Whoops. Sorry about the hair-trigger send thing.
 
You might want to zap this if you are not interested in the first couple of sentences. I tend to run on.
 
All law (not just private civil law as I started out thinking and reflected in the aborted message) is a full employment act for lawyers. Lawyers make their money off human conflict and human foibles, or the avoidance of human conflict and foibles. Their fees are a voluntary rent companies pay when they do not exercise sufficient internal control (i.e., spend money knowing what is going on in their organizations) to avoid conflict and foibles. You can be responsible or you can pay lawyers. Umm, I would note that physicians make their livings off human illness and misery, professors off human ignorance, dentists off decaying teeth, and so forth as you can imagine.
 
That leaves three discrete issues, at least in my way of thinking (undoubtedly there are more):
 
First, are the lawyers involved in working in FCPA engaging in specific conflicts of interest? The fact that they have a specific financial interest in addressing human conflict is irrevelant. Do they have fiduciary duties to government, to justice, or to client that conflict, and if so do they engage in full disclosure and recuse themselves appropriately?; that is the issue, if there is a conflicts issue.
 
Second, are lawyers paid too much to resolve conflict and violations of the law? I guess it is a market question: Is a specific lawyer or law firm paid more than it is worth to the client? If so, the client should seek legal counsel more wisely, as they would any service supplier. And they do! On the other hand, if a corporation feels obliged to hire -- and  pay a premium price for -- a specific law firm because they think a recent hire from a relevant regulatory agency or the justice department can give them inside information and more lenient treatment, then that is a very serious matter that borders on criminal corruption and should be addressed vigorously. It may be a fine line between hiring expertise gained in public service and inside knowledge gained in public service, and the bar must, and I thought, does address that, but perhaps not vigorous enough. 
 
Third, is it a bad thing that the private bar acts, and profits from acting, as private law enforcers, or private attornies general? At least through the last half of the 20th century, the conventional wisdom has been no, it is, in fact, a good thing as a matter of public policy, at least in general, because it saves the government money, provides incentives all the way around for compliance with law, and partially insulates law "enforcement" from political shenanigans ( and I guess this thought is what made me start out as thinking only of private civil enforcement). 
 
How do my colleagues respond to these thoughts?
 
Ginny Maurer

________________________________

From: Academy of Legal Studies in Business (ALSB) Talk on behalf of Richard L. Coffinberger
Sent: Fri 5/7/2010 9:32 PM
To: [log in to unmask]
Subject: FCPA



Is the FCPA Just a Full-Employment Act for the Private Bar?

The cover story in the current issue of Forbes offers quite the take on the Foreign Corrupt Practices Act. Full story at: http://www.forbes.com/forbes/2010/0524/business-weatherford-kbr-corruption-bribery-racket_print.html

Enjoy,
Rick