Yesterday's post concerned UCLA Law School Professor Sung Hui Kim's forthcoming article on the efficacy of lawyers as gatekeepers. I sent a link to my post to Professor Kim and she sent me an earlier article that she described as discussing "the real (not purported) reasons why the legal profession resists gatekeeping". Indeed, she pulls no punches in her article, claiming that lawyers are "myopic" and lack empathy for potential shareholder-victims. Naked Self Interest? Why The Legal Profession Resists Gatekeeping, 63 Fl. L. Rev. 129 (2011).
My reasons for opposing gatekeeping are sincere, not "purported", and I don't need a law review article to tell me what my "real reasons" are. Practicing lawyers understand that they cannot properly advise their clients, if their clients cannot communicate candidly and without fear that their lawyers will reveal their confidences. It is for this reason that the attorney-client privilege exists. But a lawyer's obligation of confidentiality is not limited to just privileged communications, it extends to all of a client's "secrets". That is why California Business & Professions Code Section 6068(e) obligates an attorney to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client". This statutory obligation is repeated in Rule 1.6 of the California Rules of Professional Conduct. The only exception is "to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual".
It is not self-interest that drives the bar's opposition to gatekeeping, but rather the practical understanding that clients and society are ill-served when lawyers are obligated to serve two masters. The weakness of the professor's case is evidenced by her need to cast aspersions on the motives of those who hold to different views.