Lawyer Exceptionalism in the Gatekeeping Wars
SMU Law Review, Vol. 63, p. 73, 2010
64 Pages Posted: 4 May 2010 Last revised: 3 Jun 2010
Date Written: April 30, 2010
Although there is much debate about whether lawyers should have gatekeeping duties to avert client illegality and prevent harm to the capital markets, few have examined the fiery rhetoric that fuels this ongoing controversy. This Article explores the rhetoric deployed by the legal profession to ward off the federal regulation of lawyers who appear and practice before the Securities and Exchange Commission (SEC). After describing three canonical battles between the SEC and the bar, it identifies and examines the powerful rhetoric of “lawyer exceptionalism” – the notion that lawyers’ societal function is unique and qualitatively different from that of other professionals who have legal obligations to avert fraud – and that this unique function is so valiant and virtuous that lawyers should be exempt from these gatekeeping obligations. The claim of lawyer exceptionalism hinges on the implicit invocation of particular images – the most important being the image of the lawyer as a litigator engaged in zealous advocacy. This Article demonstrates how these images – or, more accurately, “prototypes” – are used to persuade audiences that gatekeeping is fundamentally inconsistent with the practice of law. Moreover, it argues that the image of the litigator engaged in zealous advocacy is both exaggerated and misleading in the domain of the federal securities regulation of lawyers. This Article then offers suggestions on how to undermine the rhetoric of lawyer exceptionalism.
Keywords: lawyer exceptionalism, gatekeeping wars, gatekeeper, SEC, organized bar, legal ethics, securities regulation, cognitive psychology, prototype, contrast effect, securities fraud, external regulation of the bar
Suggested Citation: Suggested Citation