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.