[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

point, a successor in interest, such as a bankruptcy trustee (or the receiver in ACC),
reassesses the entity’s best interests, with a view toward maximizing the funds available to
creditors and other stakeholders. ACC and Stratos illustrate how third-party investors who
lose money can make similar claims
The Problem with Instrumental Behavior
ACC and Stratos also illustrate that no lawyer or law firm is invulnerable to serious
allegations of complicity in client misconduct. In retrospect, what is so amazing about these
cases is that very well educated and talented lawyers could allow themselves to be used by
such clever and self-serving clients. 6 Of course, one explanation is always monetary: that a
lawyer or law firm’s ethics faded or failed in seeking a lucrative economic opportunity. 7
It is also possible that overidentification with a client might have been caused in part by
nonmonetary considerations, such as admiration for the extreme risk-taking of the
company’s managers. 8 Whatever the motivations, the role assumed by lawyers in these
situations enabled their clients to turn them into instruments of their wrongful conduct.
The law firms appear not only to have allowed but also to have invited the clients to treat
them instrumentally. In the process, the lawyers apparently lost some of their ability to
evaluate objectively their client’s conduct, and as a result, they were implicated in the
client’s wrongdoing. 9
Looking back, one might argue that a lack of moral integrity on the part of these
lawyers prevented them from recognizing dangers when they materialized. 10 While it is no
doubt true that lawyers need to listen to their own moral intuition, it also appears to be the
case that personal conscience can be significantly affected by implicit but often unexpressed
values in social milieus, including the moral world of both clients and law firms. 11 Perhaps
most at risk are law firms who represent lucrative clients engaged in significant risk-taking,
often in businesses that are heavily regulated by law. 12
The Cure for Instrumental Behavior
Professor Rhode warns that this kind of instrumental behavior is especially dangerous and
misplaced in representing entities rather than individuals, and in counseling clients rather
than litigating on their behalf. When a powerful enterprise’s, rather than an autonomous
individual’s, interests are at stake, the rights-based justification for role-differentiated
behavior has much less legitimacy. When lawyers counsel clients, Rhode echoes Judge
Bilby’s clear advice in ACC, pointing out that lawyers who deal with ongoing and future
behavior are provided with an opportunity and an obligation to prevent, rather than justify,
massive social and personal harm.
Lawyers can recognize these dangers of “serious regulatory violations” by setting up an
early warning system, which prompts them to assess both risky practice environments and
the strength of their own counter-intuitions. First, they should assess what level of risk
comes with the territory — from the client’s world as well as from the lawyer’s practice
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