Reverse olfactory reference disorder

Clients can't be smelt, even when they pong ... The GFC brought on with the valuable assistance of commercial lawyers ... They may not understand the documents ... But they understand how to bill ... Tulkinghorn on involuntary inertia disorder

The Australian Bureau of Statistics series Legal Services Australia for 2007-08 shows that "commercial law" (e.g. mergers, acquisitions, securities) took in fees of $4,251 million out of total fees of $12,664 million.

Fee income for barristers  from the same source of work totalled $378 million, out of a total fees of $1,382 million, making it their biggest source of fees too.

The ABS glossary says that "commercial" refers to legal work concerned with commercial transactions between businesses, and the fulfilment of contracts.

For the most part, "commercial lawyers", especially those in the large law firms, are not practising law at all.

However, pretending that they are, they crowd in under the profession's monopolistic umbrella and insert themselves into big transactions between businesses.

Once they are happily esconced in "commercial law" divisions in large law firms (in some sort of group marriage that will no doubt eventually earn the approbation of politicians if there are votes in it) they can beseech their litigation lawyer partners (and their partners' brethren, the judges) to ensure that the law looks after commercial lawyers as well as it looks after litigation lawyers.

The litigation lawyers in law firms will demand their price: a generous slice of the gargantuan "fees" (essentially commissions) that commercial lawyers "earn" on big deals.

Protection is needed because quite a few deals have got a lot of dishonesty in them, and commercial lawyers are often up their necks in it.

The Global Financial Crisis, for example, got going because lots of unsafe transactions had been built (by commercial lawyers) on shonky subprime mortgages.

UK law professor John Flood (together with E. Skordaki) in Structuring Transactions: The Case of Real Estate Finance says:

"Although a number of institutions participated in the creation of the [subprime mortgage] market, e.g. investment banks, mortgage banks, credit rating agencies, hedge funds, mono-line insurers, crucial to the piecing together of the market was the documentation produced by the law firms."

As these documents unravel, one would have expected the civil and criminal courts to become full of commercial lawyers explaining (through their litigation lawyers) how all the fraud stuff was done by the clients, and that all the commercial lawyers ever did was pure lawyering.

Walker with clientIn 2005 Bret Walker SC said:

"In many cases, the commercial lawyers are really part of the clients' entourage…..Perhaps it is time for that division to be recognized formally: by the business-services part of the legal profession, the lawyers closest to the big money of their business clients, having nothing really to do with the general corpus of law and no real interest in the administration of justice, to leave the legal profession and join with the management consultants, accountants, finance brokers and merchant bankers."

It is truly amazing how the perceptive minds of commercial "lawyers" are so inadequate when it comes to divining what their clients are actually up to.

After all, as  Richard, a partner at Allen & Overy, says, in its video The Deal:

"The job of a commercial lawyer is as much about understanding the client business and the people that you're dealing with as it as about knowing the law and you have to be able to show that interest and it has to be a real interest." 

Can one do "lawyering" if one can't understand the transaction?

Gruen: no one understood GFC instrumentsOn June 16, 2009 David Gruen, head of the macroeconomic group at the Australian Treasury, gave a speech to the Sydney Institute about the Global Financial Crisis. 

Speaking of the wider causes, he said:

"First, financial instruments became so complex that eventually literally no-one understood fully the nature of the instruments they were buying and selling."

He quotes Andrew Haldane, from the Bank of England, as saying that an investor in a Collateralised Debt Obligation Squared (CDO2) ...

"would need to read in excess of one billion pages to understand fully the ingredients ['billion" is not a misprint]. With a PhD in mathematics under one arm and a diploma in speed-reading under the other, this task would have tried the patience of even the most diligent investor."

There is a way to find out what the GFC lawyers were doing and that is by reading their bills carefully.

In the US the $2 billion (non-GFC) Refco fraud is playing out in court. Refco's outside lawyer Joseph Collins was accused of preparing documents that were "full of lies".

Collins: seven years porridgeGovernment witnesses at the trial worked to put Mr Collins "at the center of the action".

Collins said he "delegated" the drafting of documents.

"I didn't personally spend a lot of time. I delegated them... I didn't structure them. I didn't negotiate them. I didn't talk to customers about them. They just didn't require much of my time."  

The prosecutor, Mr. Bach, projected on a large screen Collins' time sheets for 2000 through to 2005.

In 2002, on Refco alone, he billed 1,745 hours. The other years had similar numbers. Bach then pulled out stacks of documents that were roughly the size of two New York City phone books.

They were the pre-billing records. The stack represented pre-billing records for only a month and a half.

The jury didn't buy it and he is now serving seven years jail.

Never mind, there's always the medical route to fall back on when the legal going gets tough, and this will call for some fancy litigation footwork.

Might I suggest RORD?

People with "olfactory reference disorder" think they pong when they don't.

Commercial lawyers often suffer from "reverse olfactory reference disorder" (RORD).

They think what their client is doing doesn't pong, when in fact it does.

RORD is usually linked to "involuntary inertia" disorder, creating the sort of lawyers that dishonest clients want: lawyers who can't smell anything bad, but if they do accidentally get a whiff,  then they are psychologically incapable of doing anything about it.

Involuntary inertia disorder has been applied (in a case of a barrister not filing tax returns for 12 years) by no less an authority than the NSW Legal Services Tribunal in 1977.

Despite criticism of that decision from a leading Australian legal ethicist the NSW Bar Association did not appeal.

If RORD is not a goer, then another defence that litigation lawyers might explore is that the commercial lawyers didn't have a clue what they were doing.

In 2009 in the UK ...

"When Phoenix's acquisition completed, [UK law firm] Eversheds partner Mike Seabrook sent the following message: 'Congratulations and thanks to everyone for a great job in completing Phoenix within an impossible timetable - even if we don't know what we have bought or what any of the agreements say!!'."

They only time they knew what they were doing was when they were formulating the bills.