by Jeff Sovern
Last Thursday, I posted on the blog Republican FTC Commissioners Name Payday Lender Lawyer to Run Consumer Protection Bureau Over Dem Commissioners' Objections. Alan Kaplinsky posted in response A reply to Professor Sovern, in which he wrote that "Jeff’s characterization of Andrew as a “Payday Lender Lawyer” in the title of his blog post coupled with his use of the quote “set a thief to catch a thief,” seems intended to raise questions about Andrew’s integrity based solely on his past representation of payday lenders." In fact, that was not my intent and I am surprised that Alan took it that way, especially as I said, as Alan noted, that "just to be clear, I do not mean that Mr. Smith is a thief." As I indicated in the post, when President Roosevelt's nomination of Joseph Kennedy to helm the SEC was challenged, Roosevelt retorted “set a thief to catch a thief.” Kennedy was confirmed and served as the SEC chair. I don't think President Roosevelt or the Senate saw Kennedy as a thief when they nominated or confirmed him, respectively, and I thought that that explanation would suffice to convey my meaning. Perhaps Mr. Smith's offspring, if he has any, will also serve in the presidency and Congress, as Mr. Kennedy's later did.
But let me clarify what I meant. I do not question Mr. Smith's ethics, nor do I question his competence as an attorney, and I don't believe the post did that. My concern is with naming an industry lawyer to a position involving conflicts between the industry and consumers. Sometimes that works out, as the reference to Kennedy was intended to convey. But it hasn't worked out so well in the consumer regulation arena. Lawyers who represent a particular set of clients tend to identify with those clients and view matters when they are not representing the clients accordingly. I hope that Mr. Smith does not succumb to that tendency. We will see.
I apologize for the title of this post (I couldn't resist). But I don't apologize for the original post, though I would be sorry if anyone thought that I was raising questions about Mr. Smith's ethics or integrity.
