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  • Essay / N/A - 1914

    The television masterpiece Breaking Bad introduces audiences to the character of Saul Goodman, a colossal and hapless stereotype of a lawyer, as well as the enduring cultural trope of lawyers as catalysts of flaws and criminal behavior. Saul becomes a trusted business and legal advisor to the meth cooking duo, while of course skimming his cut. Across a wide range of media outlets, from The Wire to The Wolf to Wall Street, lawyers occupy secondary positions as confidants of crooks and criminals, doing more to rig the scales of justice than to zealously defend the interests of their customers. The idea that lawyers are fraudulent engineers has become more pronounced in the wake of the Enron scandal and financial crisis. Although this cultural narrative of lawyers as crooks or worse has roots at least as old as the New Testament, ethical rules have long played a role in combating fraud. To prevent socially harmful behavior by lawyers, there seems to be a new demand for higher responsibilities and duties towards society. This may simply be a reclamation of what might be considered overbroad limits on privilege and privacy. Perhaps this comes from the substantial, perhaps unprecedented, social costs caused by the near collapse of the financial system during the recent recession or by the spectacular implosion of Enron. We may even see what appears to be an unusual collapse of very high-value entities involved in fraudulent behavior, such as Stratton Oakmont, Bernard L. Madoff Investment Securities and Drexel Burnham Lambert. To use the famous words of Rahm Emmanuel when Wall Street was on the brink of collapse, we must not waste a crisis. Regardless of the underlying combination of factors, the 21st century... middle of paper ... must be an instrument enabling unlawful conduct is essential in determining whether the criminality and fraud exception applies. It is not enough for criminal action to be initiated while legal advice is sought on other matters or for a client to act on their own later after consulting a lawyer. Consultations sought as a result of criminal or fraudulent conduct do not trigger the exception – to the extent that they encapsulate the type of attorney-seeking behavior that invites privilege – provided the attorney is not sought to bury behavior, in which case such legal advice would constitute action in favor of the objective. crime or fraud. This tension between legal advice sought to further criminality (an action considered socially abhorrent and outside the duty of secrecy) and the prosocial behavior of seeking a lawyer underlies the controversy at the heart of the erosion of privileges as standards for lawyers evolve..