William H. Simon is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving “bad legal advice.” To discourage lawyers from doing so, and to minimize the impact of lawyers' bad advice on third parties, Simon argues that lawyers should follow more rigorous standards of analysis, transparency, and accountability both when they give advice or expert testimony and when clients later use their legal work to influence others. He argues that legal academics practicing law should meet the most rigorous standards of all--including standards of transparency associated with the academy, not the legal profession*--and, further, that legal academics should regulate each other by “shaming” colleagues who practice badly. In the abstract and at a level of generality, Simon's theory is appealing because it promises to hold lawyers to a higher standard of care for the public good. The *1607 question, however, is how Simon's proposal at a level of particularity would play out in actual law practice. This Reply argues that Simon overstates the problem, understates the significance of existing disincentives to giving erroneous advice, and offers a solution that is difficult to implement and would do more harm than good.

 

Read the full article.