I realised I don't understand something fundamental about how the legal process works (surely many things, but here is one):

Say it is a damages case, and a company is sued for a large amount of money.

If the defence lawyers become aware of some damaging information, what mechanism prevents them from sharing it with the plaintiff's team, in exchange for a percentage of the settlement in case the plaintiff wins?

I guess if it were found out, the parties would be disbarred? That seems a rather week preventative measure, since the two legal teams merely have to keep their communication secret.

Is there anything else that prevents this from happening?

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    Isn't any crime just a matter of two individuals and/or sets of people keeping their communication (and, of course, the act(s) itself) secret? Depending on the circumstances it sounds like it could be some sort of fraud, perhaps. There are of course ethical rules put in place by bar associations, etc. I presume it would be handled like any other crime if there are criminal elements to what occurs. – A.fm. Aug 1 '17 at 16:46

What prevents people robbing banks?

Well, it's illegal and dangerous and if you get caught you go to jail. On the flip side, there is potentially a big cash incentive.

Now, the fact is that most people do not rob banks: most lawyers fall into this category. For them the risk/reward profile is not worth it. However, some people do rob banks: for them, the risk/reward profile is worth it.

The same is true of the crime you suggested.

  • This feels like the answer, but could you spell out the risk in more detail? To me, the risk/reward seems far more favourable than robbing a bank. In the rob-a-bank case, you'll probably go to jail and may well die. In this corporate damages scenario, if disbarring is the only penalty, I would think disbarring would be a reasonable trade for a potential chunk of millions. And all you have to do is keep a secret. (I'm not a lawyer and have no connection to this scenario in case anyone is wondering. Just curious how the system works). – reluctantInventor Aug 2 '17 at 8:08
  • You also go to jail for this - the crime is called fraud – Dale M Aug 2 '17 at 9:12

I would approach the question from a different direction.

As an empirical matter, there are very few places in the United States were it is even remotely conceivable that this would happen, despite the fact that opposing counsel in legal matters have to cooperate with each other all time and are very good at cooperation and at keeping secrets.

Psychologist Stanley Milgram noted in psychology experiments that even slight steps to make someone identify with a particular role powerfully influences their behavior. People are extremely responsively to even slight whiffs of authority and respond to that role. The Stanford Prison Experiment reached a similar conclusion. People told they are prison guards act like brutes. People told they are prisoners act like victims. This is true even when everyone knows it is just an act and people get very caught up in their roles. This instinct is at work in lawyers too, who, of course, aren't acting.

One can ask why, but the question has to be rooted in the knowledge that not colluding really is what happens not just 99% of the time, but 99.999999999% of the time.

Lawyers as a matter of psychology want to help their clients and identify very strongly with their clients. Yes, they could be punished for colluding with opposing counsel and would probably be disbarred at a minimum and might even go to prison for doing so, but that happens perhaps 100 times less frequently than, for example, simply stealing money held in trust for a client that actually belongs to a client.

Lawyers are much more likely to collude with their clients to illegally take advantage of an opposing party than they are to collude with opposing counsel to the disadvantage of their client for their own benefit.

Now, often lawyers do have to do things that their clients don't like. For example, in a civil case, if a lawyer knows that his client has a damaging document, the lawyer will often have to get the client to hand it over to the other side as part of the disclosure and discovery process in order to play by the rules.

And, often, lawyers will push their clients to accept a settlement because the lawyers believe that it is in their client's best interest, but that their client is an idiot who is too emotional to realize this fact (and this is not gender specific - lawyers have lots of male clients who act like idiots for emotional reasons and have to be talked at length into sanity).

This probably isn't globally universal. I'm sure that there are one or two remote corners of this kind of lawyer corruption in the United States (probably in the rural Deep South, or Appalachia), and I'm sure that there are some countries where this happens somewhere in the world. But, even in some relatively corrupt part of Europe (for example, Italy or Greece), this is pretty much unthinkable these days.

  • You may be right about the role identification, but I am not convinced. Lawyers defend people who are clearly innocent some days, and defend people who are quite probably guilty other days. They thus seem to not particularly care about their role. Tangential, I recall reading about the 'kids for cash' (see wiki page of that name) and other cases where judges were sending people to private prisons in return for kickbacks. – reluctantInventor Aug 2 '17 at 8:14
  • On further thought, I think the Stanford prison experiment and Millgram experiment are evidence contrary to your claim. In those experiments, a person with a particular self-image (e.g. psychology student, etc.) changed to a very different role given just a small external push. What about if the reward is much larger. – reluctantInventor Aug 2 '17 at 8:17
  • @reluctantInventor What those experiments showed was that people strongly internalize their social roles. There are no one giving attorneys a push into some other role where betrayal of a client for personal gain is acceptable. – ohwilleke Aug 2 '17 at 16:11
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    @reluctantInventor "Lawyers defend people who are clearly innocent some days, and defend people who are quite probably guilty other days. They thus seem to not particularly care about their role." You seem confused about what it is that a lawyer does. Lawyers are not in the business of bringing about accurate results from court cases, they are in the business of getting the best result possible for their clients. There is nothing at all unethical or troubling about representing a guilty person in a criminal proceeding. (There are posts at LawSE on this, if you want a fuller explanation). – ohwilleke Aug 2 '17 at 16:14
  • The Stamford prison experiment is not the watershed moment many people think - there is strong evidence that the experiment itself was procedurally flawed. – Dale M Aug 3 '17 at 6:32

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