Kentucky Law Journal Article Cites Accountability for Lawyers Who Wrote Securitization Documents

Posted on April 27, 2017 by Neil Garfield

“Back at the beginning of creating the false pyramid of “Securitization” 9 lawyers in the New York metropolitan area resigned rather than contribute to drafting securitization documents. They all agreed that what was being requested of them was the drafting of documents to cover up a criminal enterprise. This article spells out part of the problem.”

The issue of attorney accountability for illegal or even criminal activities of their clients is as old as organized crime. The more money there is to be made, the more willing the lawyers are willing to rationalize their involvement. But when their conduct actually enables or promotes illegal conduct there should be (and actually there is) accountability for their illegal actions.

The problem is not just about the stealing from investors and applying the proceeds of “investments” to enable an illegal enterprise. It is also, as homeowners have long complained, that taking the attorney food chain as a whole, the prosecution of wrongful foreclosure where there was no evidence that their purported “client” knew of the foreclosure and no evidence that the “client” had any interest in the debt, note, mortgage or foreclosure.

“Although mortgage-backed securities (‘MBS’) and other financial products that nearly caused the collapse of the global financial system could not have been issued without attorneys, the legal profession’s role in the financial crisis has received relatively little scrutiny. This Article focuses on lawyers’ preparation of MBS offering documents that misrepresented the lending practices of mortgage loan originators. While attorneys may not have known that many MBS would become toxic, they lacked incentives to inquire into the shoddy lending practices of prominent originators, such as Washington Mutual Bank (‘WaMu”), when they and their clients were reaping considerable profits from MBS offerings. The subprime era illustrates that attorneys are unreliable gatekeepers of the financial markets because they will not necessarily acquire sufficient information to assess the legality of the transactions they are facilitating.”

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