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As soon as Martha Stewart was convicted, there was a bombardment of legal commentators on the airwaves. Each had his or her own analysis of the trial and how the case could have been handled differently. Stewart’s is only one of several high-profile white-collar cases drawing the attention of legal pundits in print and on air.

The media rely more than ever on law professors to explain the law, relating to everything from election brouhahas to corporate scandals. Scarcely an article is written or a broadcast story aired about a courtroom event or a judicial decision without quotes from law professors and practicing lawyers. They are called upon not only to explain the legal developments, but to evaluate the conduct of witnesses, lawyers and judges.

The time is long overdue to focus on the ethics of media commentary — especially when the pundit is a professor. An article in Business Week, “Can Law Professors Consult — And Keep Their Distance?” by Mike France, raised this issue and reported troubling examples of professors serving as both consultants on cases and media commentators on the same or related matters. Critics and players in these scenarios disagree on whether adequate disclosure has been made to the media of the relationships.

In a series of articles, two of us (Erwin Chemerinsky and Laurie Levenson) have proposed that a voluntary code of ethics for commentators be developed. Among other proposals, we concluded that, at a minimum, an individual should not serve as a commentator if he or she has done any work on the case and that any personal relationship with the participants should be fully disclosed.

A commentator need ask only a simple question: Would the reporter, the reader or the television audience want to know of the commentator’s involvement? If so, then there is no justification for not informing the media and the public of the conflict of interest.

Law professors can perform an enormous public service when they explain the law to reporters and to the public. Legal issues, such as in the recent corporate scandals, are often very complicated. But law professors do a disservice if they are perceived as being neutral, but in reality are very involved in the matter about which they are commenting. Reporters and the public are deceived; surely they would react to the expressed opinions differently if they were told that the professor was involved in the case.

Most troubling of all is that this type of conflict of interest should arise in the wake of the reform measures introduced by the Sarbanes-Oxley Act of 2002. Without a doubt, Congress enacted this far-reaching package of initiatives to promote transparency in the decision-making process of the modern corporation and thereby restore investors’ trust and confidence in our system of corporate decision-making and financial reporting.

Although these various reforms are complex, the bottom line is about doing what is fundamentally fair and honest. As corporate America and its financial and legal advisors struggle to implement the complicated set of regulations required by Sarbanes-Oxley, it is all the more important that law professors adhere to the highest ethical standards.

Ethical guidelines needed

The very essence of Sarbanes-Oxley is to impose personal accountability on board members, auditors, financial analysts and others. Therefore, law professors should take the lead in disclosing – loudly and clearly — any conflicts of interest. Though law professors were not the specific target of this new federal law, they should nonetheless conduct themselves in accordance with the spirit of Sarbanes-Oxley as part of corporate America’s renewed commitment to doing the right thing.

Law professors who cast themselves in the dual role of corporate expert and legal commentator may be doing a disservice to their corporate clients. In order to be truly honest with the public, the professor may find himself in a position where he will have to comment negatively on his own client. This, too, creates for the professor an untenable conflict of interest.

The use of professors as media commentators has exploded in recent years with the growth of media outlets and increased media attention to legal issues. Unfortunately, there is no guidance for ethical behavior in this role. Though there are general laws and customs of professional responsibility to which lawyers and journalists adhere, they do not speak to the ethics of being a commentator.

The Association of American Law Schools and the American Bar Association should consider adopting voluntary codes of ethics to guide professors and practicing lawyers in their roles as commentators. Given the increased role of professors and lawyers as legal commentators, the time is right to enact voluntary codes of ethics that will address the difficult issues that regularly arise for commentators, including questions of conflicts of interest, confidentiality and compensation. The stakes are enormous: the integrity and perceived integrity of the legal profession.

Chemerinsky is a professor at the University of Southern California Law School. Levenson and Maynard are professors at Loyola Law School, Los Angeles.

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