Canadian Lawyer

BY PHILIP SLAYTON LEGAL ETHICS The new badge of honour The tag 'commercial' has become the one to aim for. The old-fashioned 'I'm a professional' is being supplanted by the modern 'I'm a businessman.' elsewhere in the legal world. Andrew Ross Sorkin of The New York Times, best-selling author of Too Big to Fail, recently wrote in his newspaper, "it increasingly seems that the lawyers aid and abet the bad behaviour of the nation's corporations, providing them with the cover of legal advice — some- times knowingly, sometimes not." Sorkin is particularly upset by "the utter lack of checkpoints put in place during a typical merger negotiation by an often seven-figure legal team." He gives as an example "T he lawyer always goes home. it captures an important point about the professional relationship between saying may seem a bit flippant or a trifle smug, but " This lawyer and client in the criminal justice system. If the client is a bad guy, he's the one who goes to jail, not the lawyer. The lawyer is not implicated in his client's crime, or tainted by it. He stands apart. Maybe that's true in the criminal justice system, but it's not quite like that 16 JUNE 2012 www. CANADIAN Lawyermag.com $23-billion takeover of El Paso Corp. by Kinder Morgan. Goldman Sachs advised El Paso even though it owned 19.1 per cent of Kinder Morgan and had two representatives on that com- pany's board. To make matters even worse (if that's possible), a Goldman Sachs banker who was advising El Paso on the transaction personally owned Kinder Morgan shares. None of the lawyers involved blew the whistle on these blatant conflicts of interest. Either they didn't know about them, which is virtually inconceivable, or they looked the other way and facilitated double- dealing. The law firms involved, by the way, were Wall Street heavyweights. Wachtell Lipton Rosen & Katz acted for El Paso, and Sullivan & Cromwell LLP were the lawyers for Goldman Sachs. Sorkin concludes his article on this sad note: "For many years, if a lawyer was called 'commercial, the recent ' that was considered oleg PortnoY

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