Veltz Meshugener–
Great post. I’m curious as to whether you are actually a 3L (as implied by your first post?) or working. Not that it changes the veracity of your statement, but I know my thoughts on this issue have changed a bit since I began practicing and I’m curious as to whether you share that experience.
Thankfully, I’ve actually never encountered an issue like the one I used as an example, and certainly never felt sufficiently uncomfortable that I would do something anywhere nearly as drastic as calling opposing counsel to tell them of an issue (I’m not even sure how this would play out–if your firm found out you did that, you’d be in a ton of hot water I’d imagine) or going above my direct superior.
Your suggestion regarding reframing to confirm with the partner is a really good one, and might work a lot of the time, but I can see a senior associate (most of whom will immediately see what you’re trying to do if you cc them or feel ambushed if you don’t) getting salty if an hour or two after you asked him about X a partner calls and says “[junior associate] just asked me about X [which you just asked him about], and I agree with him and think we should do Y.” As for your point regarding reviews, I guess it depends on people’s personality: I’ve worked with people who recognize that law is a team exercise and would thank you for confirming with the partner (I do my utmost to work with these types and hope to be this type if/when I get more senior), and I’ve worked (thankfully rarely) with people who are more concerned with their own career progression and would freeze you out of future deals for going over their head and making a partner question their judgment. If you know of a firm that consists solely of the former, let me know and I’ll definitely consider lateraling ASAP.
Your last paragraph is thought-provoking as well. I agree (and have stated above) that the sophistication of the parties involved in a transaction does indeed make it hard (and, from a reputational standpoint, stupid) to “pull a fast one” and I don’t think that happens much if at all. I guess the situations I’m thinking about are more in the grey area–e.g., massaging disclosure language (which certainly happens in every public filing). I think my revised example illustrates this: unclear what the motivation not to include is, a judgment call on which minds can differ, and unlikely to be caught by other parties unless they are sharp.
On a broader level, I really don’t mean to scare people off and make law (or at least corporate practice) sound like some sort of ethical minefield: it isn’t, certainly not relatively speaking. My goal in posting in this thread is simply to push back a little on the statement above that “being a lawyer is probably the most honest profession” (which may still be true–I have no means of comparison–but not because there are zero ethical issues to contend with).