Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct

Abstract

Deliberate ignorance and calculated ambiguity are key recurring themes in modern scandals from Watergate to Enron. Actors, especially lawyers, seek to limit responsibility by avoiding knowledge and clear articulation. This essay considers this phenomenon from the point of view of both business organization and legal doctrine. Evasive ignorance and ambiguity seem endemic to a particular organizational model and to a traditional model of legal responsibility. Developments in both law and business, however, suggest that these models are being superceded. Many of the most dynamic businesses now emphasize practices of "transparency" designed to inhibit evasive ignorance and ambiguity. A major trend in recent legal doctrine, exemplified by the Sarbanes-Oxley Act, is to strengthen duties of inquiry and clear articulation. The legal profession, however, has strongly resisted these trends with respect to its own regulation. This essay argues that the bar's opposition to many of the lawyer regulation initiatives under Sarbanes-Oxley reflects a misguided attachment to the privileges of non-accountability associated with deliberate ignorance and calculated ambiguity.