…Maybe you should find out more about them than they are willing to tell you
Corporate law firm recruiters will tell you about the different departments of specialized practice – such as mergers and acquisitions, trusts and estates, regulatory practice, criminal defense, taxation, environmental, health care, trade, commercial, intellectual property, real estate and the like. But these descriptions do not introduce you to the kind of corporate clients, to whom you ostensibly owe a duty of zealous representation, and the demands these clients will make.
In the past, your predecessors, whether through desire or because of student debt, defended longstanding or episodic abuses and crimes. What you are expected to do, for a lucrative retainer, is to preserve and expand the privileges and immunities of these large corporations, their profiteering and drives toward greater control, concentrated power, executive pay packages, and protection or escape from law enforcement. You might also be asked to draft and lobby amendments into permissive law to achieve these objectives.
Decade after decade, teams of corporate lawyers have fought for the tobacco, drug, chemical, banking, insurance, nuclear, coal, oil, and hospital industries in direct conflict with consumer, worker and environmental health and safety. The billings are impressively large with mostly uncontested padding or fraud. Under the cover of “every client deserves a lawyer,” the extraordinary lengths these attorneys go to in fealty to national or global corporations receive almost no media or governmental scrutiny. That people are dying, being injured, sickened or defrauded, before and after private or public legal actions are instituted, provides little or no sense of remorse by these law firms. Protecting people is not usually considered their professional or moral responsibility, especially in an adversarial system in which corporate interests have all the advantages. They have perfected the gaming of the adversary system, should there be one, through deliberate wars of attrition, overwhelmingly superior resources and the fact that for aggrieved plaintiffs with bills to pay, time is more of the essence than it is for an artificial corporate entity and its deductible legal expenses.
Corporations, with few exceptions, are pitted against consumers, workers, small taxpayers and communities, and corporations have the upper hand.
We have seen patients, workers and children die waiting for the deliberately protracted proceedings of litigation or legislation or regulatory agency action. Delay is a long-standing specialty of corporate attorneys. Consider the victims of asbestos poisoning, of disease-festering chemicals and particulates in the workplaces – the factories, foundries, mines and industrial agricultural fields.
Here are some architectural achievements of these corporate law firms deploying undue power against the polity and general public. They:
- Destroyed the freedom of contracts by an inscrutable structure of adhesion or standard-form contracts that kick in at a click or a signature, often taking away people’s rights to their day in court. Consumers cannot usually obtain the full contract to which they are bound and if they can, the text is often incomprehensible and often too small to read – assuming there is any time.
- Perpetuated the worst health insurance chaos in the western world, full of trap doors, deductibles, co-pays, waivers and exclusions – all to the corporations’ advantage.
- Repeatedly structured markets to be less competitive and more monopolistic and strip shareholders of any power to control what they own.
- Held down law enforcement budgets of agencies that are supposed to pursue civil and criminal actions against corporate crimes and other predations. This is widely true for the misbehavior of the weapons of mass destruction industry and its relations with the Pentagon.
- Made sure that many health and safety laws do not have a criminal penalty for willful and knowing violations of the law, while freezing obsolete civil fine levels.
- Utilized deferred and non-prosecution agreements, originally designed for individuals, as a way to defang successful prosecution of corporate crime.
- Arranged for continual installment of corporate lawyers in the nation’s federal and state judiciary.
- Restricted access to justice by lobbying legislatures to enact limitations on the law of torts, jury autonomy and by establishing judicial procedures that obstruct the pursuit of justice.
- Expanded systems of corporate welfare or crony capitalism, “garnished by directed campaign contributions,” without open procedures and regular reviews.
- Expanded massive government outsourcing and procurement systems that enable waste, minimum competition and exaggerated claims of proprietary information which restrict review and reform.
- Conceived and encouraged ever more permissive tax havens around the world to evade or avoid taxes for the wealthy and corporations.
- Created modes of corporate coercion via credit and debit cards and other payment systems for a cashless economy that constructs webs of incarceration around consumers through adhesion contracts, privacy invasions and other deliberate manipulations, dictates, and unresponsiveness.
- Molded a patent system that crushes individual inventors in favor of corporate patent controls dubiously extended to reduce competition and increase consumer prices, as in the drug industry.
- Perfected “document retention” strategies to destroy evidence in anticipation of forthcoming law enforcement.
- Stifled free speech and citizen criticisms of corporate power by filing or threatening SLAPP (strategic lawsuits against public participation) suits that produce large penumbras of civic fear, intimidation, and self-censorship.
- Provided the intellectual grease and political muscle to facilitate giant anticompetitive mergers when challenged by antitrust authorities.
- Designed massive executive compensation packages, marinated by huge unproductive stock buybacks that harm workers, pension funds, disempower shareholders, and deplete the overall investment practices of the affected corporations.
- Shielded and defended the excesses of Wall Street and its far flung speculations with other people’s money, as occurred in 2008 and 2009. Where were the corporate lawyers to detect, foresee and forestall? They were paid to look the other way and profit from their past installations of immunities, impunities, and cover ups (See: https://hlrecord.org/2018/04/is-law-still-an-honorable-profession/).
- Dominated bar associations with their funding and priorities to assure that corporate interests are first and foremost, sometimes with a modest nod to legal aid for poor, accused defendants.
- Shielded tumultuous new technologies such as biotechnology and nanotechnology and artificial intelligence from legal and ethical frameworks and accountability.
- Become the legal spearheads of avaricious state lobbies such as ALEC, funded in part by the Koch brothers, to weaken or repeal safeguards for consumers, workers, patients and the environment.
- Elaborated corporate bankruptcy laws that now stand as a cruel double standard between the corporation and the individual. The GM bankruptcy and the emergence of the old GM and the “new GM” lacerated the rights of creditors and vaporized cases by injured litigants is an advanced case of this lawyerly imagination.
- Utilized corporate lawyers to fight against group legal services and controlled town government where there were large corporate employers such as those in Butte, Montana, the paper mill company towns in Maine and textile companies in the Piedmont. They work to strategize, mature, and entrench the autocratic corporate state, illustrated by President Eisenhower’s farewell warning about the “military industrial complex.”
- Imposed a weakened system of frozen workers’ compensation insurance to limit the liability of corporations to their injured workers.
- Lobbied for decades to prevent single payer, more efficient national health insurance to cover all.
- Perfected a revolving-door system so that corporate lawyers can go into public service – weakly enforce the law for a few years to gain “experience” – and then come back out to continue representing corporations at much higher pay.
- Tolerated a criminal justice system where corporate crime is immunized, poverty is criminalized, and the indigents charged paralyzing fees to boot.
- Replaced judicially supervised probation officers for corporate criminals with corporate monitors – approved of and paid for by the corporate criminals.
- Helped set up corporate front groups – groups whose names sound like public interest groups, but that are in fact funded and controlled by corporations.
- Created the nation’s most powerful civil rights movement – the movement for corporate civil rights – putting the corporation – never mentioned in the U.S. Constitution – on par with living breathing human beings when it comes civil rights protections.
- Advocated and perpetuate a neither admit nor deny settlement practice at the SEC that lets wrongdoers off without even admitting their wrongdoing.
- Split the ownership from control over our public resources and hand control over to corporations and their government concessionaires. Surprising to many, the greatest wealth in our country comprises the “commons” or pooled assets that are owned by or in clear trust on behalf of the people (see bollier.org/). They include the vast public lands onshore and offshore, the public airwaves, the trillions of dollars in government research and development that built or expanded many of the old and new industries in our country. They attach to the trillions of dollars in pension and mutual funds. The sheer intricacy and diversity of such splintering of publically owned resources is testimony to the intellectual adventures that firms have used to attract law school graduates looking for rigor and challenge.
This partial list should not be concluded without mentioning the constant work of corporate law firms to arrange, advice, and defend measures that suppress voters and candidates in the electoral arenas, unlike, by far, any other western nation.
Of course, much corporate law firm work is the tedious handling of conventional commercial transactions, estate planning and the like. There is, of course, the option to work on behalf of mid-sized smaller companies who do good work, such as Patagonia, Esprit and the Interface Corporation and other companies, often still run by their founders that belong to the Social Venture Network (http://svn.org/). But the big money comes from the big corporate law firms representing the giant corporations. That is the lure, the temptation that requires further examination.
A major transition to further concentrated corporate power over individuals and other institutions, such as labor unions, makes up the long-range activities of corporate attorneys, with the help of some law professors. That mission started with the concept of limited liability for shareholders (as with the early 18th century charters for textile companies in New England) to relentless expansion of limited liabilities for the corporate entities themselves. These shields are often enabled by statutory limits on liability, as with the nuclear power companies through the Price Anderson Act, to the judicially recognized privileges and immunities promoted by corporate counsel. This includes corporate personhood for use of civil rights, civil liberties, and other constitutional rights/remedies originally enacted for the protection of individuals. To repeat “corporations” or “companies” are not mentioned in the Constitution.
Another creation of corporate law firms relates to restricting the private rights/remedies of aggrieved individuals vis-à-vis corporate predations. There are the many “tort deforms” such as caps on damages in medical malpractice lawsuits that further imbalance the power between persons and vendors and deepen the unequal protection of the laws. “Tort deform” rarely applies to corporate usage of tort law. In addition, Professor Arthur Miller (HLS ’58) has demonstrated how the federal rules of civil procedure have been twisted into obstructing the people’s access to justice (see more at https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-88-1-Miller.pdf).
These work products of corporate attorneys overwhelm and overcome what hurdles– legislative, judicial, and regulatory—there are that hold corporations accountable. Public interest lawyers know how powerful these defenses and strategies can be—for example, in litigation against corporate-owned prisons or Pentagon contractors, claiming sovereign immunity.
Corporate misbehaviors—either statutory crimes, common law gross negligence, civil violations of regulations, and regular criminogenic abuses—have been subjected to criticisms by some leading corporate attorneys.
About a century ago, the pre-eminent corporate lawyer, Elihu Root, a Nobel Peace Prize laureate and Secretary of State under Theodore Roosevelt, declared: “About half of the practice of a decent lawyer is telling would be clients that they are damned fools and should stop.”
Henry L. Stimson, the early twentieth century doyen of modern corporate attorneys, who served in high government positions, wrote about the necessity of the American lawyer to be a defender of the laws and Constitution. “I felt,” he wrote in his co-authored book On Active Service in War and Peace, “that if the time should ever come when this tradition faded out and members of the bar had become merely the servants of business, the future of our liberties would be gloomy indeed.”
That time has come. The ingenious advocacy of corporate attorneys has serviced a stifling matrix of political and economic global corporate power, deployed over capital, labor, and penetrating new technologies. There is an accelerating, huge imbalance between individuals and corporations, both within and outside formal legal frameworks. Under such condition, there can be very little “equal justice under law.”
Corporate lawyers going to extremes seem wholly unrestrained by their status as “officers of the court” and the larger ethical standards and missions accorded this privileged monopoly known as the practice of law. Lucrative corporate retainers can narrow one’s sense of professional responsibility.
Writing in 2009, Law Professor and leading legal ethics specialist (author of the treatise “Regulation of Lawyers,” Stephen Gillers concludes: “A lawyer who uses his or her legal education and skills to distort the law, to destroy the rule of law, because he or she is adept at manipulating language, when no judge, no adversary, is watching, is as blameworthy as the client. You cannot hide behind your professional mask.”
Louis D. Brandeis in 1905 told a gathering at Harvard: “…able lawyers, to a great extent, allowed themselves to become adjuncts of great corporations and have neglected their obligation to use their powers for the protection of the people. We hear much of the corporate lawyer and far too little of the ‘people’s lawyer.”
Occasionally, law firms heed these admonitions. One of Boston’s largest corporate firms, Hale and Dorr, instituted a policy in the nineteen seventies of not representing any tobacco companies. In the early 1970s, Robert Wald, the attorney for tobacco company, Lorillard, Inc. dropped his client after he became convinced of the company’s failure to address the health risks of smoking.
The above—noted subjects deserve a great deal more time in the law school’s curricula and extracurricular activities. Think of the engagements, around proper names and controversies that could flow from just one definition in the America Bar Associations (ABA) Model Rules of Professional Conduct: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice…”
As inquiring law students, you are now as free as ever to contemplate and address such conflicts within your chosen profession and anticipate the enormous perils or illegal corporate drives over the next half century of tumult. Think, for instance, about the personal ramifications of either your accepting or turning down a lucrative career defending the perpetuation of the fossil fuel industries and their greenhouse gases in the face of rapid climate disruption?
Think how you want to look back on your legal career fifty years hence. Looking backward is good way to be looking forward! You choose.
End
Ralph Nader (HLS ’58) is the co-author, with Wesley Smith, of No Contest: Corporate Lawyers and the Perversion of Justice in America (Random House, 1996).