Lawyers as Gatekeepers

Three recent legislative and regulatory initiatives - the Sarbanes-Oxley Act, the 2003 amendments to Model Rules 1.6 and 1.13, and the Gatekeeper Initiative - all seek to enlist the assistance of lawyers in thwarting crime. Outraged opponents have relied on flamboyant rhetoric. They challenge the notion that lawyers should act as gatekeepers - which some of the opponents deem equivalent to operating like the "secret police in Eastern European countries." This Article makes a simple, and ultimately uncontroversial, point. Lawyers are gatekeepers, and always have been.

Whatever one's position on the merits of the specific reforms currently being proposed, it is important to avoid the misconception that lawyers have no role to play in preventing client misconduct. At its root, the gatekeeper rhetoric conflates several separate concepts. At one level, everyone will agree that lawyers are clients' agents and that lawyers' traditional role in the adversary system is to help clients pursue lawful goals through those lawful means that are available. That however, is quite different from saying that lawyers should do whatever clients want, that they should assist clients in achieving illegal pursuits, or that lawyers have no business shaping client ends.

This Article canvasses four broad aspects of lawyers' traditional role that necessarily involve lawyers in regulating client conduct: (1) advising clients, (2) screening cases and legal arguments, (3) avoiding personal participation in improper behavior, and (4) disclosing confidences, when permitted by rule, to serve interests that trump the client's.