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  • Essay / Between a rock and a hard place: the erosion of...

    A possible flaw of the Sarbanes-Oxley Act is that it failed to put up the slightest resistance to thwart the financial crisis. While the extent to which fraudulent behavior can be traced to the roots of the Great Panic of 2007 will likely be a subject of eternal debate, it may be telling that the Sarbanes-Oxley Act effectively did nothing. It seems that this might indicate that stronger incentives for whistleblowers (such as the Dodd-Frank Act and perhaps other whistleblower protection schemes) are entirely necessary given the costs social extremes. This conclusion may, however, be hasty given the short time between the passage of Sarbanes-Oxley and the crash. Not only is the status of Sarbanes-Oxley still evolving more than a decade later, but one must also consider the substantial costs of learning and change associated with a regime of such scope. Granted, this is not to say that additional protections might actually be necessary given the alleged reluctance of lawyers to report fraud, but the Sarbanes-Oxley Act probably needed more time to really crystallize and provide some level of predictability before being able to declare bankruptcy. Another major problem with Sarbanes-Oxley and Dodd-Frank reform efforts is the misplaced ethical incentives they impose on lawyers in advising them on structuring their clients. Because the Sarbanes-Oxley Act only applies to publicly traded companies, it significantly increases the cost of going public and creates strong incentives for going private for management and directors as well as for legal advisors to a company. Lawyers stand to benefit not only from reduced reporting and monitoring pressures, but also from the substantial fees charged for advising large-scale, multibillion-dollar takeovers. The...... middle of paper ......f-regulate? A reasonable argument for increased regulation can be made given the enormous cost of recent financial crises and the ostensible role of lawyers in these crises. Additionally, because lawyers effectively serve as gatekeepers and approvers of much business decision-making, they may be the most effective risk bearer for reducing outsourced costs, whether through a division of ethical responsibilities between in-house lawyers and independent firms or simply remaining on drastic responsibilities. Lawson course. This change in the role of lawyers presents a difficult contradiction in that the exact added value of lawyers is transformed into a social duty and it is not clear that the two can coexist. However, given the relative lack of traction and progress, it appears that the rigidity of established behaviors may present too much value for both lawyers and clients...