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Lawyers are not Gatekeepers: Do You Want Your Lawyer To Be Horatius Or Atticus Finch?

I was profoundly disheartened by these recent remarks by SEC Commissioner Kara M. Stein:

Are we treating lawyers differently from other gatekeepers, such as accountants?  I think we should carefully review the role that lawyers play in our markets, with a view towards how they can better help deter misconduct and prevent fraud.

We should be considering attestations in new areas.  Should there be one for registered municipal advisors?  Or one for lawyers on the accuracy of issuer disclosures?

Lawyers should be treated differently from accountants because their roles and professional obligations are fundamentally different.  Simply put, lawyers are not gatekeepers.  To foist the role of gatekeeper on private attorneys undermines the critical role that lawyers play in our polity as advocates for their clients and checks on the government.  The former Soviet Union had lawyers, but they all worked for the government.  By labeling lawyers as gatekeepers and threatening enforcement, the government is in effect saying “you work for us”.

A few years back, I wrote in A Washington Fable for Our Time:

As a former state securities regulator, I am deeply troubled by securities fraud and corporate malfeasance. However, I also fear the current regulatory assault upon the attorney-client relationship.  In a free society, we must be free to seek the advice and counsel of private attorneys who are bound to maintain the trust and confidentiality of the attorney-client relationship. As a profession, we have in large measure stood by silently as our historic obligations to our clients have been eroded.  We must speak up before it is too late.

I hope that you will read the entire piece.

© 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume IV, Number 157


About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...