Professor Stephen Bainbridge's blog yesterday highlighted a recent article by his Sung Hui Kim entitled "Do Lawyers Make Good Gatekeepers?" In answering this question, Professor Kim distinguishes between in-house and outside counsel. As to the former, she finds that "the empirical evidence is both complex and mixed, but that the weight of the evidence generally supports that general counsel are effective (albeit conflicted) gatekeepers, who appear willing to police material illegalities but who also tolerate a good deal of aggressive and perhaps unethical conduct". As to the latter, she finds "[t]he more limited evidence about outside lawyers suggests that they may be less likely to press their client representatives to comply with the law, opting instead to perform their strictly advisory role as neutral risk-assessors".
While these are interesting conclusions and worthy of study, my own view is that it is mistake to categorize lawyers as "gatekeepers". The reason is suggested by Professor Kim's findings. Lawyers serve two other important roles: advocates and counselors. These roles, particularly, as advocates are in conflict with the role of gatekeepers. In our system of justice, clients are entitled to have advocates and advisors who are not also surrogates for the government. Imposing gatekeeper responsibilities on private counsel creates irreconcilable conflicts that effectively deprive clients of effective legal representation. While regulators undoubtedly benefit from making outside counsel their enforcement surrogates, our legal system becomes one-sided when they do.
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