The Corporate and Securities Adviser, The Public Interest, and Professional Ethics

It is the thesis of this Article that we, as a society, need to make deliberate decisions about the proper role of the corporate adviser, and, when that function has been defined, to develop a structure within which it can be performed. As the Article makes clear, the logical choices involve what might be described as either revolutionary change or reactionary change. That is, the current trends should either be accelerated or reversed; the present situation is intolerable. While the author will contend that the case for shifting into reverse is more persuasive, getting into a gear, and out of the current “neutral drift,” is probably more important than the selection of the appropriate gear.

The specific question to which much of this Article is addressed is whether the corporate adviser’s present–or at least recently past–role as confidant of management, exercising independent judgment and moral suasion to affect client behavior, should be changed, as it is now changing, to a function autonomous of management, with primary loyalty to the general public. The development of that public function is probably most apparent in the treatment of securities lawyers, and it is upon them that the Article will focus. It should be obvious, however, that the factors influencing the role of the securities law adviser eventually will also affect the tax lawyer, the antitrust adviser, the estate planner, and all other practitioners whose function is advisory rather than adversary in nature. Whatever role it is that we desire corporate advisers to fill, there is a desperate need for a new Code to reflect their appropriate duties; that, too, is given attention in this Article.