10.6092/issn.2531-6133/6918
Although the impact of conflicting interests is of constant concern to those in legal education and other fields, a recent scholarly article and an extensive analysis in the New York Times suggest the problem is more pressing than ever. In the context of legal scholarship the problem arises when a professor is, in effect, employed by two entities. Disclosure of possible conflicts is the most commonly proposed response. The article argues that disclosure is merely a risk shifting devise that does not fully address the issue of bias. It draws on comparisons with products liability and legal ethics to suggest that many conflicts should simply be avoided.
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Amy R. Mashburn
University of Bologna Law Review
Risk Shifting
Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant
Text.Serial.Journal
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Articles & Essays
2017-05-08
2017-05-05
2017-05-08
2018-12-14
1-22
UBLR
Amy R. Mashburn
2017/05/08
10.6092/issn.2531-6133/6918
1
University of Florida
2531-6133
1
Risk Shifting
en
22
Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant
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2
ARTICLES & ESSAYS                                                              https://doi.org/10.6092/issn.2531-6133/6918




Moonlighting Sonata: Conflicts, Disclosure, and the Scholar/Consultant

                         JEFFREY L. HARRISON & AMY R. MASHBURN†



TABLE OF CONTENTS: 1. Introduction; 2. Sources of Conflict; 2.1. Inherent; 2.2. Ambition
Based; 2.3. Avoidable; 2.4. Personal Development; 3. Disclosure in Other Contexts; 3.1.
Products Liability; 3.2. Legal Representation; 3.3. Comparing a.a.l.s. “Best Practices”; 4.
The Problem with Disclosure; 4.1. Risk Shifting; 4.2. Disclosure as Permission; 4.3.
Optimism and Self-Evaluation Biases; 5. Conclusion.


ABSTRACT: Although the impact of conflicting interests is of constant concern to those in
legal education and other fields, a recent scholarly article and an extensive analysis in
the New York Times suggest the problem is more pressing than ever. In the context of
legal scholarship the problem arises when a professor is, in effect, employed by two
entities. Disclosure of possible conflicts is the most commonly proposed response. The
article argues that disclosure is merely a risk shifting devise that does not fully address
the issue of bias. It draws on comparisons with products liability and legal ethics to
suggest that many conflicts should simply be avoided.




KEYWORDS: Conflicts of Interest; Disclosure; Ethics; Legal Practice; Risk Shifting




                                            UNIVERSITY OF BOLOGNA LAW REVIEW

                                                    ISSN 2531-6133

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           This article is released under the terms of Creative Commons Attribution 4.0 International License


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      1. INTRODUCTION

Although the impact of conflicting interests is a constant concern for those in
legal education and other annexed fields, a recent scholarly article1 and an
extensive analysis in the New York Times 2 suggest the problem is more
pressing than ever. In the context of legal scholarship the problem arises when
a professor is, in effect, employed by two entities. One of these employers, the
academy, and the broader profession in which it is positioned, academia, have
legitimate expectations of true scholarly work that reflects open-mindedness
and objectivity with respect to topic selection, analysis, and positions taken, if
any.3 In this context, the goal for the professor/scholar is to discover truths,
inconvenient and otherwise.4 In effect, the professor is comparable to the
employee of a think tank.

           The other employer, the retaining firm in which expertise is sold to
those with relatively deep pockets, certainly places great importance on clear
thinking but, ultimately and most often, has a desired end result in mind that
may shape the efforts and expressions of the professor. The goals of the
academy and the desires of retaining firms are in conflict at least some of the
time. Professors facing such conflicts are advised that resolution can occur by




†
    Professors of Law, Levin College of Law, University of Florida.

1
  Robin Feldman, Mark A. Lemley, Jonathan S. Masur & Arti K. Rai, Open Letter on Ethical Norms in
Intellectual Property Scholarship, 29 HARV. J.L. & TECH. 339 (2016).
2
   See Eric Lipton, Nicholas Confessore & Brooke Williams, Think Tank Scholar or Corporate
Consultant?      It    Depends      on    the      Day,     N.    Y. TIMES     (Aug.     8,    2016),
http://www.nytimes.com/2016/08/09/us/politics/think-tank-scholars-corporateconsultants.html.
3
  An example is found in the University of Florida regulations:(d) Statement on Professional
Ethics. l. The professor, guided by a deep conviction of the worth and dignity of the advancement
of knowledge, recognizes the special responsibilities devolving upon members of the profession.
The professor's primary responsibility to his or her field is to seek and to state the truth as he or
she sees it. To this end, the professor devotes himself or herself to developing and improving his
or her scholarly competence. The professor accepts the obligation to exercise critical self-
discipline and judgment in using, extending and transmitting knowledge. The professor must
never seriously hamper or compromise anyone's freedom of inquiry.
4
  This is in accord with every dictionary definition of “scholar.”




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being mindful of the dangers and making full disclosure to their readers. 5 In
the context of faculty scholarship, this means disclosing to readers any and all
information that would assist a reader in assessing the reliability of the
scholar’s work.

         This solution is inadequate for several reasons. First, the notion that
one may be sufficiently mindful of a conflict to offset its negative effects (some
of which may be very subtle) is flawed because it fails to account adequately for
the impact of optimism bias. The mindfulness approach assumes that
professors can “cure” such conflicts and prevent them from having an impact
on their scholarship by consciously paying attention to the possibility that
conflicts are, in fact, having an impact on their research and publication. The
ability to perceive the danger of an impact, however, will in many cases be
clouded by an unconscious bias that will lead the scholar to believe that such
effects are either, not occurring or are under his/her control. Any approach to
conflicts that relies excessively or exclusively upon self-policing will suffer
from this problem.

         Second, reliance upon disclosure as a cure seems to excuse the scholar
from responsibility for the effects of the conflict simply because the reader has
been forewarned. The ethical and practical implications of an easy out for the
scholar are troubling. The burden of conforming to the academy’s scholarly


5
  See A.A.L.S. Statement of Good Practices by Law Professors in the Discharge of their Ethical and
Professional Responsibilities: “A law professor shall disclose the material facts relating to receipt
of direct or indirect payment for, or any personal economic interest in, any covered activity that
the professor undertakes in a professorial capacity. A professor is deemed to possess an economic
interest if the professor or an immediate family member may receive a financial benefit from
participation in the covered activity. Disclosure is not required for normal academic compensation,
such as salary, internal research grants, and honoraria and compensation for travel expenses from
academic institutions, or for book royalties. Disclosure is not required for funding or an economic
interest that is sufficiently modest or remote in time that a reasonable person would not expect it
to be disclosed. Disclosure of material facts should include: (1) the conditions imposed or expected
by the funding source on views expressed in any future covered activity; and (2) the identity of
any funding source, except where the professor has provided legal representation to a client in a
matter external to legal scholarship under circumstances that require the identity to remain
privileged under applicable law. If such a privilege prohibits disclosure the professor shall
generally describe the interest represented. A law professor shall also disclose the fact that views
or analysis expressed in any covered activity were espoused or developed in the course of either
paid or unpaid representation of or consultation with a client when a reasonable person would be
likely to see that fact as having influenced the position taken by the professor. Disclosure is not
required for representation or consultation that is sufficiently remote in time that a reasonable
person would not expect it to be disclosed. Disclosure should include the identity of any client,
where practicable and where not prohibited by the governing Code or Rules of Professional
Conduct. If such Code or the Rules prohibit a professor from revealing the identity of the client,
then the professor shall generally describe the client or interest represented or both.”
http://washburnlaw.edu/facultystaff/otherpolicies/aalsgoodpractices.html




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ideal should, as a normative matter, stay with the scholar because it is an
essential component of his/her academic job and at the heart of the scholarly
function. The obligation to avoid conflicts and their negative effects should
also stay with the scholar because the cumulative effect of the widespread
abdication of responsibility for addressing conflicts through easy out
disclosures will, as a practical matter, result in available research being less
reliable. As serious as these problems are, however, they are not the core
problem with the disclosure approach.6

        This essay addresses the problem which is whether shifting the risk of
conflicted scholarship to those who pay the scholar’s salary and to the
consumers of his or her is work is appropriate. The disclosure approach
essentially shifts the risk of those conflicts to readers, listeners, and to
academic employers who have reasonable expectations of objective and open-
minded scholarship. Notably, by shifting the risk in this manner, the professor
is then able to serve two masters (and collect two paychecks).

        In the next section, we will discuss the sources of conflicts and we will
note that many are not avoidable, but some are. These “moonlighting”
activities can prove to be intellectually and financially rewarding for scholars.
In section III we will examine other instances –- products liability and legal
ethics -- in which disclosure is and is not regarded as sufficient as sufficient to
address “conflicted” scholarship and compare those with the standards in
academia. Next, we will search for a rationale, other than self-interest, for the
approach taken in academia. The final section argues that the “disclosure as
risk-shifting” approach is flawed because it does not have an apparent or
articulated rationale, but instead seems to reason backwards from a conclusion
that dual employment and compensation should be facilitated and justified. We
conclude that, in general, scholars should make a choice between scholarly
integrity and accepting payment above expenses for efforts outside that
sphere.




6
  A third possibility is that the availability of paid opportunities outside the academy may
influence the fields pursued and teaching preferences inside the academy.




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    2. SOURCES OF CONFLICT

    2.1. INHERENT
Some biases are inherent. Some of those we try to neutralize and others we
embrace. For example, everyone’s life experience will create in them
preferences about the way things should be as a normative matter. Even the
most ardent scholar cannot escape some influences that may prevent him or
she from being what might be called the “perfect scholar.” 7 In fact, if
disclosure happens in its full-blown form, every author would reveal his or
her, age, gender, race, socioeconomic background, education, employment
experience, and more. All of these factors impede the scholar’s ability to
remain objective. For example, a lower socioeconomic class person may be
reluctant to report that terminable-at-will employment has an upside and a
downside in terms of the welfare of those less well off.8 Although no one can
become the perfect scholar, the concept can be an aspirational ideal that
requires awareness of the pervasiveness of influences that may affect
scholarship and a commitment to keeping an open mind. Absent this
awareness, the author’s personal life experience may become a cause and
scholarship less objective. In these circumstances, scholars, rather than being
searchers for and reporters of the truth, may become convinced they already
know the truth and write what may be more accurately viewed as persuasive
briefs rather scholarship. Those known “truths” (and the scholars themselves)
may thus become more akin to clients, rather than scholars.

    2.2. AMBITION BASED
In the academic setting scholarship can have two purposes. One is to convey
information. The other one is to convey information about the author. These
two objectives may seem inseparable but for the ambitious law professor (or
one merely seeking to qualify for tenure), there can be a difference. In
addition, authors write for a number of audiences. These include second or


7
   The perfect scholars would be free of biases of any kind. This is, of course, an impossible ideal
and probably not uniformly desirable.
8
  One of the authors comes from a lower socioeconomic class and struggled for years about
whether to write an article that assessed the impact of limiting terminable at will employment
after realizing that some of the cost of the change would be borne by those the changes was
generally thought to benefit. The article was writtenand was followed by letter questioning the
author’s motives. See Jeffrey L. Harrison, Wrongful Discharge: Toward a More Efficient Remedy, 56 IND.
L. J. 207 (1981).




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third year students on law reviews, professors to whom the work may be
referred and, finally, the general public which includes attorneys and judges.

         An untenured scholar is in a difficult position. In some areas of legal
scholarship, such as, for example, antitrust,9 and environmental law,10
particular approaches and viewpoints dominate. This dominance produces a
priori assumptions and accepted “truths.” Young scholars write with the
awareness that their work must be reviewed by other law professors, many of
whom will likely be adherents to the dominant approach. Thus, particularly
early in their careers, scholars may shape their work to appease reviewing
professors whom they fear will be too quick to examine whether the young
scholar has adhered to known the “truths” of a prevailing approach or
dominant viewpoint. One concern is that the works of scholars who do not
conform to prevailing viewpoints will be subjected to greater and more
negative scrutiny than works that, in effect, “preach to the choir.” In this way,
the desire for tenure and a longer term career may conflict with expressions
based on objective findings. This effect cuts both ways. The young scholar may
choose to “preach to the choir” and overstate the support for convention or
avoid confronting convention.

         This conflict is hardly only experienced by young scholars. Mobility in
the profession is largely dependent on scholarship. That scholarship is first
assessed by second and third year law students and, on occasion, by professors
in specific areas. This creates a tension between the findings of a researcher
and his or her beliefs about what a second or third law student or a professor
to whom the work is referred may find appealing. For example, if influential
people in antitrust are unreceptive to behavioral economics, 11 as a matter of
professional strategy, it may be unwise to write about how behavior economics
might inform antitrust law. Moreover, in a context where impact is sometimes




9
   The so called Chicago approach stressing consumer surplus and allocative efficiency as opposed
to merely deconcentrating of economic power has been the mainstay of antitrust for nearly fifty
years. Lately it has come under increasing scrutiny.
10
   Scholarship in environmental law starts with the premise that nearly all environmental
measures should lean toward protecting the environment.
11
   See, e.g., Joshua D. Wright & Judd E. Stone, Misbehavioral Economics: The Case Against Behavioral
Economics, 33 CARDOZO L. REV. 1517 (2012).




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equated with frequency of citation, 12 the choice of topics and positions taken
may be a function of career aspirations as much as actual long term benefits of
the scholarship. In short, the conflict thus created is between long term
advancement in a discipline in which there are dominant beliefs and an
objective, open-minded presentation of ones ideas.

     2.3. AVOIDABLE
The sources of possible conflicts that are usually the subject of concern are
those that are avoidable, or perhaps, more accurately, invited. For law
professors, these sources of conflict range from representing clients to serving
as expert witnesses,13 being of-counsel to law firms, or simply consulting about
specific legal issues.14 In all of these cases, the danger becomes more serious if
the activity takes place at a level sufficient to affect the lifestyle of the
professor.

         It is important to keep in mind at this point that the relevant question
for purposes of this inquiry is whether the outside activity will come into
conflict the professor’s work as a scholar. Another way to ask the question is to
access whether any of the scholar’s outside activities has an impact on the
topic selected, the methodology employed, the expression of the results, or the
credibility of the scholar.

         In the case of the scholar/expert witness, there are numerous
safeguards – opposing experts, cross-examination – to protect the audience of
the actual testimony. On the other hand, positions taken as a scholar definitely
affect the marketability of the professor as expert. Anyone who has been
contacted to act as a potential expert knows that his or her research will be
examined very closely to determine whether he or she has written anything
that could be construed as inconsistent with the position taken as an expert.



12
   See Gregory C. Sisk, Valerie Aggerbeck, Robert Nick Farris, Megan McNevin & Maria Pitner,
Scholarly Impact Of Law School Faculties In 2015: Updating The Leiter Score Ranking For The Top Third, 12
U. ST. THOMAS L.J. 100 (2015).
13
   This will, of course, vary with the jurisdiction.
14
   See, text accompanying infra note 16. In some instances, “of counsel” law professors may
consult only with lawyers and not have their time billed to specific clients or matters.Firms may
retain professor-consultants for assistance of a general nature and may pay their consulting fees
from firm funds not attributable to a particular client or matter.When a client or a case is billed for
this time, however, it is likely that the law professor (if he/she is admitted to a bar), is, at a
minimum for conflicts of interest purposes, a lawyer of the firm and, in many cases, in an
attorney-client relationship with the firm’s clients for whom he/she provides legal services.




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For those dependent on expert witness activity, this may mean being careful
about taking strong positions or any positions at all as a scholar. 15

         Credibility as a scholar may also be affected by the outcome of
testimony. Taking positions as an expert that could not pass muster within the
profession may have an impact on the faith others are willing to afford the
expert’s     scholarly      efforts.    These      credibility     issues       have         occasioned
commentary on the hazards faced by scholars who are expert witnesses.
Perhaps the most well-known example of this involves Nobel Prize winning
economist Robert Lucas. He was described as having “disdain for reality” and
“abdicat[ing] entirely the concept of the independent expert witness.” 16 Some
may argue that cynicism about the activities of expert witnesses may have
reached the point that the credibility of the scholarship produced by
scholar/expert witnesses is unaffected by the scholar’s assumption of other
potentially-conflicting roles. If this is not the case, however, then the impact
is in one direction only which is to undermine respect for such scholarship.
           Law professors provide services to retaining firms in a variety of ways,
including being designated “of counsel” to firms. These positions may seem
relatively benign. One may wonder how being an occasional advisor to a law
firm could affect scholarship. It is important to keep in mind the person who is
“of counsel” is selling a product and that product must be worth it to the
retaining firm. Sellers in this market would be wise not to take positions in
scholarship that would be at odds with positions likely to be taken by the
firm’s clients. This, in effect, provides opposing counsel with effective
impeachment material and lessens the value of the scholar’s services as an
expert. Some scholars as consultants/experts/of counsel attorneys may,
because of their affiliation with retaining firms, author amici briefs as if they
are disinterested scholars who just happen to advance the positions those who
have retained them.

           Although the “of counsel” designation is variable and encompasses
several types of relationships, from an ethical perspective:

15
   The authors’ perspectives are informed by their own past experiences as expert witnesses and
consultants. One recalls an instance in which he was coauthoring an article in the field of antitrust
and was cautioned against mentioning possible anticompetitive conduct in a particular industry
because participants in that industry were prospective customers for expert services.
16
   BRAND NAME PRESCRIPTION DRUGS ANTITRUST LITIGATION, 1999 WL 33889(N.D. Illinois,
1999).




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        There can be no doubt that an of counsel lawyer (or firm) is "associated in"
        and has an "association with" the firm (or firms) to which the lawyer is of
        counsel, for purposes of both the general imputation of disqualification
        pursuant to Rule 1.10 of the Model Rules ... Similarly, the of counsel lawyer
        is "affiliated" with the firm and its individual lawyers for purposes of the
        general attribution of disqualifications …17

This means that for conflicts of interest purposes, the clients of the firm are
the clients of lawyers affiliated as “of counsel.” Consequently, law professors
who are “of counsel” may not view themselves as having clients, but, at least
for some purposes, they do. Among the duties lawyers owe to their clients are
duties of loyalty, confidentiality, and, most significantly, conflicts-avoidance.

       The affiliation with a firm may mean that scholarship that takes a
position contrary to the retaining or “of counsel” firm’s clients may
potentially generate conflicts (or at the very least, some concerns about
whether the firm’s clients will be displeased). A more subtle form of damage to
the scholarly mission occurs when the scholar unconsciously avoids taking
positions in anticipation of potential negative impact upon lucrative retention
arrangements.

       It is possible, at least in theory, that occasional consulting will have
little impact on scholarship. This is especially the case if payment does not
result in an adjustment in one’s life style. The principal problem arises if the
professor wants to be a repeat player. Nearly always, a consultant knows what
a client would like to hear. Perhaps the consultant cannot give the client that
specific message but measured tones and a lack of emphasis may mean more
repeat business than a truthful “that is a totally untenable position” especially
if means a loss of face for one of the “customers.” This, of course, does not
mean the professor’s scholarship is affected but the professor may increasing
become known as the “go to” person with clever ideas about how to avoid a
price fixing accusation or, for example, how to invoke the exclusionary rule.
Once that is the product being sold, it is a small step to lowering the quality of
the product by producing scholarship that would dilute this expertise.



17
  AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL
RESPONSIBILITY Formal Opinion 90-357 May 10, 1990 USE OF DESIGNATION "OF COUNSEL."




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      2.4. PERSONAL DEVELOPMENT
A version of avoidable conflicts that deserves specific mention concerns the
slippage between personal development as a scholar and remuneration. Robin
Feldman and others in proposing ethical standards for intellectual property
professors write:

              IP scholars have become more engaged in policy advocacy, the writing of
              amicus briefs, and the practice of law. In general, we think this is a salutary
              development.     Courts    regularly   complain    about   scholarship         being
              unconnected to the real world, and law students worry that they are not
              being trained to succeed in practice. Greater engagement between scholars
              and the world of practice can help solve both problems and can also bring a
              thoughtful, more unbiased perspective to legislative and judicial debates
              traditionally dominated by interested parties.18

The authors note the importance of the participation of law professors in the
“real world” and this seems indisputable. This does not address, however, the
issue of whether the nature of those “real world” activities should be
determined by the market. There is no necessary correlation between what will
enhance the development of someone in the role of scholar and the money to
be earned by selling expertise. This might be contrasted with a context in
which professors are prohibited from for earning outside income other than
expenses. Rather than expertise being allocated to those who can pay and,
perhaps, pay the most, outside employment would be steered in the direction
of the activities most likely to enhance scholarly development. The distortion
introduced into the process of becoming an accomplished                                          scholar is
exacerbated by the possibility that research and teaching preferences will be
influenced by the potential lucrative consulting opportunities available in some
fields but not others.



      3. DISCLOSURE IN OTHER CONTEXTS

It is instructive to compare disclosure by legal scholars with comparable
practices in other contexts. For example, the purchase of a product that carries
a warning label – a form of disclosure - can be viewed as form of informed


18
     Feldman et. al., supra note 1, p. 339.




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(implied) consent.19 In the context of legal representation in some cases,
informed consent may permit the formation of an attorney client relationship
even where there are potential conflicts. Of course, in both regimes there are
times when disclosure and consent, whether express or implied, is not enough
to fully protect the less informed party and the transaction is not permitted.
The question is where disclosure by scholars falls? Is it sufficient to alert
readers to the possible biases or should those who aspire to be scholars simply
avoid conflicts?

     3.1. PRODUCTS LIABILITY
In the context of manufactured products, the issue is when a manufacturer can
escape liability by noting a dangerous aspect of the product. This may not seem
to fit the think tank context but in fact it does. In both cases the conflict is
financial. In the case of the profit maximizing producer, the product could be
made safe but it is not in the producer’s profit maximizing interests. In the
think tank context, the consequences are also financial. Here too the scholarly
output could be made safe in the sense of being unaffected but that is not in
the self-interest of the scholars.

           In theory, disclosure that a product may be dangerous makes the most
sense when the cost of avoiding harm is lower for the consumer than it would
be for the manufacturer and others who would be affected. In particular, it is
important to weigh the impact on those negatively affected by barring the
marketing of the product altogether.20 For example, small toys can be harmful
to children below a certain age who like to put things in their mouths.
Presumably a responsible parent realizing this, will not allow children below a
certain age to have access to toys with small components. Unfortunately this is
not always the case but the solution is to remove the warning and not to
market toys that might be ingested. Although it is difficult to place values on
human life, if forced to do so21 the cost of eliminating the harm completely
likely exceeds the cost of parental attention that either keeps young children


19
   It most, thought, it is consent to some probability of harm. Whether it is rational to consent in
this instances can be subject to various biases. See infra notes 45-52.
20
   See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco
Products to Protect Children and Adolescents, 69 FR 41314.
21
   Although difficult and likely impossible, placing a value on life is implicit in a great number
regulations and funding decisions ranging from the installation of highway guard rails and the
setting of speed limits to funding of medical research.




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away from small toys or involves close supervision. Shifting the risk to some
parents some of the time arguably makes sense.

             This might be contrasted with automobile airbags. Automobiles could
be marketed without airbags but include a disclosure/warning that collisions
may result in serious bodily harm or death. Buyers could then opt to have
airbags installed. This is likely to be at a much higher per unit cost that would
be incurred under conditions of mass production. Or they could simple accept
the risk of injury to themselves and others. The magnitude of this risk is
unknown and, unlike the cautious parent, controlling one’s own actions does
not reduce the risk since the harm can be caused at any time by a third party.
The automobile buyer is, thus, like the reader of scholarship in that he or she is
ill-equipped to assess risk of bias.

      3.2. LEGAL REPRESENTATION
A similar pattern emerges in the context of the handling of conflicts of interest
under attorneys’ rules of professional responsibility and related bodies of law.
In the legal ethics context, “curing” a conflict of interest means that the
measures which have been taken are sufficient under governing law to allow
all or some part of the conflicted legal representation to go forward or, if no
such curative measures are available, declining or terminating the conflicted
representation. Many attorney-client conflicts of interest are curable through
disclosure and consent, but some are not. 22 The concepts of consentable and
unconsentable conflicts of interest in legal ethics are useful in thinking about
whether conflicts in scholarship should be deemed curable through consent as
a form of risk-shifting. This discussion first describes how legal ethics defines
informed consent and then turns to the ethical notion of the unconsentable
conflict.

            When the ethics rules and the common law of conflicts do allow consent
by potentially affected clients to cure a conflict of interest in legal
representation, their consent must be “informed.”23 Because disclosure and
consent play such important roles in the management of conflicts in legal
representation, the relevant rules of professional responsibility provide
extensive and nuanced guidance to lawyers. It is instructive for comparison

22
     Cf. MODEL RULES OF PROF’L CONDUCT R. 1.7 (Discussion Draft 1983).
23
     MODEL RULES OF PROF’L CONDUCT R. 1.7 (b)(4), R. 1.9 (a), R. 1.0 (e) (Discussion Draft 1983).




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with the treatment of disclosure as a cure to conflicted scholarship to examine
some of that guidance.

        “Informed consent” is defined in the Model Rules as that which
“denotes the agreement by a person to a proposed course of conduct after the
lawyer has communicated adequate information and explanation about the
material risks of and reasonably available alternatives to the proposed course
of conduct.”24 The Comments to those rules provide that lawyers “must make
reasonable efforts to ensure that the client or other person possesses
information reasonably adequate to make an informed decision.” 25 That same
comment also observes that:

         [o]rdinarily, this will require communication that includes a disclosure of
         the facts and circumstances giving rise to the situation, any explanation
         reasonably necessary to inform the client or other person of the material
         advantages and disadvantages of the proposed course of conduct and a
         discussion of the client's or other person's options and alternatives.26

The rules of professional conduct also provide lawyers with explanations
regarding the relevant factors to use in assessing the adequacy of the provided
disclosure:

         In determining whether the information and explanation provided are
         reasonably adequate, relevant factors include whether the client or other
         person is experienced in legal matters generally and in making decisions of
         the type involved, and whether the client or other person is independently
         represented by other counsel in giving the consent. Normally, such persons
         need less information and explanation than others, and generally a client
         or other person who is independently represented by other counsel in
         giving the consent should be assumed to have given informed consent.27

The comment to Model Rule 1.7 explains that “[i]nformed consent requires
that each affected client be aware of the relevant circumstances and of the
material and reasonably foreseeable ways that the conflict could have adverse
effects on the interests of that client.”28 For purposes of our comparison, this


24
   MODEL RULES OF PROF’L CONDUCT R. 1.0 (e) (Discussion Draft 1983).
25
   MODEL RULES OF PROF’L CONDUCT R. 1.0 (e), cmt. 6 (Discussion Draft 1983).
26
   MODEL RULES OF PROF’L CONDUCT R. 1.0 (e), cmt. 6 (Discussion Draft 1983).
27
   MODEL RULES OF PROF’L CONDUCT R. 1.0 (e), cmt. 6 (Discussion Draft 1983).
28
   MODEL RULES OF PROF’L CONDUCT R. 1.7 (e), cmt. 18 (Discussion Draft 1983). The information
required depends on the nature of the conflict and the nature of the risks involved.




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obligation to ensure that the client is not only given information, but also
receives a clear explanation of what that information means for the client’s
interests, i.e. precisely how the client’s interests may be implicated, is
important. It indicates that the focus in the legal ethics regime is always on
ensuring that disclosure and consent are meaningful vis-à-vis the goal of
protecting the client’s right to conflict-free and competent representation.
Significantly, the focus is not on facilitating the attorney’s desire to represent
as many clients as possible.

        Disclosure and consent in this context assume the role of a warning
label in the example of products liability. In effect, the client is viewed as being
sufficiently informed to bear any risks of associated with possible conflicts. In
addition, there may be advantages to the client in not applying the
unconsentable conflict rule. For example, suppose two brothers ask a lawyer to
represent both of them in their effort to purchase a restaurant. One of them is
a chef; the other has money for the purchase price; both will sign a guarantee
on a required loan. With fully informed consent (which would include
explaining how their interests might diverge and that the lawyer may not be
able to keep information one of them tells him from the other), the lawyer may
represent both brothers.29 Similarly, a couple may wish to obtain an amicable
dissolution of their marriage. In many instances, a lawyer may, in some
circumstances, represent both parties in the negotiation of the property
settlement to be submitted to the court in the proceeding. 30




29
  See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 illus. 3 (2000).
30
  See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 illus. 8 (2000).This illustration is
subject to exceptions and qualifications that vary significantly from jurisdiction to jurisdiction.




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When disclosure and consent are not sufficient, the conflict is thus deemed
“unconsentable”,31 and representation is not permitted. In the products
liability context this is comparable to either removing a product from the
market or permitting its sale only if the product is modified. 32 Three types of
unconsentable conflicts are relevant here. One is the direct adversity-positional
variety. For example two parties vying for the same broadcast license could not
be represented by the same lawyer.33 In another type of scenario, a relationship
with a prior or concurrent client may make it impossible to disclose enough
information to result “informed consent.”34 Finally, under the applicable
standards dual representation is not permitted, even with consent if no
objectively reasonable lawyer would conclude that he or she in this instance
could provide competent and diligent representation to both parties. 35 In these
situations, no amount of disclosure will cure the conflict.

     3.3. COMPARING A.A.L.S. “BEST PRACTICES”
It is illustrative to compare what it takes to cure a conflict with consent under
products liability law and legal ethics with the treatment of consent under the
Association of American Law Schools (hereinafter A.A.L.S.) “Best Practices.”
The comparison is startling. In products liability law and under the legal ethics
rules when disclosure is not sufficient to protect the purchaser or the client,

31
   Comment to MR 1.7 Comment [28]. Whether a conflict is consentable depends on the
circumstances. For example, a lawyer may not represent multiple parties to a negotiation whose
interests are fundamentally antagonistic to each other, but common representation is permissible
where the clients are generally aligned in interest even though there is some difference in interest
among them. Thus, a lawyer may seek to establish or adjust a relationship between clients on an
amicable and mutually advantageous basis; for example, in helping to organize a business in
which two or more clients are entrepreneurs, working out the financial reorganization of an
enterprise in which two or more clients have an interest or arranging a property distribution in
settlement of an estate. The lawyer seeks to resolve potentially adverse interests by developing the
parties' mutual interests. Otherwise, each party might have to obtain separate representation,
with the possibility of incurring additional cost, complication or even litigation. Given these and
other relevant factors, the clients may prefer that the lawyer act for all of them.
32
   A further analogy can be found the case of the Food and Drug Administration and finding that
pharmaceuticals can be marketed as safe and effective but with warning labels as opposed to
drugs that are not approved at all.
33
   RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 21 illus. 1 (2000).
34
   MODEL RULES OF PROF’L CONDUCT R. 1.7 (e), cmt. 19 (Discussion Draft 1983).] Under some
circumstances it may be impossible to make the disclosure necessary to obtain consent. For
example, when the lawyer represents different clients in related matters and one of the clients
refuses to consent to the disclosure necessary to permit the other client to make an informed
decision, the lawyer cannot properly ask the latter to consent. In some cases the alternative to
common representation can be that each party may have to obtain separate representation with
the possibility of incurring additional costs. These costs, along with the benefits of securing
separate representation, are factors that may be considered by the affected client in determining
whether common representation is in the client's interests.
35
    Model Rule 1.7 provides: (1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client.




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the outcome is that the transaction or the representation is not allowed to go
forward. As explained below, in the case of legal scholarship, however, when
disclosure presents a similar inconvenience, the result is to allow the dual role
and, astonishingly, to require less disclosure.

         More specifically, conflicted scholars are told to disclose essentially two
types of information. First, the material facts relating to receipt of direct or
indirect payment for, or any personal economic interest in, any covered
activity that the professor undertakes in a professorial capacity. 36 Disclosure of
material facts should include:

           (1) the conditions imposed or expected by the funding source on views
           expressed in any future covered activity; and (2) the identity of any funding
           source, except where the professor has provided legal representation to a
           client in a matter external to legal scholarship under circumstances that
           require the identity to remain privileged under applicable law. 37

Note the advice given when the exception arises: “[i]f such a privilege
prohibits disclosure the professor shall generally describe the interest
represented.”38 In many respects, this rule makes sense since it puts the
interests of a client ahead of those who consume scholarship. The foregone
possibility comparable to that found in the context of products and legal ethics
is not to engage in outside employment that creates the conflict.

          Law professors must also disclose:

           the fact that views or analysis expressed in any covered activity were
           espoused or developed in the course of either paid or unpaid representation
           of or consultation with a client when a reasonable person would be likely to
           see that fact as having influenced the position taken by the professor.39

Again, notice that the treatment of the issue when fully informed “consent”
cannot be obtained:

           Disclosure should include the identity of any client, where practicable and
           where not prohibited by the governing Code or Rules of Professional
           Conduct. If such Code or the Rules prohibit a professor from revealing the



36
   See supra note 5.
37
   See supra note 5.
38
   See supra note 5.
39
   See supra note 5.




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           identity of the client, then the professor shall generally describe the client or
           interest represented or both.40

As has been explained above, the ethics rules reach a different result: they do
not allow the lawyer to go forward with conflicted representation, if
obligations to others prevent the disclosures necessary for fully informed
consent. Instead, they compel the lawyer to decline or withdraw from the
representation. Again, the rules seem to have the priorities correct but neglect
the possibility of simply not engaging in an activity that creates the conflict.
Both disclosure requirements seemed more attuned with allowing scholars to
maximize their income, rather than encouraging the best possible efforts to
avoid conflicts in the first place.




     4. THE PROBLEM WITH DISCLOSURE

     4.1. RISK SHIFTING
As noted, the issue of whether disclosure is adequate can be distilled to how
the risk of a lack of objectivity should be allocated. “Should,” of course, carries
a normative connotation and could be equated with notions of justice or
fairness. There are a variety of ways to approach the issue. For example, the
Categorical Imperative would mean asking whether shifting the risk by virtue
of disclosure is using readers as means to ends. A quasi-Rawlsian approach
would ask what would be chosen behind a veil that meant individuals did not
know if they were likely to be among the conflicted or among those who are
consumers of possibly conflicted work posing as scholarship. An economic
approach, similar to that described above with respect to products, would be to
ask which party could protect against the risk at the lower cost.

          The answer to the risk shifting question may vary with the approach
taken and the projected audience41 but there are strong arguments for not
allowing the risk to be shifted by way of disclosure. For example, from the
economic perspective the question is whether legal scholarship is more like



40
   See, e.g., supra note 5.
41
   Given the number of ways conflict can arise and the nature of legal scholarship, it is possible it
is already taken with a grain of salt. Like all law professors we would like to work from the
premise that this is not the case.




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toys with small parts or automobiles without airbags. The airbag analogy is
more apt because the reader has no way to gauge the actual level of the risk.

        Almost certainly the cost of recognizing existence of the bias,
determining its impact, and discounting the worth of the scholarship based on
that analysis is a huge one for the reader. In fact, to be perfectly safe the reader
would be required to discount the validity of anything carrying a disclosure. 42
Interestingly, the cost to the scholar as a scholar is also high in that
scholarship with a warning label is likely to be less valued.43 Moreover, a
simple rule against accepting remuneration above expenses would mean
consulting     is   allocated     in   a   manner      most     consistent         with       scholarly
development.

        From the point of view of the Kantian Categorical Imperative the
answer also seems fairly straight forward. Those who moonlight and disclose
are asking readers to take on the risks of conflicts of interest that they have
created. In return for consulting and disclosing the scholars receives
intellectual stimulation and money. The readers become the means to
achieving these ends. The problem is that these ends are very different. It is
illogical to think the scholar truly interested in intellectual stimulation would
only take advantage of those opportunities if compensated. Thus, even with no
payment, development as a scholar would occur. The leads to the stark
conclusion that scholar/consultants are asking their readers to bear the risk of
avoidable bias primarily in order to allow them to earn extra income.

        The Rawlsian approach is more difficult. It requires one to envision a
situation in which people not knowing if they are to be consumers or producers
are asked if a disclosure rule would be accepted. On a broader perspective the
issue is akin to whether people would prefer a society in which statements by
others were dependable or, perhaps, one like our own in which nearly all
statements are discounted for the possibility of exaggeration, imprecision, or
fabrication. Two added pieces of information would also be available behind


42
    Eliminating all disclosure requirements would exacerbate the problem in that the reader might
well assume that all works are subject to conflicts.
43
   This economic analysis can be expanded upon by asking if those made better off by a rule
allowing moonlighting and disclosure could compensate those who are worse off by virtue
protecting against bias. This would be an application of the Kaldor-Hick or wealth maximizing
standard of efficiency but the issue still comes down to which party is, at the lower cost, able to
guard against the risk.




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the veil. The first this that only a small number of those with elite educations
would become the producers. Further, this small group would be able to earn
modest to significant sums of money by taking on the moonlighting activities
that then, sometimes, intentionally affect their veracity. The twist here is that
even those profiting from the ability to shift the risk of their own biases will be
vulnerable to the same lack of dependency when it comes to the work of
others. In short, everyone is negatively affected and very few are able to
benefit. If one follows the Rawlsian assumption of risk aversion, adoption of a
“disclosure is enough” rule seems unlikely.

            Although there is room for debate, it is likely that the risk shifting
implicit in disclosure is not justified by any number of approaches to fairness
or efficiency. On final notion that should be dispensed with is the possible
argument that by reading an article that includes a disclosure, the reader has
thereby consented to whatever bias the article contains. This would be like
saying that the parent of the child who swallows a small toy has consented to
the harm caused because there is warning label. This notion of consent is
similar to one advanced by Richard Posner in the 1980s and confuses risk with
the actual harm that could result from that risk.44 If this is the proper notion of
consent then every driver involved in a car crash could be said to have
consented to that crash even though the fault was that of another driver.

      4.2. DISCLOSURE AS PERMISSION
Although there appears to be little written on the topic, it makes sense to pose
the question of whether a general disclosure requirement would increase or
decrease the instances of bias. In effect, could disclosure have a liberating
effect because once the risk of bias has been shifted, those who might be biased
may be inclined to lower their efforts to remain objective? Conversely, does the
requirement of disclosure cause think tank employees to be more careful? In
effect, they do not want the implications of the disclosure to be proven true.

           There appears to be no answer to this question. The cynical view has an
economic flavor to it and is understood by thinking in terms of the small toy
example. If there is no liability for harm caused by swallowing small toys it
lowers the manufacturing costs which generally means increase production.


44
     See RICHARD ALLEN POSNER, THE ECONOMICS OF JUSTICE 94 (1981).




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Similarly, a professor may reason, perhaps subconsciously, that he or she
cannot be embarrassed by biased work since the possibility of bias has already
been communicated. It is far-fetched to think that scholars would consciously
use the risk shifting character of disclosure as a justification for known bias.
On the other hand, it is not unreasonable to think in terms of a writer lowering
his or her guard while under the impression that disclosure fulfills any
obligations to readers. A less cynical view is that having been required to
disclose the writer will be inclined to prove the implications of disclosure
wrong and be especially fastidious about keeping outside interests at bay.

     4.3. OPTIMISM AND SELF-EVALUATION BIASES
Regardless of whether one chooses the cynical or optimistic view of the
possibly conflicted writer, there is a significant likelihood that both authors
and readers will be affected by the optimism bias 45 or self-evaluation bias46 or
both. The optimism bias usually comes into play when people are asked to
estimate or consider the likelihood of being negatively affected by a bad event.

         A    substantial      literature      illustrates     that    they      underestimate                the
probability of the event affecting them.47 These range from the likelihood of
illnesses48 to auto accidents.49 The optimism bias can be applied to the issue of
conflicts of interest by viewing the professor as asking him or herself whether
he or she is as likely as the average person to allow outside interests to
interfere with topic selection, analysis, objectivity, or presentation. If the
optimism bias holds, most individuals will believe their efforts to be more
objective than average. Of course, it is not possible for everyone to be above
average. In effect, by referring to oneself, a bias is introduced. The optimism
bias is usually found when people are asked to consider negative events. Robert
Cooter, however, expands to a more general description: “[T]he psychological

45
   See generally Neil D. Weinstein & William M. Klein, Unrealistic Optimism: Present and Future, 15 J.
SOC. & CLINICAL PSYCHOL. 1 (1996). See also Christine Jolls & Cass R. Sunstein, Debiasing Through Law,
35 J. LEG. STUD. 199 (2006); Paul Slovic, Do Adolescent Smokers Know the Risks?, 47 Duke. L. J. 1133
(1998).
46
    See generally Robet H. Gramzoq, Andrew J. Elliot, Evan Asher & Holly A. McGregor, Self-
Evaluation Bias and Academic Performance: Some Ways and Some Reasons Why,37 J. Rᴇꜱ. IN PERSONALITY
41 (2003)
47
   See generally Christine Jolls, Behavioral Economics Analysis of Redistributive Legal Rules, 51 VAND. L.
REV. 1653, 1658-1663 (1998).
48
   See Neil D. Weinstein, Unrealistic Assumptions about Future Life Events, 39 J. PERSONALITY & SOC.
PSYCHOL. 806 (1980).
49
   See David M. Dejoy, The Optimistic Bias and Traffic Accident Risk Perception, 21 ACCIDENT ANALYSIS &
PREVENTION 333 (1989).




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origin of the bias toward optimism is believing that one’s own actions are free
from fault, or, in a word, self-righteousness causes optimism.”50

         Cooter’s broad description probably is more in line with what is called
the self-evaluation bias. That bias can be negative or positive; people may over
or underestimate their abilities. Most people, though, overestimate their
ability51 and it is not hard to imagine that those involved in outside
employment overestimate their ability to keep their two “masters” separate.
The self-evaluation or self enhancement effect has been found to be correlated
with narcissism and ego involvement but not with higher levels of
performance.52 What these areas suggest is that even if one takes the benign
view and believes those who are potentially subject to conflicts are mindful of
possible effects and try hard to avoid the impact of outside interests on their
scholarship, they are likely to over-estimate their ability to succeed.




     5. CONCLUSION

The prevailing A.A.L.S. approach to conflicts in scholarship seems to be a
solution arrived at by reasoning backwards from a conviction that scholars
should be allowed to assume these dual roles. This is in stark contrast with
other more consumer oriented, client protective approaches. It may be
premised in part on an a priori on the assumption that disclosure produces
greater objectivity in scholarship. Not only is this assumption open to question,
but the availability of the disclosure option may, in fact, be producing less
objective scholarship because it gives scholars license not to worry about the
potential impact of conflicts. The perverse effect of the disclosure requirement
would thus be to produce less objective scholarship.

         Some may argue in favor of the A.A.L.S. disclosure approach because
without the incentive of outside income, scholars would be less engaged in real
life legal processes and that such engagement is particularly valuable for legal
scholars. This assumption also seems open to question. Many legal scholars

50
   See Robert D. Cooter, The Objective of Private and Public Judges, 41 PUBLIC CHOICE 107 (1983).
51
   See Mark D. Alicke, Global Self Evaluation as Determined by Desirability and Controllability of Trait
Adjectives, 49 J. PERSONALITY & SOC. PSYCHOL. 1621 (1985). Constantine Sedikides & Aiden P. Gregg,
Self-Enhancement: Food for Thought, 3 PERSP. ON PSYCHOL. SCI. 102 (2008).
52
   See Richard W. Robins & Jennifer S. Beer, Positive Illusions About the Self: Short-Term Benefits and
Long-Term Costs, 80 J. PERSONALITY & SOC. PSYCHOL. 340 (2001).




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would, as long as their expenses were paid, engage in outside activities for
educational purposes, to enrich their research, for a change of pace, and to
fulfill the service components of their jobs. Moreover, the choice of where to
lend expertise would likely be more in line with actual scholarly development
because financial incentives would be muted. In fact, the outcome may very
well be an allocation of expertise that benefits the have-nots as well has the
haves. This is not, however, to say all bias would be removed but at least
avoidable bias would be limited.

        The principal drawback with the disclosure solution is that it simply is
not designed to address the core issue: treating less than fully informative
disclosure as an accepted and sufficient cure to conflicted scholarship blurs the
lines between academies and firms, between scholars and consultants, and
between scholarship and advocacy. This outcome is undesirable for a number
of reasons. Society depends upon its universities and its scholars to provide
non-partisan, objective, expertise-driven knowledge, which is difficult to
obtain elsewhere. The knowledge shaped by special interest or position-based
advocacy is unlikely to be politically, socially, or theoretically neutral in its
cumulative effects, nor is such knowledge equitably accessible to all of those
wishing to advance a partisan view or position. Finally, if scholars are not
careful to avoid the impact of the conflicts this article identifies and the lines
are further blurred, consumers may either mistake advocacy for scholarship or
significantly discount all scholarship because they assume it is advocacy.




                                       22
