Lawyers' Independence and Collective Illegality in Government and Corporate Misconduct, Terrorism, and Organized Crime

Abstract

The attached article argues that the conception of lawyers' independence invoked by commentators in the wake of disasters such as Enron is too amorphous a concept to inform analysis. Instead, this article views legal practice as a dialectic between branding and gatekeeping. All lawyers seek to build a brand - to establish a professional identity that is appealing to clients. In addition, however, the legal system requires that all lawyers practice gatekeeping - acting as filters to protect courts, third parties, and the public from misrepresentation or overreaching. To act as an effective intermediary between citizens, entities, and the state, lawyers must achieve an equipoise or balance between branding and gatekeeping norms. The article sets out an equipoise model, and applies it to three important legal arenas: disqualification of criminal defense lawyers, including alleged in-house counsel for the mob; regulation of government misconduct in terrorism prosecutions; and provision of legal advice that allegedly facilitates illegal activity by government, corporations, or terrorist groups.