those who have not themselves undertaken the process of elimination--to strip naked and pay back all that is borrowed. What we have left after the process, after the method, is the austere design. Is this the trivial equivalence--the obvious given duality of mind and body--or is this a version of the surprising "many is one" argument? That the List of infinite particular thoughts are equivalent to one Property of existence? As we have said before such rationalistic analytical assertions are better read as hypotheticals of what we could be. The cogito is not about you in the particular--it is about what cannot be denied about you without denying the existence in the particular that is you.

At 8pm we – bodies, minds, many in one, whatever you think – will aim to Vapiano (19-21 Great Portland Street, W1W 8QB)

See you on Friday!
Joe and Laura

Wednesday, 14 April 2010

Philosophical Foundations of Law and Finance - 49th Weekly Meeting

Dear all

The 49th session of the Philosophical Foundations of Law and Finance, on Friday 16 April 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster) will receive a guest from New York.

Igor Axenov will present the talk “Wall Street?” discussing the financial system and the economy one year after the trough. Mr Axenov is a Market Risk Manager at Barclays Capital, NY, overseeing CDOs – probably one of the most important financial derivatives in the last 20 years and one of the main culprits in the credit crash.

You are all warmly invited to the event and to share food and drinks at Vapiano (19-21 Great Portland Street, W1W 8QB), from 8pm onwards.

See you on Friday!
Joe and Laura

Sunday, 11 April 2010

Why Europeans don’t like collective investments all that much?

Have you ever wondered why 1/3 of the U.S. population are mutual fund investors? According to the Investment Company Institute’s data at the end of 2008, U.S. mutual funds managed $10 trillion for 93 million U.S. investors. Putting the numbers in perspective, the entire population of Germany, the most populated European country, is just under 82 million, while France has 65.4 million living on its territories.

Are there cultural or legal impediments for a broader acceptance of collective investments in Europe? With this research question I turned to Rudolf Siebel, Managing Director of the BVI, the German Investment and Asset Management Association. BVI represents 75 members, the Kapitalanlagegesellschaften and Asset Managers, with more than €950 billion in assets under management.

According to Rudolf, securities business in Europe is not intermediated, but mostly associated with banking. Therefore, European investment managers do not have to offer a cash product to their clients along with equity or fixed-income investment options, because uninvested cash balances are kept by the sponsoring bank. Before the Glass-Steagall Act was lifted in the U.S., fund managers have had to place clients’ cash in a bank. Each time a fund investor sold shares of a bond or equity fund, the asset manager would lose money to a bank. When money market funds came about, they were embraced by asset managers as a way to keep all cash in house. Accidentally, in 1970s - 1980s, which was a period of high inflation in the U.S., interest rates on bank deposits were regulated. Money market funds offered much higher market interest rates and attracted hoards of retail investors. Money market funds introduced a few generations to mutual fund investing fueling the growth of U.S. middle class.

At our seminar on Wednesday, April 14th, I’ll talk about nailing down my research question(s) and more generally about a super-important step of putting together an MPhil/PhD Transfer application. A wise PhD Candidate strives to learn from a painful experience of others!

Find my presentation slides titled 'Financial Regulation and Development of Financial Products: a Case for Money Market Funds' at my page:

I hope to see you all on Wednesday!


Proceedings from the 48th meeting (9 April) of the Philiosophical Foundations of Law and Finance

Dear all

Follow the proceedings from Friday 9 April meeting of the Philosophical Foundations of Law and Finance: "Prescribing a Goal for Physical Science”.

1. At the 48th session of Philosophical Foundations of Law and Finance, we continued to read out loud and comment on Descartes' Discourse on Method.

2. The meetings are a rare opportunity to read together outstanding texts and have a jolly about wherever they take us.

3. 12 people attended, of which 7 PhD candidates and 4 Masters students.

4. We discussed how Descartes' introduction to the Discourse on Method could be seen in terms of a strategic marketing matrix where the essential four propositions are: (1) "I = You" Identification; (2) "Believe me" Authoritative; (3) "Participate in my image" Iconic; and (4) "Let's explore together" Adventure.

5. We agreed Descartes is substantively definitely not Iconic, but a bit of (1), (4) and then (2).

6. We also reviewed a recent metaphysical argument of what must be the goal of physical sciences. We don't have a name for this argument and, provisionally, Joe dubs it the "Uniqueness Theorem".

7. The Uniqueness Theorem (informally) goes like this: (1) Everywhere we observe around us things (a,b) combine to form other unique things (ab); (2) if (1) is assumed true then there is nothing to prevent us from imagining this state of affairs all the way back to the very beginning of any and all things; (3) similarly, nothing prevents us from imagining the same state of affairs to the very end of things; (4) note that (1) to (3) can be translated to say that each and every thing that ever was, is and will be have unique identification (eg, imagine each thing having a "bar code"); and (5) since (4) is entirely metaphysical (that is, non-physical and hypothetical), the goal of physical science is to prove the physicality of (4).

8. Not only does the Uniqueness Theorem tell us what science "must do" it also helps us understand the nature of value and money in the broadest metaphysical sense.

9. For example, Picasso was once asked by an art dealer, "Do you ever worry about money?" Picasso then took the art dealer's serviette (napkin), signed it and handed it back to the man, saying, "Now, get some money."

10. Joe also thinks the Uniqueness Theorem has applications in human rights and the development of cooking, but these matters will come in other notes or through the good works of students practicing their culinary arts on this most willing experimental subject.

See you next Friday!
Best, Joe and Laura

Thursday, 8 April 2010

Prosecuting War Crimes in the UK

Marco Roscini was interviewed on the government's intention to restrict prosecution in the UK for war crimes committed abroad by Diversity FM. The interview was based on an article written by Gordon Brown in the Daily Telegraph.

You can download and listen to the recording here.

Philosophical Foundations of Law and Finance - 48th Weekly Meeting

Dear all

You are invited to the 48th gathering of the Philosophical Foundations of Law and Finance on Friday 9 April 2010, from 6.00 to 8.00pm, in room 5.16, 309 Regent Street (University of Westminster).

After the Easter break we resume our seminars in the best tradition analysing philosophically some current events of law and finance.

The agenda is as follows:

1. Can we regulate complex financial instruments? How about asset-backed securities? We will read the article by Hughes: “US lenders face crucial reforms”, published on 7 April on the FT (see http://link.ft.com/r/A1TNOO/A7X3UO/FK57F/RNGOAO/YHGAV7/FW/h). Noteworthy, the US SEC has proposed major changes to Regulation AB governing the disclosures on asset-backed securities prospectuses: http://www.sec.gov/rules/proposed/2010/33-9117.pdf

2. We will continue the analysis of Descartes' Discourse on Method (http://records.viu.ca/~johnstoi/descartes/descartes1.htm)

I take the freedom to remind you that Joe is probably as erudite in securitisation (http://www.amazon.co.uk/Securitisation-Law-EU-Disclosure-Regulations/dp/product-description/1405734485) as he is in philosophy. Thus be ready to get in-depth for a critical thought about finance and rationalism, metaphysics, sentiments, spirits…

We will re-emerge from 8pm onwards heading to Vapiano (19-21 Great Portland Street, W1W 8QB) for food and drinks.

See you on Friday!

Joe and Laura