I fear that the diffuse and ad hominem tendencies of Bruce Green's reply will distract attention from the core issues I sought to discuss.
First, I argued that issues of professional and academic integrity and accountability are raised when lawyers give advice with certain third-party effects under conditions of partial or complete secrecy. I proposed a variety of soft norms, including especially a presumptive duty of publicity.
Second, I criticized novel aggregate litigation arrangements applied by Leeds, Morelli & Brown (LM&B) in a series of campaigns involving many hundreds of clients, and I criticized the opinions of academic experts, including Green, who approved them.
Although I believe the discussion of LM&B is interesting in itself as an account of a novel litigation structure, I intended it to amplify my discussion of quasi-third-party opinion practice in two ways. First, it shows the significant role that professional, and especially academic, experts can play in legitimating transactions both before and after the fact. Second, if the reader agrees with my argument that these opinions were egregiously "wrong" (that is, either procedurally sloppy or substantively incorrect), then they provide anecdotal evidence that existing norms and practices are not adequate to safeguard the relevant public interests.
I am grateful for the portion of Green's response that engages these issues, and I reply to it here, looking at his discussion of LM&B first, and then his disagreement with my proposal for more transparency.
Law | Legal Ethics and Professional Responsibility
William H. Simon,
Transparency is the Solution, Not the Problem: A Reply to Bruce Green,
Stan. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/860