Washburn Law Journal
Editor's Note
Volume 46, No. 1 (Fall 2006)
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The recent collapses of Enron and other major corporations have raised a number of concerns for attorneys in their representation of corporate clients. Professor Marc I. Steinberg addressed some of these concerns in the 2006 Foulston Siefkin Lecture at Washburn University School of Law. In his related article, The Corporate/Securities Attorney as a "Moving Target" — Client Fraud Dilemmas, Professor Steinberg examines standards for professional conduct in situations where a corporate/securities attorney is faced with potential client fraud. He contends that some situations will require the attorney's withdrawal from representation, but that "quiet" withdrawal will not always be adequate to protect the attorney or the corporation from liability. Noting the potentially significant impacts that may result from a "noisy" withdrawal, however, Professor Steinberg ultimately recommends that attorneys more frequently seek a neutral "second opinion" before deciding to "blow the whistle" on client fraud.
A number of articles respond to, and elaborate on, Professor Steinberg's observations. In her article, Fraud is the Moving Target, Not Corporate Securities Attorneys: The Market Relevance of Firing Before Being Fired Upon and Not Being "Shocked, Shocked" That Fraud is Going On, Professor Marianne M. Jennings argues that the "to disclose or not to disclose" debate ignores a broader question regarding attorneys' ethical responsibilities. She contends that lawyers often turn a blind eye to ongoing fraud and that proper solutions require the "development of lawyerly moral compasses and individual certitude in drawing lines for clients as a fraud evolves." In Reflections Upon SEC Standards of Professional Conduct, Professor Harvey Gelb discusses interpretive difficulties in the Sarbanes-Oxley Act and related SEC rules. He ultimately determines that SEC Rules implementing section 307 may need modification to avoid harming attorney-client relations. Additionally, Professor Barbara Black, in Tattlers and Trail Blazers: Attorneys' Liability for Clients' Fraud, examines private claims for damages against attorneys' who participate in the fraudulent activities of their clients, concluding that courts are unlikely to impose liability. Arguing that recent trends indicate the possibility of a "viable private right of action" against lawyers, however, Dean Michael J. Kaufman, in Nationalizing Ethical Standards for Securities Lawyers, posits that several federal courts have "come close" to creating a federal common law cause of action and that these decisions are part of an increasing "nationalization trend" in the area of securities law. Finally, in Non-SEC Whistle-Blowing Obligations of Lawyers Who Represent Organizations, Professor John Burman analyzes the Kansas Rules of Professional Conduct with the goal of informing lawyers what non-SEC obligations they have under the Kansas rules.
In a departure from the corporate law themes in the above-mentioned articles, this issue also contains an interesting and provocative essay from Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit. In his essay, Judge Posner offers a number of criticisms of law reviews, highlighting "horror stories" of faculty/law review interactions. He offers options for reform, including a shift away from "hot" topics and an increase in faculty involvement in the editorial process. The essay arose from an address given at the 2006 National Conference of Law Reviews. The Washburn Law Journal thought that offering Judge Posner an opportunity to publish with minimal editorial interference would be an interesting experiment, and, while not necessarily agreeing with all of the views expressed in his piece, thought that it would provide a valuable contribution to the ongoing discussion regarding the role and purpose of law reviews.
This issue is concluded with a variety of student-written submissions. In her note, He Said, She Said: Diverging Views in the Emerging Field of Fathers' Rights, Bryn Anne Poland surveys the landscape of litigation on behalf of unwed fathers and concludes that while fathers are entitled to some protections, the privacy interests of a mother trump fathers' concerns in other areas. Matthew B. Todd, in Avoiding Judicial In-Activism: The Use of Legislative History to Determine Legislative Intent in Statutory Interpretation, argues that courts' failures to evaluate legislative history amount to impermissible "judicial in-activism" by refusing to seek the will of the legislature and therefore placing a judge's desires above the will of the democratically-elected branches of government. In his comment, Dan E. Lawrence argues that the United States Court of Appeals for the Seventh Circuit's recent interpretation of "transmission" in the Computer Fraud and Abuse Act risks a substantial extension of liability to a large class of actors outside Congress's intended scope. Finally, Justin Whitney argues that the Kansas Supreme Court recently lowered the standards for attorneys who draft trust agreements, risking a significant loss of rights on the part of trust beneficiaries.
M.J.S.
