The case of David vs. Goliath. On legal ethics and corporate lawyering in large-scale liability cases

Abstract

ABSTRACT A classic avenue that victims can take to hold a corporation to account and obtain redress for the harms they have suffered is civil litigation. In the past decades, such attempts have been pursued against corporations in the tobacco industry, the pharmaceutical industry, the asbestos industry or industries working with asbestos and, more recently, the extractive industries. However, it is notoriously difficult for victims whose rights have been violated by corporations to obtain effective redress in civil procedures. A rich body of burgeoning scholarly literature and policy documents has addressed the extent to which systematic and institutional factors are obstacles to victims seeking justice for corporate misconduct. In this article, we will not focus on these systemic and institutional factors but on the role of corporate defence lawyers as their functioning also impacts the capacity of victims of corporate wrongdoing to effectuate their rights. We will address the question of what can be expected from a legal-ethical point of view from corporate defence lawyers advising and representing their corporate clients in large-scale civil liability cases. As a partial answer, we will develop a critique of amoral lawyering as a working philosophy in this context. In addition, we will touch upon the feasibility of a possible alternative.