Editor: David Reiss
Brooklyn Law School

June 10, 2014

Subprime Scriveners

By David Reiss

Milan Markovic has posted Subprime Scriveners to SSRN. The abstract reads,

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. The Article concludes by proposing that the Securities and Exchange Commission impose heightened investigative duties on attorneys who work on public offerings of securities.

The article addresses an important aspect of an important subject – which professionals could and should be held responsible for the rampant misrepresentation found throughout the MBS industry in the early 2000s. The prevailing wisdom is that no one can be held responsible, because no one did anything that made him or her personally culpable.  Markovic argues that lawyers can and should be held responsible for the misrepresentations found in MBS offering documents.  While I buy his argument that lawyers have been unreliable gatekeepers, I am not sure that I fully agree with diagnosis of the problem.

Markovic writes,

The large financial institutions that issued MBS presumably understood the implications of incorporating questionable representations from loan originators into MBS offering documents. They also would have been able to consult with their in-house counsel about the risks of securitizing poor quality mortgages. It is not self-evident that ethical rules should compel attorneys to investigate what sophisticated clients advised by in-house counsel do not believe needs investigating. (45)

In fact, sophisticated parties often use reps and warranties to allocate risk. For instance, a provision could require that an originating lender buy back mortgages that failed to comply with reps and warranties. This is not a situation where any of the parties would expect anyone to investigate the “representations from the loan originators.”  Rather, the parties assumed (rightly or wrongly) that the originator would stand behind the representation if and when it was proved to be false. And, indeed, solvent originators have had to do so.

As I do not fully agree with Markovic’s diagnosis of the problem, that leads me to have concerns with his proposed solution as well. But the article raises important questions that we have not yet answered even though the events leading to the financial crisis are nearly a decade behind us.

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