Wednesday, June 27, 2007


By Allison Hayward

Greetings, readers of the Legal Professions Blog!  I want to throw out an issue of special relevance to me today.  As some of you may know, the Supreme Court released a significant campaign finance decision, and as I happen to be familiar with that area, I've been approached about my opinion.  As it happens, I did not work (formally or informally) on the case.

But suppose I did?  How much involvement in one of these big controversial decisions is sufficient before a pundit should disclose his or her ties?  I've been friends with Jim Bopp (counsel for the winning side) for at least 10 years.  That's clearly not enough - a disclosure of that would sound almost silly.  If he paid me to consult on the case, then I think as obviously I should tell people that - I'm part of the team and so people considering my views on the case should be able to take that into account.  There's a range of situations in between where it is hard to say whether disclosure is important, harmless, or invasive.  (For example, having attended a meeting about the case with potential amici.)   

I'd like to know what people think - not so much how the rules work, but where the line should be.

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I'm not sure where to draw the legal line, but why not have a default or presumptive ethic that routinely favors disclosure even if, as here, "that would sound almost silly." And whatever legal lines are drawn would be consciously made with that in mind. I guess my point is how does even trivial disclosure harm anyone? And it's made (at least by my dim lights) with little or no cost. I prefer the widespread adoption of a transparency norm in such matters.

Posted by: Patrick S. O'Donnell | Jun 27, 2007 7:47:07 AM

Welcome, Allison! Interesting issue.

Aren't there two issues? First, an ethical issue (legal and moral) about what you can say if you worked on the matter as a lawyer - particularly if you don't have the client's consent.

Second, what disclosures you need to make to protect your credibility as a pundit.

As to the first, I wonder about this from time to time. I witnessed many things in the boardroom and the executive suite. The client, the corporation, exists, I suppose, as the merged entity. How much can I say about what happened?

Posted by: Jeff Lipshaw | Jun 27, 2007 7:53:07 AM

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