Ethics

The Times website has a link to Rakoff's refusal to approve the Bank of America/SEC consent degree. (I'd hyperlink it if I knew how.) 

We've been discussing the litigation in class because of the possibility of waiver of privilege by putting a lawyer's advice in issue. 

Rakoff's stern opinion - finding the terms of the proposed decree unreasonable, unfair, and tasteless (well, not yet tasteless) - repeatedly questions why the SEC has not pursued the lawyers who gave the advice that the Merrill bonuses did not have to be included when the bank sought shareholder approval for the merger. Remember the words of Stanley Sporkin in In re Continental ("where were the lawyers" etc.? more or less).

Some officers have cited the advice of counsel though the bank claims it has not - not before Rakoff, nor before AG Cuomo, and perhaps not before the SEC. Counsel for B of A was Wachtell, for Merrill, Shearman (or possibly the other way around).  Smart claim. Rakoff can only reply, in effect, well maybe not but neither does the bank explain how it came to do what it did. 

So now the case goes to trial unless the SEC drops it, which it can't really do.

I predicted to my class that whether for attribution or not, a lot will eventually emerge. 

And then there's the curious and summary  firing of Merrill's GC last December...

What a great field we're in!

The bank's lawyer is Lewis Liman, who appears as tenacious as his legendary father, Arthur, among my mentors. Everything's connected. I predict that the eventual movie will be directed by Lewis's brother Doug ("Traffic" etc.) but I'm not sure who'll play Rakoff. Suggestions?

Interesting to watch...