Why I Believe Professor Kim Is Asking The Wrong Question About Gatekeepers

In a forthcoming chapter in The Cambridge Handbook of Investor Safety (Cambridge College Press, 2021) UCLA Regulation Professor Sung Hui Kim asks “Do Lawyers Make Good Gatekeepers”?   She posits that there’s “a strong case for imposing gatekeeping duties on lawyers” whereas acknowledging that “prominent segments of the legal profession have long resisted such responsibilities”.  Whereas I could not qualify as “prominent”, I do rely myself among the many resistance.  My principal causes for opposing gatekeeper standing are as follows:

  • Conflicts of Curiosity.  If a lawyer is a gatekeeper, then she has obligations past the consumer.  It establishes a state of affairs akin to Justice Louis Brandeis’ notion of “counsel to the situation” relatively than counsel to the consumer.  Even Brandeis bumped into plenty of hassle with purchasers who thought that he needs to be looking for his or her pursuits, and never the pursuits of the state of affairs.  See Melvin I. Urofsky’s fascinating biography, Louis D. Brandeis: A Life (pages 65-70).  Our authorized system works finest when a celebration has a lawyer that represents solely that celebration and never the state of affairs, the deal or society as an entire.

  • Lawyer-Shopper Confidentiality.  Gatekeeper standing invitations violations of the confidentiality of attorney-client communications.  For instance, the Safety and Trade Fee’s Half 205 guidelines purport to immunize attorneys who disclose consumer confidences in sure circumstances.  In California, the State Bar Act requires attorneys to “maintain inviolate the confidence[s], and at every peril . . . to preserve the secrets, of his or her client[s].  Cal. Bus. & Prof. Code § 6068(e).   This obligation is independent of an attorney’s obligations with respect to the attorney-client privilege as set forth in the Evidence Code (Sections 950-962) and the California Rules of Professional Conduct.   Jim Fotenos, Steve Hazen, Jim Walther, Nancy Wojtas and I spilled a pot full of ink over this topic in this legislation overview article.

  • Regulatory Seize.  As I famous on this piece (see p. 84), the lawyer as gatekeeper could also be extra inspired to remain within the good graces of the regulatory company than to behave as a vigorous advocate for his or her purchasers’ pursuits.

  • Quis Custodiet Ipsos Custodes?  If legal professionals are gatekeepers, who will watch the gatekeepers?  Presumably, this would be the very  regulatory businesses and thus we’re led again into the issues of divided loyalties and regulatory seize.

Briefly, the proper query is would you need to be suggested and represented by a gatekeeper with divided obligations?  

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