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OP I N ION Times, Sorkin's colleague Joe Nocera wrote: "the kind of amoral, eat-what- you-kill capitalism that Goldman rep- resents is one that most Americans instinctively find repugnant. a pejorative. Today, it is increasingly a badge of honor. In another " recent article in the firms the suspicions many people have that Wall Street has become a place where sleazy practices are the norm, and where generating profits in ways that are detrimental to society is the ticket to a successful career and a mul- timillion-dollar bonus." Nocera doesn't spell this out, but the sleazy practices of Goldman and the like are invariably aided and abetted by an army of profes- sional lickspittles, particularly lawyers and accountants, anxious to do the bidding of their paymasters no matter where that might take them. This phe- nomenon is not, of course, confined to Wall Street. Hello Bay Street, the City of London, Nariman Point in Mumbai, La Défense in Paris, and the list goes on. Here's where I have to stop and make It con- quite clear that it would be unfair to tar all corporate lawyers with the same critical brush. Many are honourable and ethical. Many steer their clients firmly in the right direction. Some will resign from a file, or ditch a client, if they see a conflict or otherwise cannot square their conscience with what's going on. These ethical lawyers, bless them, do exist. But, regretfully, there are fewer and fewer. They are old school, and the old school is closing its doors for good. Steven Harper (the other one) recent- ly wrote in his acclaimed legal blog The Belly of the Beast, "Most big law firms have evolved — or devolved — into short-term bottom-line businesses." As that happens, to use Sorkin's words, the tag "commercial" becomes a badge of honour. The old-fashioned "I'm a profes- sional" is supplanted by the modern "I'm a businessman." Large and complex corporate trans- actions, particularly mergers and acqui- sitions involving public companies, are particularly fraught, with multiple inter- ests easily in conflict. The chances are good that a big law firm advising one of the principal parties will also rep- resent (or have represented in some other matter) a major shareholder or two (a pension fund, for instance), a com- mercial lender, a relevant government, one or more senior executives or board members of the companies involved, etc. Sorting out and resolving these conflicts, some largely technical but others com- mercially real and important, is not an easy thing to do. The pressure within a law firm to ignore them is very powerful. To acknowledge these conflicts might involve walking away from a file or a cli- ent, and the commercial pressure not to take that costly step is enormous. For an individual lawyer it could mean waving goodbye to a bigger share of partner- ship profits and the promise of a highly successful career. As Deep Throat said, if you want to understand how people behave, follow the money. About three years ago, as the econo- my collapsed around our ears, I wrote in these pages about the ethical responsi- bilities of lawyers in such circumstances. "If a lawyer, sitting in a conference room with his banker client, thinks that a mortgage applicant will soon default if given what he's asking for; or that a col- lateralized mortgage obligation is backed by loans that likely will collapse; or that a bond-rating agency hasn't done its homework and is handing out ratings that will mislead investors; or that finan- cial engineering is going on that could have incalculable adverse consequences; he should stand up, put his hat on, and walk out." Predictably enough, some members of the profession criticized these views as naive. Legal practice, I was told, is mor- ally neutral. A lawyer is not his brother's ethical keeper. Presumably it is doubly naive, in the world of so-called big law, to urge scrupulous regard for the niceties of conflicts. That's just not the way it is. It isn't commercial. And "commercial" is a badge of honour. Philip Slayton's latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @ philipslayton. YOUR BLUEPRINT FOR A STEP-BY-STEP ANALYSIS OF THE LAW AND PROCESS CANADIAN LAW OF COMPETITIVE BIDDING AND PROCUREMENT ANNE C. McNEELY ORDER # 804504 $184 Hardcover October 2010 approx. 520 pages 978-0-88804-504-1 Canadian Law of Competitive Bidding and Procurement is an easy-to-use guide to the law governing the procurement of construction and other services. It reviews both the court (including the Supreme Court decision of Tercon Contractors) and tribunal decisions, as well as trade agreement rules on fair procurement, which are rarely discussed and analyzed together. It also contains a detailed discussion of many of the unresolved issues in competitive bidding. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com CANADA LAW BOOK® Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. www.CANADIAN Lawyermag.com JUNE 2012 17

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