Response to Painter

Abstract

Professor Painter's excellent article argues that interjecting lawyers into the regulatory game played by firms and governmental agencies might foster socially-desirable cooperation. In particular, he demonstrates that regulators can manipulate the payoffs awarded to attorneys to provide them with incentives to influence their clients to behave better. Even though Painter may use the adjectives "game-theoretic" and "contractarian" to organize his two major arguments, it might be clearer and perhaps more parallel, to distinguish between "reputational" (or non-legal) and "legal" determinants of lawyers' cooperative payoffs. In a nutshell, the "game-theoretic" section of the article emphasizes that because lawyers need to represent multiple clients, lawyers will want to establish cooperative reputations. Painter applies this analysis not only to firm lawyers who would fear that defecting from cooperation in one case will undermine their ability to effectively represent other clients dealing with a particular agency, but also to agency lawyers. Even agency attorneys who currently represent only one (agency) client may wish to establish a reputation for being neither a "pushover" nor a "jerk"—so that they can improve their future job prospects. The core game-theoretic idea is that the structure of lawyers' payoffs—because of the multi-client reputational concern—might facilitate cooperation especially when "(i) firm lawyers and agency lawyers are repeat players who deal with each other on multiple occasions, (ii) noncooperative conduct by either is easy to detect, and (iii) information about lawyers' reputations is readily available."