Comparing criminal law to “big law” (spliced)

[GGrievous]

1 hour ago, Rashabon said:

Yeah I don't bother chiming in with any seriousness on those threads. If people want to talk big law they can PM me but the crim lawyers all want to swing their dicks around about how great they are every time any discussion pops up. It then gets absurdly reductive, and I vaguely recall calling out Diplock or someone else on this point on the old forum. "You're all about the rich getting richer" is the equivalent to "you get rapists and pedophiles off scot free" and "you throw innocent people in jail". It doesn't add anything to the conversation.

To be fair this derailment was mainly caused by a big law articling student swinging his dick about how much more complex their work is. 
 

also, I’ve heard excellent explanations from defence lawyers, all who say they’re repeatedly asked questions like “how can you defend a murderer/rapist/abuser”. Maybe it’s sample bias because I mostly talk to criminal and PI lawyers, but I’ve never heard a good explanation as to why someone would choose to help a corporation. I’m not saying there isn’t one, and I would be very genuinely interested to hear it. 

Edited April 4, 2022 by Barry

[BlockedQuebecois]

23 minutes ago, Barry said:

also, I’ve heard excellent explanations from defence lawyers, all who say they’re repeatedly asked questions like “how can you defend a murderer/rapist/abuser”. Maybe it’s sample bias because I mostly talk to criminal and PI lawyers, but I’ve never heard a good explanation as to why someone would choose to defend a corporation. I’m not saying there isn’t one, and I would be very genuinely interested to hear it. 

The entire point of the posts above, including the one you've quoted, is that people who practice in big law environments have reasons for doing what they do, but they don't post about them on this forum because it's boring to always be derailed by people whose conception of big firm practice is as shallow as "why would you ever want to defend a corporation". 

27 minutes ago, Barry said:

To be fair this derailment was mainly caused by a big law articling student swinging his dick about how much more complex their work is. 

Yes, and I would find it disappointing if criminal lawyers stopped advising students here because every time a young criminal lawyer or student made a comment about how much more meaningful they think their work is a bunch of other practitioners came in and fully derailed the topic. We don't have that problem, though. 

I agree @SlytherinLLP shouldn't have made their comment about criminal law. But it was essentially an obiter comment that easily didn't need to derail the conversation.

In any event, I raise it only as an issue people may want to consider in the future. The comments above make it clear I'm not the only one choosing not to engage on these topics for the reasons I've shared.

We're a community, and I think we have a collective interest in this community reflecting a variety of professional viewpoints. If people prefer the community continue to lack experienced big law lawyers discussing their motivations, people can continue derailing every thread in which it comes up. If, like me, people think it's worth having that perspective, then they can be more mindful about how they approach and contribute (or don't contribute) to those discussions. 

[MOL]

I would think it would be the same as for any criminal defendant; everyone is entitled to due process and equal treatment under the law. An adversarial process is fundamental to our system of criminal justice and every defendant is entitled to a defence.

[GGrievous]

Of course that’s  your choice to not offer that perspective. I don’t really buy that you’re not doing it because of criminal lawyers though. But again, your choice. I will agree It is a shame that aspiring lawyers aren’t hearing it. 

[Conge]

1 hour ago, Barry said:

I’ve never heard a good explanation as to why someone would choose to help a corporation. I’m not saying there isn’t one, and I would be very genuinely interested to hear it. 

I suspect you already know this, but it's because it pays well. Corporations pay their bills, on time, and they are generally willing to pay more than the average person for good legal services. Some people want  to maximize the money they can make to provide better things for them selves or their family (or both). Horrendous, I know. 

Edited April 4, 2022 by Conge

[GGrievous]

30 minutes ago, Conge said:

I suspect you already know this, but it's because it pays well. 

I did know that, yes. Maybe we could have a safe thread so big law folks could talk about it with 0 tolerance from other areas participating. I guess I just find it hard to believe that two posters who typically have no qualms about getting into debates, who also both have the expertise and intellectual capacity to do so would tap out of a discussion because there may be some shitposts. 

Edited April 4, 2022 by Barry

[CleanHands]

57 minutes ago, MOL said:

I would think it would be the same as for any criminal defendant; everyone is entitled to due process and equal treatment under the law. An adversarial process is fundamental to our system of criminal justice and every defendant is entitled to a defence.

You're referring to the principles underlying the cab-rank rule.

Duncan Kennedy had interesting criticisms of this and, funny enough, explicitly exempted criminal defence from being subject to the same criticisms:

Quote

While it's true no one should blame you for refusing to represent a client whose activity you disapprove of, that's not enough. You should feel guilty, and we should disapprove of you, if you go ahead and argue a cause you think will do more harm than good. You shouldn't take the case if you think it would be better for society, or more moral, for the client to lose. You shouldn't take the case if you think the client shouldn't be in court in the first place, for example, because the client should morally have made recompense even though he has a technically good legal defense. You shouldn't take the case if your client is enforcing his legal rights, but is using his legal rights in a bad cause. 

[...]

The right to counsel does not mean that clients whose causes hurt the body politic have a right to your counsel just because they have the money to pay for it.

I think it's morally fine to be a public defender or a legal services lawyer, in spite of the fact that you will sometimes find yourself representing guilty or immoral people. In those cases, there has been a social decision that people should have lawyers even if they can't afford them. I'd go further, and say that if a prospective client can't get a lawyer unless you represent them, and if they are likely to be treated unfairly by the system if they don't have a lawyer, then you ought to take the case to prevent the injustice of their being unrepresented. 

But what I'm talking about is this: ought you, or ought you not to do the paperwork for a real estate developer who is acting legally and completely within his rights in buying up 100 low income apartments housing 400 poor people and converting them to 40 condominiums housing 80 yuppies, when the poor people will have to move into smaller apartments for higher rents and increase the starch content of their children's diets? I say you ought not to do it, and the right to counsel is irrelevant. Let some other lawyer do it, or let the developer do it himself, in the unlikely event that no one else can be bought.

I think the real objection to my proposal is that it contradicts our sense that it's okay to distribute legal services among people according to how much money they can pay. Lawyers want to feel that because society has left the decision about who gets a lawyer, and what lawyer (an incompetent or the best money can buy) to the market, then it's all right for them to forget about it, while selling their own services for what they will command, regardless of the morality of the legal activity.

Edited April 4, 2022 by CleanHands

[MOL]

He seems to be conflating a couple things; the right to counsel in a criminal matter is different than the right to hire counsel or for counsel to work for an unscrupulous developer.

I'd argue that the crime your defendant client may be accused of, and may have done, harms the body politic but your providing him a defence and seeing that justice is done via due process and a full defence provides more good on the whole.

That being said, the defendant's right to a defence is just that; a defence. Not necessarily my defence. Putting aside of course the improbable occurrence that there is no one else available to defend them.

[CleanHands]

1 minute ago, MOL said:

He seems to be conflating a couple things; the right to counsel in a criminal matter is different than the right to hire counsel or for counsel to work for an unscrupulous developer.

I'd argue that the crime your defendant client may be accused of, and may have done, harms the body politic but your providing him a defence and seeing that justice is done via due process and a full defence provides more good on the whole.

He is distinguishing them and saying the same thing you are, though. Essentially, there is a public interest in all criminally accused people having access to legal representation broadly (even if a specific accused person is obviously guilty and it would be a bad thing for them to be acquitted), but there is no public interest in corporations being able to hire lawyers to facilitate doing things that are totally unethical and contrary to the public good even if said things are completely legal.

[Fruitdealer]

8 minutes ago, CleanHands said:

He is distinguishing them and saying the same thing you are, though. Essentially, there is a public interest in all criminally accused people having access to legal representation broadly (even if a specific accused person is obviously guilty and it would be a bad thing for them to be acquitted), but there is no public interest in corporations being able to hire lawyers to facilitate doing things that are totally unethical and contrary to the public good even if said things are completely legal.

Wait, why is everyone even talking about egregiously amoral condo developers or whatever else is going on here. I'm fairly confident that the majority of corporate lawyers are not sitting there trying to figure out how to Dr. Evil the shit out of poor people and hide every last tax dollar away from the government.

I dare say that most solicitor side corporate law work involves various aspects of setting up a business (incorporation, SH agreements, structure, etc), operating the business (commercial contracts, regulatory compliance, IP, etc) and various funding aspects (financing/investment, M&A, IPOs) where frankly most of what is involved is compliance and protection for the various parties involved. What do people actually think corporate lawyers do...?

[CleanHands]

2 minutes ago, Fruitdealer said:

Wait, why is everyone even talking about egregiously amoral condo developers or whatever else is going on here. I'm fairly confident that the majority of corporate lawyers are not sitting there trying to figure out how to Dr. Evil the shit out of poor people and hide every last tax dollar away from the government.

I dare say that most solicitor side corporate law work involves various aspects of setting up a business (incorporation, SH agreements, structure, etc), operating the business (commercial contracts, regulatory compliance, IP, etc) and various funding aspects (financing/investment, M&A, IPOs) where frankly most of what is involved is compliance and protection for the various parties involved. What do people actually think corporate lawyers do...?

Duncan Kennedy would take no issue with anyone doing the stuff you allude to!

I posted that in respond to an "everyone is entitled to a defence" statement applied to the corporate civil law world.

[Rashabon]

14 minutes ago, CleanHands said:

He is distinguishing them and saying the same thing you are, though. Essentially, there is a public interest in all criminally accused people having access to legal representation broadly (even if a specific accused person is obviously guilty and it would be a bad thing for them to be acquitted), but there is no public interest in corporations being able to hire lawyers to facilitate doing things that are totally unethical and contrary to the public good even if said things are completely legal.

The argument is neat (and I am familiar with it) but it doesn't hold together in the real world (which Kennedy somewhat acknowledges), where legal services for criminal defendants still get apportioned based on how rich you are. Why should Marie Heinen or Eddie Greenspan profit off criminal defence when a poor kid caught up in the system has an overworked public defender? The distribution of legal services in criminal law is incredibly inequitable and harms the body politic significantly as a result.

[Fruitdealer]

Just now, CleanHands said:

Duncan Kennedy would take no issue with anyone doing the stuff you allude to!

I posted that in respond to an "everyone is entitled to a defence" statement applied to the corporate civil law world.

Fair enough, though I think my comment generally applies to the overall arguing that's been going on. In terms of being entitled to a defence, I don't think many people would disagree that corporation's aren't entitled to shit (in terms of legal work) except for whatever they've paid for.

[epeeist]

4 minutes ago, MOL said:

Tricky ground though; who determines what is unethical or contrary to the public good? Theoretically, something contrary to the public good would be illegal. Theoretically.....

And @CleanHands

I tend to agree in principle with the Kennedy excerpt.

Though this is no longer improving one's day...thinking about lawyers and law firms representing billionaire Russians seeking to evade sanctions. Legally (assume for the sake of argument that corporate structures, trusts, and/or legal pseudonymity allow legal evasion of restrictions that have been quickly drafted).

It's legal but not moral or ethical to do this, in the view of most people. There may be some people who genuinely believe that sanctions, even of the ultra-rich Putin supporters, ultimately harm ordinary Russians who had no choice in the war and who may oppose it and that engagement is better (this is similar to the argument that it is better to engage with totalitarian regimes than isolate them - which funnily enough seems to mean oil-rich countries and others like China it would be economically disadvantageous to engage with but not poorer totalitarian countries...).

Regarding real estate developers, there can be more complexity. Do I want prime farmland turned into residential neighbourhoods, is that good for the environment? No. But is it fair that a farmer be forbidden to realize the value of their land? Also no. The fairest outcome would be for the public to bear the costs (i.e. pay market value and rent out the land for farming only) but that ain't gonna happen, because even the most progressive environmentally-friendly government isn't that environmentally friendly when it costs that much money. So I could totally see even a moral paragon thinking it's okay to help the developer because the farmer gets money, and the public and governments have known about the issues involved for decades, and no government (in Ontario, have had NDP, liberal and conservative in past 20 years) has chosen to do anything about it.

[Mountebank]

One of the problems with the Kennedy argument is that the ethical decision he points to can only arise in a binary case in which one side is obviously evil and the other side obviously righteous. But, as lawyers, we all ought to know that such a binary case rarely ever arises (at least in the civil realm, which is the one he alludes to). And, frankly, if you think it has, you may have lost some perspective.

I'm sure plenty of us can think of cases in which everyone involved had equally valid moral claims to a remedy (or equally lacked such claims). I know I've seen estate litigation files in which I didn't particularly think anyone deserved the money they were fighting over. They all sucked. But the law dictated that someone in that specific group was entitled to the money and, further, that no one outside that specific group could be entitled to anything, so...basically, have at it!

[Hegdis]

So I merged a bunch of posts about this topic that popped up in the "Little Things That Improve My Day" thread because they were objectively not about anything that improves anyone's day. Let this thread be the place where criminal and corporate collide. Enjoy.

[CleanHands]

7 minutes ago, Hegdis said:

So I merged a bunch of posts about this topic that popped up in the "Little Things That Improve My Day" thread because they were objectively not about anything that improves anyone's day. Let this thread be the place where criminal and corporate collide. Enjoy.

Your day isn't improved by interesting discussions about philosophy of law? 😛

[Hegdis]

Also, for future reference, splicing and thread cleanup is kind of what mods do. So if you see a thread derail, especially one that drowns out the relevant topic, flag it for us and we will do exactly this (ie the thing I just did as soon as I saw the thread and after I had my coffee).

The original big law thread everyone has been discussing is now just about big law, and we can keep it that way, and so you should all feel comfortable contributing the great contributions you can no doubt contribute.

[Geworfenheit]

7 hours ago, Barry said:

To be fair this derailment was mainly caused by a big law articling student swinging his dick about how much more complex their work is. 
 

also, I’ve heard excellent explanations from defence lawyers, all who say they’re repeatedly asked questions like “how can you defend a murderer/rapist/abuser”. Maybe it’s sample bias because I mostly talk to criminal and PI lawyers, but I’ve never heard a good explanation as to why someone would choose to help a corporation. I’m not saying there isn’t one, and I would be very genuinely interested to hear it. 

Just wanted to chime in as a student with very limited experience in big law & corporate work. 

I decided I want to practice in big law a long time ago when I was in high school. I was attracted to that after I read a post written by a US big law lawyer sharing her M&A practice. I was intrigued by the opportunities to learn about different industries and companies and participate in big name deals. (I know this sounds the same for IBs/funds but I just don't like finance and prefer the idea of cultivating lawyering skills.) The story of "poison pill" also lighted me up and made me want to be an M&A lawyer like Martin Lipton.

I followed this career path and my big law plan worked out. I summered at a bay st firm last year and pretty much enjoyed it. I didn't get to do any substantive work as a student but do get the chance to witness some of the substantive and interesting work done by seniors and partners. For example, there was a kinda novel issue concerning dual-listing in the US and no precedent/past practice was available for reference. The partners on the email chain had to discuss the various National Instruments and TSX rules to figure out the answer. It was hard to follow their exchanges of thoughts (bc so many unfamiliar rules) but very entertaining to watch. There was another memorable case related to a post-acquisition arrangement. On the one hand, because of what happened in negotiations, it went from a Canadian-led deal to a US-led deal and it's interesting to see the different legal outcomes caused by different business decisions. On the other hand, it's interesting to see my mentor discussing the possibilities of various arrangements for payments received for the acquisition with partners. I felt it to be fascinating to walk through the corporate law & corporate governance guidelines (eg. Glass Lewis guidance) to come up with a workable plan.

My interest in big law practice may be considered shallow by experienced lawyers but that's how I feel right now. (Maybe @Rashabon, @Ghalm, and @BlockedQuebecois could let me know if I am being realistic?) I just hope I would continue to enjoy the corporate & securities law work I get to do in big law after I officially start my career.

[easttowest]

8 hours ago, Barry said:

…I’ve never heard a good explanation as to why someone would choose to help a corporation. I’m not saying there isn’t one, and I would be very genuinely interested to hear it. 

I’m so confused by this. What is your conception of a “corporation”? 

I don’t pretend to be a paragon of virtue, but one of my clients is a corporation that was stiffed by a development partner and then sued by that partner for a (in our view) bogus breach of contract/theft of confidential information claim for like $50 million. That’s shitty! Why wouldn’t I want to help them?

Lol. I put my phone down and am still so rattled by the premise that I picked it back up to continue. Even if the plaintiff is an individual, what if they’re making a totally garbage (or even just inflated) claim against a corporation? Nobody should rep a corporate defendant because… because why? Because they’re not an individual? 

 

 

 

Edited April 5, 2022 by easttowest

[LMP]

1 hour ago, easttowest said:

I’m so confused by this. What is your conception of a “corporation”? 

I don’t pretend to be a paragon of virtue, but one of my clients is a corporation that was stiffed by a development partner and then sued by that partner for a (in our view) bogus breach of contract/theft of confidential information claim for like $50 million. That’s shitty! Why wouldn’t I want to help them?

Lol. I put my phone down and am still so rattled by the premise that I picked it back up to continue. Even if the plaintiff is an individual, what if they’re making a totally garbage (or even just inflated) claim against a corporation? Nobody should rep a corporate defendant because… because why? Because they’re not an individual? 

 

 

 

I like this view. I like it because to me it hits the same notes as the justification for criminal defense lawyers. 

Why have defense lawyers? Because either the accused is innocent and we don't want them to be punished unfairly.

Or they are guilty, but for the benefit of society as a whole we want to ensure that the claims are substantiated and proven. 

This has been discussed to death but I rarely see it applied to other areas of law. Why not carry this thinking over to other areas of law?

The corporate lawyer has an important role in the justice system. The PI defense lawyer has an important role in the justice system. The tax lawyer for a massive corporation has an important role too. 

There are always exception to every rule but I fear that many roles get painted with far too broad a brush. 

[GGrievous]

2 hours ago, easttowest said:

I’m so confused by this. What is your conception of a “corporation”? 

I don’t pretend to be a paragon of virtue, but one of my clients is a corporation that was stiffed by a development partner and then sued by that partner for a (in our view) bogus breach of contract/theft of confidential information claim for like $50 million. That’s shitty! Why wouldn’t I want to help them?

Lol. I put my phone down and am still so rattled by the premise that I picked it back up to continue. Even if the plaintiff is an individual, what if they’re making a totally garbage (or even just inflated) claim against a corporation? Nobody should rep a corporate defendant because… because why? Because they’re not an individual? 

Well I'll preface this by reminding you I never said there isn't a good reason, just that I haven't heard it. Given what my interests happen to be this forum is where I most likely would get that info, and apparently people are intentionally not publicly disclosing it. 

I will say in my view (since I was asked) big corporations represent exploitation: 

https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change

https://www.cbc.ca/news/business/cra-corporate-taxes-1.5179489

https://briarpatchmagazine.com/articles/view/amazon-mcdonalds-aw-sleep-country-tjx-linked-to-anti-union-conference

So it's difficult for me to understand why those with liberal values would want to contribute. I understand the desire to make a lot of money. I understand the pressure that individuals have to make more money to afford simple things like a house, their student loans, etc. I'm not a paragon of virtue either. I have socialist values but I don't think those who make the choice are bad people, it's just that we're drowning here and I just don't relate to that choice, which is why I asked. 

Edited April 5, 2022 by Barry

[Conge]

12 hours ago, Fruitdealer said:

What do people actually think corporate lawyers do...?

They know what corporate lawyers do, more or less. They just like getting on their high horse. 

[Ruthless4Life]

Trained in a small niche criminal law firm in my articling.  Handling clients were extremely difficult, for obvious reasons.  The "adversarial nature" in the practice of criminal law is also not something everyone enjoys.  Now I practice commercial litigation, which I think is a better "balanced" for my sanity.

[easttowest]

6 hours ago, Barry said:

Well I'll preface this by reminding you I never said there isn't a good reason, just that I haven't heard it. Given what my interests happen to be this forum is where I most likely would get that info, and apparently people are intentionally not publicly disclosing it. 

I will say in my view (since I was asked) big corporations represent exploitation: 

https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change

https://www.cbc.ca/news/business/cra-corporate-taxes-1.5179489

https://briarpatchmagazine.com/articles/view/amazon-mcdonalds-aw-sleep-country-tjx-linked-to-anti-union-conference

So it's difficult for me to understand why those with liberal values would want to contribute. I understand the desire to make a lot of money. I understand the pressure that individuals have to make more money to afford simple things like a house, their student loans, etc. I'm not a paragon of virtue either. I have socialist values but I don't think those who make the choice are bad people, it's just that we're drowning here and I just don't relate to that choice, which is why I asked. 

So, your answer more or less goes to what @blockedquebecois said about being bored by these exchanges. Your view is apparently that big corporations are bad, and that’s the end of it. “Big corporations represent exploitation” therefore you can’t see a good reason to rep one is frankly not an interesting position to engage with. Your mind is made up.