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12 Bus. Law. Update 1 (1991-1992)

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September/October
Volume 12 Number

1991
1

Should Justice Matter?

By the Honorable William T. Allen
Chancellor, Delaware Court of Chancery
Wilmington
Editor's Note: This article is adapted
from a speech presented to the Delaware
Stale Bar Association on the occasion of
Law Day 1991.
W e lawyers are captives of a partic-
ular vision of ourselves. Business
lawyers, hardly less than litigators, by
and large see their ideal professional
selves, as single-minded defenders of
their clients' interests or facilitators of
their clients' transactions. This domi-
nant view of what it means to be a law-
yer tends to ex6lude as illegitimate a
view of lawyers as independent actors
responsible in some degree for the qual-
ity of justice. I suggest, however, that
this dominant conception of lawyers as
only loyal agents is damaging to society
and to the quality of lawyers' lives. It
needs to be supplemented.
In the dominant view of what it means
to be a lawyer, each participant in our
adversary system is seen as playing a
specialized role that is defined wholly
by legal and ethical rules. The role as-
signed to private lawyers in this view is
chiefly that of advisor and advocate
charged with maximizing the interests
of the client. These roles are seen as
having no substantial place for action
or restraint dictated by a lawyer's merely
personal conceptions of justice or fair-
ness. If an action is legally permissi-
ble-and in practice, of course, that
means some non-frivolous argument can
be made that it is legally permissible-
and if it is in the client's interest, the
dominant view sees the zealous advo-
cate as being required to take or facili-
tate that action.
It is not difficult to see why the view
of lawyers as zealous advocates has come
to dominate our conception of our-
selves. First of all it flatters us. It recalls

the lawyer-hero  t to    'thoore',  e coira-
geous defender of the civil rights of un-
popular persons in the face of a
pressured, sometimes hysterical ani-
mosity: Clarence Darrow in the Scopes
trial, Gregory Peck in To Kill a Mock-
ingbird. The images pass easily from
history to myth and back again.
This is the noble vision of advocacy
and it continues to have pertinence. But
in daily life, a lawyer is rarely asked to
appear in a heroic context. The more
ordinary setting in which the zealous
advocacy ideal inspires or rationalizes
lawyer conduct is the garden variety civil
suit or administrative proceeding. When
an attorney representing a large corpo-
ration engages in oppressive or dilatory
discovery practice in a commercial suit,
when an attorney representing a cor-
porate shareholder brings suit challeng-
Continued on page 4

Section of Business Law
From the
Section Chair...
By Larry P. Scriggins
A s George Freeman wrote at the out-
set of his term as chair, the Section
has a tradition of collective leadership.
It is rare that any major initiative or
accomplishment of the Section can be
attributed to the action of any one chair,
and this year will be no exception. What
happens in our Section is driven by the
focus of our members working chiefly
through committees on major continu-
ing and new issues concerning a broadly
diversified group of business lawyers.
Providing a framework to facilitate the
ability of the Section's members to de-
liberate, debate, and produce the vast
variety of work product and provide for
its appropriate dissemination and pub-
lication is the major responsibility of
Continued on page 2

IN SIDE

Section wins some, loses some in ABA House
of Delegates                                     3
Section Council approves expanded activity      3
The Update is (nearly) dead: Long live
Business Law Today                             5
Meet our staff                                  6
It's time to stop polishing the pebbles         7
The ignored effect: Taxes and the calculation
of commercial damages                          9
Section publications                           12
Bank of Kuwait revisited: Client instruction as to
delivery of its counsel's legal opinion      16

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