Separate and Continuing Counsel for Independent Directors: An Idea Whose Time Has Not Come as a General Practice

摘要

In their accompanying piece in this issue, Professors Hazard and Rock present a thesis that "independent directors, especially those on the Audit Committee increasingly will be represented on a continuing basis by independent legal counsel." Thus, it is their argument that, as a general practice, there "will emerge a new figure in the boardroom: the Independent Directors' Counsel." Their contention is part prediction/partjus-tification. Either way, it is not likely as a prediction and it is not a good model that can be justified as a general matter. In short, this is the author's opinion largely because (ⅰ) such a general practice is not necessary or desirable; (ⅱ) such a general practice may often be disruptive overkill; and (ⅲ) the notion that "one size fits all" is not a good model of corporate governance.