The market for bad legal scholarship: William H. Simon's experiment in professional regulation.

• Author: Green, Bruce A.
• Position: Response to article in this issue, p. 1555

INTRODUCTION I. A BRIEF CRITIQUE OF WILLIAM SIMON'S THEORY OF LEGAL AND ACADEMIC PRACTICES A. An Outline of Simon's Theory B. Critiquing Simon's Theory of Law Practice 1. The duties of legal advisors 2. The duties of expert witnesses C. Critiquing Simon's Theory of Academics' Law Practice II. GLASS HOUSES AND IVORY TOWERS: SIMON'S IMPLEMENTATION OF HIS THEORY A. Background: The Nextel Settlement B. The Virtues of Client Information Control: Simon Privately Validates the Complaint C. Implementing the Theory: Simon Secures a Confidentiality Waiver D. The Virtues of Conventional Expert Practice: The Disclosures of Simon's Opinions 1. Simon's departures from Circular 230 2. The legitimacy of conventional norms E. Keeping Quasi-Third-Party Legal Advisors Accountable: Simon's Depositions F. The Perils of Practicing Law as an Extension of One's Scholarship: The Court Strikes Simon's Testimony G. Ultimate Accountability for "Quasi-Third-Party Academic Legal Advice": The Judge and Jury Reject Simon's Opinions III. ACADEMIC REGULATION OF ACADEMICS' LEGAL WORK: IS THERE A MARKET FOR BAD LEGAL SCHOLARSHIP? A. The Factual Unreliability of Academics' Regulatory Critiques B. The Legal Unreliability of Academics' Regulatory Critiques C. The Scholarly Triviality of Academics' Regulatory Critiques D. The Untested Market for Academics' Regulatory Critiques CONCLUSION INTRODUCTION

William H. Simon (1) is a highly regarded law professor and legal theorist whose principal subjects include the legal profession. Much of his scholarship challenges conventional professional norms and practices. (2) His most recent article targets lawyers, especially law professors, who advise clients and serve as expert witnesses. (3) His basic premise is that some clients do not seek lawyers' accurate, honest views but want their lawyers to ratify their proposed or past conduct regardless of its lawfulness, and that law professors and other lawyers sometimes satisfy this market by giving "bad legal advice." To discourage lawyers from doing so, and to minimize the impact of lawyers' bad advice on third parties, Simon argues that lawyers should follow more rigorous standards of analysis, transparency, and accountability both when they give advice or expert testimony and when clients later use their legal work to influence others. He argues that legal academics practicing law should meet the most rigorous standards of all--including standards of transparency associated with the academy, not the legal profession (4)--and, further, that legal academics should regulate each other by "shaming" colleagues who practice badly. (5) In the abstract and at a level of generality, Simon's theory is appealing because it promises to hold lawyers to a higher standard of care for the public good. The question, however, is how Simon's proposal at a level of particularity would play out in actual law practice. This Reply argues that Simon overstates the problem, understates the significance of existing disincentives to giving erroneous advice, and offers a solution that is difficult to implement and would do more harm than good.

Ordinarily, it is hard to test theories challenging conventional modes of practice, but not in this case because, while writing his article, Simon engaged in legal work to which he could apply his theory. Specifically, in 2003, he became a litigation consultant and legal ethics expert witness on behalf of plaintiffs who were suing their former lawyers, the civil rights law firm of Leeds Morelli & Brown (LM&B), and he secured the plaintiffs' waiver of confidentiality and permission for him to write about their lawsuits. (6) Doing so accorded with his theory that when law professors give legal advice or testify as experts, they should envision their work as an extension of their legal scholarship, meaning that when practicing lawyers would conventionally maintain client confidences, law professors would publicly present and discuss their legal work as if they were debating legal theory in law journals and at academic conferences. At the same time, as an expert witness, Simon accumulated information about the legal work of opposing academic experts that he might use to critique the work of those who practice under the prevailing standards and expectations.

Simon's article, The Market for Bad Legal Advice, (7) presents his theory (8) and illustrates it by discussing McNeil v. Leeds, Morelli & Brown, one of the malpractice lawsuits in which he participated. Simon critiques the work of the three law professors on the opposite side of the litigation, of whom I was one. (9) Intending to be "provocative," (10) Simon accuses the others of giving "bad legal advice" both procedurally (because the process by which they developed and expressed their views departed from his theory) and, to a lesser extent, substantively (because he disagrees with their views on the law). (11)

Simon's accusation is provocative in the conventional sense: It is meant to get attention, and has already done so, (12) in part because of its one-sided factual account, (13) equally one-sided legal positions, (14) and personal attacks on Professor Geoffrey C. Hazard, Jr. and two other academic brethren. (15) But it is also provocative in another sense: In July 2007, two months before the lawsuit went to trial, Simon circulated a draft of the article to the law professors on the other side in a failed attempt to provoke a response from them, and then, in November 2007, before the trial concluded, he published it electronically. (16) In trying to provoke the defendants' experts, the article is, at once, an act of advocacy in a pending litigation and a stage of the ongoing experiment in which Simon put his theory into practice.

While claiming that the other three academics performed badly, Simon offers himself as a model of "desirable" legal and scholarly practices. (17) But events after Simon drafted the article cast doubt on this claim:

* The defendants accused him of professional misconduct for (among other things) securing the literary rights to the plaintiffs' story and writing and distributing his article about the litigation before trial. The plaintiffs' attorney declined to defend Simon's conduct, and the trial court struck Simon's expert testimony without opposition. (18)

* The legal positions that Simon had previously endorsed were rejected as a matter of law by the judge and as a matter of fact by the jury, which rendered a verdict for the defendants. (19)

* As soon as Simon published the article electronically, disinterested academics in the field of legal ethics questioned both the credibility of his article's discussion of the opposing experts and its thesis about how lawyers should practice. (20)

Thus, the quality of Simon's advocacy as a litigation consultant, the credibility of his expert opinions, and the value of his article as a work of scholarship, all suffered because, in accordance with his theory, he merged his professional and academic roles, ignored the conventional professional norms, and attempted to perform his legal work as if he were engaged in scholarship. If Simon's legal work was indeed an extension of his scholarship, it was bad legal scholarship with pernicious consequences for his clients.

This Reply explores Simon's theory and his implementation of it. Part I points out problems with Simon's theory about how lawyers, including academic lawyers, should perform legal work. Part II uses Simon's work as an expert witness in McNeil as a case study to test his theory. It shows that his theory did not withstand testing, not only because Simon's attempts to adhere to the theory harmed his clients, but also because, as committed as he was to the theory, Simon evidently found the theory imprudent to fully implement in practice. Whatever one may otherwise think of Simon's theory, his experiment in the practice of law thus proved it to be a failure.

Finally, Part III explores Simon's idea that academics should regulate their colleagues' legal work by publicly "shaming" those who perform badly. Simon uses his Article, in part, as a vehicle to shame Professor Hazard, who issued a written opinion with which Simon disagrees. Toward that end, Simon attempts to show that Hazard's opinion was "patently wrong on nearly every issue it addresse[d]." (21) Employing Simon's article as a case study, Part III argues that academic exercises in professional "shaming" make for both bad scholarship and bad regulation. Simon's critique of Hazard's legal work, for example, rests on a biased and incomplete account of both the facts and the law, and his disagreement with Hazard, largely based on a different set of factual understandings, is academically trivial. Given its limitations, one might wonder whether other scholars will engage in similar regulatory exercises and whether law journals will publish the results.

1. A BRIEF CRITIQUE OF WILLIAM SIMON'S THEORY OF LEGAL AND ACADEMIC PRACTICES

   Simon's theory addresses two aspects of professional practice. First, it offers ideas about how lawyers in certain areas of practice should conduct their work. Simon's view is that lawyers, especially academic lawyers, whose legal advice or expert opinions may later become public, should have greater duties of candor, disclosure, and accountability than they now have. Second, Simon considers the work of legal academics in their scholarly role. His position is that legal scholars should critique their colleagues' legal practice, thereby performing a regulatory function. This Part raises questions about Simon's theory before turning in Parts II and III to Simon's own legal work and academic writing as case studies through which to test his theory. Subpart A outlines Simon's theory. Subpart B focuses on the duties he would impose generally on lawyers who serve as legal advisors or expert witnesses, premised on the duties now imposed on tax lawyers. Finally, Subpart C examines the...