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44 Val. U. L. Rev. 1199 (2009-2010)
2009 Tabor Lecture - Between Scylla and Charybdis: Ethical Dilemmas of Corporate Counsel in the World of the Holder Memorandum

handle is hein.journals/valur44 and id is 1209 raw text is: 2009 Tabor Lecture BETWEEN SCYLLA AND CHARYBDIS: ETHICAL DILEMMAS OF CORPORATE COUNSEL IN THE WORLD OF THE HOLDER MEMORANDUM John Hasnas* In Homer's Odyssey, the Strait of Messina is beset by two fearsome sea monsters. On one side resides Scylla, a creature with twelve feet and six heads on long, snaky necks, each possessing three rows of razor sharp teeth, who devours whatever comes within her reach. A bowshot away on the other side, resides Charybdis, a creature who drinks down and belches forth the waters of the strait three times a day, creating whirlpools that are fatal to shipping. On his voyage home, Odysseus attempts to sail through the narrow strait, avoiding both the slavering jaws of Scylla and the whirlpools of Charybdis. He is unable to do so successfully. This Lecture suggests that in the contemporary legal environment, corporate counsel as well as outside counsel who represent corporations' frequently find themselves in a situation analogous to that of Odysseus. The legal standard of corporate criminal liability coupled with current federal law enforcement policy can force attorneys who represent corporations to sail a vanishingly narrow strait between their professional obligation to represent their clients zealously within the bounds of the law and their personal moral obligations to deal with corporate employees honestly and justly. Professional ethics concerns both the ethical obligations of individual actors within a system and the ethical quality of the system as a whole. * Associate Professor, McDonough School of Business, Georgetown University; J.D. & Ph.D. in Philosophy, Duke University; LL.M in Legal Education, Temple University. The Author wishes to thank the members of the Tabor Institute on Legal Ethics and the faculty at the Valparaiso University School of Law for the opportunity to present the 2009 Bench and Bar Lecture. The Author also wishes to thank Ann C. Tunstall of SciLucent, LLC, for her insightful comments on a draft of this Lecture, and Annette and Ava Hasnas of the Montessori School of Northern Virginia for providing him with first-hand experience of what it means to be between Scylla and Charybdis. 1 For purposes of concision and convenience, I will employ the term corporation to refer not merely to businesses that have gone through the formal process of incorporation, but to business organizations generally, regardless of their legal form. My remarks apply to counsel representing partnerships and other unincorporated business organizations as well as those representing corporations. 1199

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