I am delighted to announce that the book, Lawyers, Gatekeeping and Access to Justice: A Critical Analysis, is now available on line Open Access (and of course in a print version). This project could not have been relaized without the brilliant work of its co-editors,
Lawyers face increasing pressure from clients, politicians, prospective hires and international and civil society organisations to act as gatekeepers: to reject certain clients or cases or mitigate their involvement. This can be at variance with the traditional role of lawyers to provide access to justice.
This volume presents a systematic exploration of the gatekeeping debate. It discusses the key dimensions of gatekeeping, the risk of abuse of identifying lawyers with their clients in authoritarian regimes, the limits of partisan lawyering and the legal boundaries to representation. It also discusses the question of representation that may be in line with professional duties but still be considered controversial based on soft law or moral or societal expectations. A key takeaway is that the gatekeeping discussion would benefit from the differentiation between whether a client deserves representation and how a lawyer should represent the client.
The contributions are written by high-profile academics and professionals from various jurisdictions around the globe, aiming to provide solid, multifaceted, balanced and comprehensive guidance for lawyers, academic researchers, regulators, bar associations and law societies.
The table of contents with links to the individual contributions follow below along with excellent opening essay: LAWYERS AS GATEKEEPERS: INTRODUCTION AND OVERVIEW (Jonathan Soeharno and Birgit Spiesshofer).
TABLE OF CONTENTS
part I|15 pages
Introduction
Title
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part II|63 pages
Gatekeeping
Title
chapter 2|16 pages
Must ‘good’ lawyers refuse ‘bad’ cases? Understanding the gatekeeping debate
Title
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chapter 4|11 pages
Who decides on the wider public interest? Moral pluriformity and access to justice
Title
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chapter 5|13 pages
Do lawyers bear responsibility for the (wider) public interest? Comparing the Netherlands and England
Title
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part III|53 pages
The authoritarian challenge
Title
chapter 6|20 pages
The historical backgrounds of the gatekeeping discussion
Title
Lawyers and their associations under two totalitarian German regimes
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chapter 8|15 pages
Undesirable clients; undesirable lawyers – the emerging structures of gatekeeping strategies in the United States of America
Title
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part IV|47 pages
Lawyer independence versus partisanship
Title
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chapter 10|19 pages
Regulating lawyers on client or case acceptance
Title
The case of strategic lawsuits against public participation (SLAPPs)
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part V|43 pages
Preventing facilitation of illegal activities
Title
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part VI|84 pages
Preventing facilitation of unwanted or morally objectionable activities
Title
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chapter 16|13 pages
Wise counsellors or gatekeepers?
Title
Lawyers guiding businesses to respect human rights and the challenges in Japan
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chapter 18|16 pages
Legal ethics and climate change
Title
A view from inside client–lawyer representation in the United States
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part VII|21 pages
Way forward and conclusion
Title
chapter 20|19 pages
Gatekeeping responsibilities of lawyers between the ‘if’ and the ‘how’. Lessons learned and way forward
Title
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* * *
LAWYERS AS GATEKEEPERS.
INTRODUCTION AND OVERVIEW
Jonathan Soeharno and Birgit Spiesshofer
Abstract
This introductory chapter addresses the impetus for the gatekeeping debate that
revolves around the question of whether and to what extent lawyers should reject
certain clients or cases or mitigate their involvement. The chapter explains how, under
growing geopolitical, regulatory and societal pressure, lawyers are urged to expand
their responsibilities beyond the traditional conception of the role of lawyers as provid-
ers of access to justice – and are expected to act as gatekeepers, for example, in the fields
of anti-corruption, anti-terrorism, human rights, climate change or ESG. The chapter
identifies fundamental issues such as professional identity and partisanship, the scope of
lawyer responsibilities and accountability, the allocation of power to regulate lawyers’
behaviors and the risk that gatekeeping conceptions – such as ‘enablers’ or ‘facilita-
tors’ – are open to abuse by authoritarian regimes. It concludes with an outline of the
book’s guiding questions and an overview of the sections and contributions.
I Introduction and overview1
This volume is the first systematic exploration of the gatekeeping discussion –
the discussion that revolves around the question of whether and to what extent
lawyers should reject certain clients or cases or mitigate their involvement. In
light of mounting pressure around the globe on lawyers to act as gatekeep-
ers, this volume does not only aim to fill an academic gap but also to give
guidance for practice. The contributions are written by high-profile academics
1 The editors would like to thank Aytülin Kızılkaya and Maud de Ruiter for their invaluable
support in preparing the manuscript. They are grateful to Staats- und Universitätsbibliothek
Bremen for providing support for the open access of this volume.
and professionals from various jurisdictions around the globe, highlighting
the essential elements and aspects of the gatekeeping discussion. The contri-
butions focus not only on the ‘if’ (what client, what case, what assistance?),
but also on the ‘how’ of representation (how would ‘good’ lawyers handle
questionable cases?).
1 Introduction
a Gatekeeping: New wine in old wineskins?
The call for lawyers to be gatekeepers for their clients is not new and has been
discussed on many occasions. This has resulted in numerous position papers,
declarations or guidelines that may seem unobjectionable at first glance.2
After all, the rule of law, access to justice and the need for independent lawyers
usually take central stage, followed by other (equally seemingly unobjection-
able) values and norms that are now brought within the ambit of professional
ethics, notions such as human and fundamental rights, (wider) public inter-
ests, diversity and inclusion, duties to the community or (corporate) social
responsibility.
The full impact of these and similar concepts has become tangible in the last
decades. Geopolitical, regulatory, political and social developments, but also
scandals like the Panama Papers, have intensified pressure on lawyers. Lawyers
receive scrutiny from various angles, by governments, clients, prospective law-
yers, regulatory authorities, courts, non-governmental organizations (NGOs)
or international organizations to expand their responsibilities beyond basic
rule of law principles. Infamous examples include the 2025 executive orders
2 For example, in 2012 the representatives of the European Bar Associations assembled in Rome to discuss professional ethics and the social responsibility of lawyers. They approved the following – rather formal and ubiquitous sounding – declaration: ‘I. Reaffirm that the rule of law can only be guaranteed by free and independent lawyers. This independence, as the foundation of the inviolable right of defence, as well as a right is also a lawyer’s ethical duty. II. Confirm that lawyers, in the exercise of their profession, are required to respect the professional ethics established by the canons of ethics and by the duties and responsibilities towards others for the protection of human and fundamental rights. III. Reaffirm that lawyers perform a social function from which derive specific duties and responsibilities. IV. Recommend that the legal systems explicitly recognize the social function of the lawyer not only as a participation to the correct administration of justice, but also as the fulfilment of mandatory duties to the community. V. Are committed to ensure that professional ethics and in particular the duties related to the social responsibility of lawyers constitute essential subjects of professional training for young people and continuous training.’ See Guido Alpa and Alarico Mariani Marini (eds), Professional Ethics and the Social Responsibility of European Lawyers. Proceedings of the Conference Sponsored by the Consiglio Nationale Forense and the Scuola Superiore dell’Avvocatura with the High Patronage of the President of the Italian Republic, Rome 15–16 November 2012 (Joint Declaration, Pisa University Press 2014). For other examples, see Soeharno, Chapter 2, this volume.
Lawyers as gatekeepers. Introduction and overview 5
by US President Trump targeting specific law firms – under the normative
guise of the ‘national interest’ – for having handled unfavorable clients or
unfavorable cases.3
Calls for gatekeeping typically involve an increasing identification of the
lawyer with the client and their cause, calling into question the traditional
role of lawyers and its specific obligations. This may lead to a softening of
the lawyer’s special independent role as an organ of the administration of
justice toward a business like any other. This is especially true in the context
of human rights and climate change. Must lawyers become ‘gamechang-
ers’, meaning that they shall actively use their leverage to influence their
clients to improve their performance concerning human rights and the
environment? Or ‘wise counsellors’ not only advising on the application of
law but also striving to achieve further reaching ethical or societal goals
by influencing their clients in that direction? May so-called ‘advised emis-
sions’ (i.e. emissions by the client but associated with the mandate) be
attributed to the law firm which would build up pressure on lawyers not to
represent emission-intensive clients? What about legal but “aggressive” tax
planning? Vice versa: may clients become gatekeepers of their lawyers and
impose on them Environment, Social, Governance (ESG)-obligations (also
regarding their behavior toward other clients) as part of their supply chain
responsibility?
For the purposes of this book, ‘gatekeeping’ is used as an umbrella term
denoting obligations to mitigate representation or assistance or to influence
clients to avoid adverse impacts linked to their operations or the mandate.
These obligations may stem from (1) fundamental notions of the rule of law
and professional ethical obligations; (2) legal obligations, e.g. relating to
anti-money laundering, anti-terrorism legislation or sanctions legislation; and
(3) soft law, societal or moral expectations, e.g. based on human rights, ESG,
an expanded conception of corporate social responsibility, public or national
interests or, simply, social responsibility.
b Tension with the traditional role of lawyers
Gatekeeping can be at variance with the traditional conception of the role of
lawyers. In constitutional democracies lawyers fulfill the role not of ‘closing’
but of ‘opening the gate’. Lawyers must provide equal access to justice – inde-
pendent of the (identity of the) client or (the nature of) the case. This role is
enshrined in foundational documents, such as constitutional laws, treaties and
conventions (e.g. Article 6 of the European Convention on Human Rights).
3 See Backer, Chapter 8, this volume.
6 Lawyers, Gatekeeping and Access to Justice
To give one example, Article 47 of the European Union Charter of Funda-
mental Rights includes the provision that
Everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law. Every-
one shall have the possibility of being advised, defended and represented.4
The foundational, international document is the 1990 UN Basic Principles
on the Role of Lawyers (UN Basic Principles). The UN Basic Principles out-
line the traditional role of lawyers – namely that they provide access to justice
‘through advising clients on rights and obligations, assisting them to protect
their legal interests or representing them before courts, tribunals or adminis-
trative authorities where appropriate’5 – and the traditional principles, such as
the principle that ‘all persons are entitled to call upon the assistance of a lawyer
of their choice,’6 that ‘lawyers shall not be identified with their clients or their
clients’ causes as a result of discharging their functions’7 and that governments
should ensure that lawyers can perform their functions ‘without intimidation,
hindrance, harassment or improper interference.’8 Tellingly, the latter principle
also instructs states that lawyers shall not ‘be threatened with . . . economic
or other sanctions for any action taken in accordance with recognized profes-
sional duties, standards and ethics.’9
Not unsurprisingly the developments of the last decade, notably in the
United States, have given rise to a reiteration of these foundational principles.
In 2025 the Council of Europe published the Convention for the Protection
of the Profession of Lawyer, stipulating that ‘parties shall ensure that lawyers
do not suffer adverse consequences as a result of being identified with their
clients or their clients’ cause.’10
c Some fundamental issues
Tensions between calls for gatekeeping and the traditional role of lawyers
touch on fundamental issues. At the core is the question of professional iden-
tity. What are lawyers? Officers of the court or ‘hired guns’? Partisan defenders,
4 For the United States see the Sixth Amendment to the Constitution of the United States;
American Airways Charters v Regan 746 F2d 865 (DC Cir 1984).
5 UN Basic Principles on the Role of Lawyers 1990 (UN Basic Principles), art 13.
6 Ibid art 1.
7 Ibid art 18.
8 Ibid art 16.
9 Ibid (selection authors).
10 Council of Europe, Convention for the Protection of the Profession of Lawyer (March 2025)
CM(2024)191, para 5. See also Soeharno, Chapter 2, this volume.
Lawyers as gatekeepers. Introduction and overview 7
fixers, legal experts, trusted advisors, moral agents, gamechangers, wise coun-
sellors, facilitators, enablers, wardens of the administration of justice or guides
through the legal system? Should different gatekeeping standards apply to
different types of lawyers, notably trial lawyers versus transaction lawyers – a
distinction that seems to hold better for common law traditions than civil law
systems?11 And do standards vary according to different fields of law – e.g.
must tax lawyers be more active gatekeepers than, say, arbitration lawyers?
Another issue concerns the scope of lawyer responsibilities, in particular if
these include public interests. Traditionally, access to justice is itself perceived
as a public interest served by lawyers through representing and assisting cli-
ents. Is it the responsibility of lawyers to directly weigh in on wider other
interests, based on a specific, or own, perception of the public interest, against
the client’s interests? Put more concretely: to what extent can the gatekeeping
role be imposed, for example in view of national interests or national security
interests, social interests or (other) wider public interests? Or may be imposed,
for example through anti-corruption legislation, anti-terrorism rules, sanc-
tions, soft law obligations or societal expectations including those based on
human rights? Or be adopted (more or less) voluntarily, as a result of moral
critique or commercial and reputational concerns?
Then there is the question to whom lawyers are accountable? Who shall be
competent to establish duties and regulate their behavior: to what extent can
the limits of what is permissible be determined by others than legislators, bar
associations and courts, and enforced with the sanctions provided for in their
procedures? With the reevaluation of the role of the lawyer as a ‘facilitator’
or ‘enabler’ and under the heading of ‘ethics’, ‘ESG’ and ‘public interest’, the
responsibility of the lawyer may be extended into a gray area of the legal but
illegitimate that is only defined to a limited extent and enforced by informal
sanctions such as boycotts, ‘name and shame’ campaigns or economic conse-
quences (loss of clients). To what extent is this desirable?
Another fundamental question to be kept in mind when discussing exten-
sions of the gatekeeping role is that the many gatekeeping conceptions – for
example of ‘enabler’ and ‘facilitator’ – can also be abused and are abused by
authoritarian regimes which sanction lawyers who represent clients and causes
disliked by the respective regime by identifying the lawyer with the client. The
aim of these regimes is to cut off these clients from access to justice and gener-
ate a chilling effect to prevent other lawyers from adopting such mandates by
qualifying the lawyers as ‘enablers’ of unwanted engagements.
11 cf Adrian Evans, The Good Lawyer (Cambridge University Press 2014) 91: argues in that vein that outside trial lawyering, general morality should gain more prominence (‘Outside these environments the justifications for role morality start to decline and the case for general morality starts to improve’) without making clear what the substance of ‘general morality’ entails.
8 Lawyers, Gatekeeping and Access to Justice
2 General overview
The volume is organized in clusters around the following questions:
• What are the key dimensions, essential issues and basic tensions reflected in
the gatekeeping debate? (II ‘Gatekeeping: Fundamental questions’)
• What is the risk of abuse of holding lawyers accountable for their clients or
their causes? (III ‘The authoritarian challenge’)
• Where should be the limits of partisan lawyering? (IV ‘Lawyer independ-
ence versus partisanship’)
• What are the legal limits of legal representation and what is their impact on
access to justice? (V ‘Preventing facilitation of illegal activities’)
• Should the gatekeeping role of lawyers be expanded to representations
which are legal and in line with professional duties but considered ille-
gitimate based on soft law, moral or societal expectations? (VI ‘Preventing
facilitation of unwanted or morally objectionable activities’)
The final chapter will evaluate the answers to these questions provided by the
respective authors and suggest the way forward for further research and politi-
cal strategies by regulators and the bars. (VII ‘Way forward and conclusion’)
3 Overview of sections and chapters
Part II ‘Gatekeeping: Fundamental questions’
Jonathan Soeharno starts off with Chapter 2, ‘Must “good” lawyers refuse
“bad” cases? Understanding the gatekeeping debate’. He maps the essen-
tial issues and tensions of the gatekeeping debate illustrated by a famous case:
in the Netherlands, the discussion gained prominence when Dutch law firm
Houthoff faced backlash for representing the Russian Federation following
the invasion of Ukraine. The firm eventually dropped Russia as a client, high-
lighting the tension between professional obligations and public sentiment.
The refusal of the dean of the The Hague Bar to appoint a lawyer for Russia,
despite legal obligations, underscores the complexities of gatekeeping, includ-
ing ambiguities in sanctions and moral considerations. The chapter discusses
three approaches to gatekeeping: (1) gatekeeping from the perspective of
the lawyer’s role in the rule of law, specifically taking into account ‘classic’
responsibilities to maintain confidentiality and independence, followed by two
approaches that represent external pressure, namely (2) responsibilities to pre-
vent facilitation of illegal activities, and (3) responsibilities to prevent morally
objectionable activities. Ultimately, the chapter emphasizes the importance of
maintaining prudent, professional non-identification to ensure equal access to
justice while navigating the growing calls for gatekeeping.
Lawyers as gatekeepers. Introduction and overview 9
In Chapter 3, Tim Dare asks the question: ‘What can the standard con-
ception offer morally conflicted lawyers?’ He defends the so-called ‘standard
conception of lawyers’ that includes the notion that lawyers are not account-
able for their clients or the causes they represent. Inevitably, lawyers control
access to legal rights. If exercised on moral grounds, this gatekeeping function
calls into question assumptions associated with the standard conception of
the lawyer’s role, however this chapter argues that the standard conception
can accommodate morally conflicted lawyers. It seeks to minimize the conflict
between the demands of role morality and those of ordinary morality by limit-
ing the excesses of advocacy. It responds to suggestions that the principle of
nonaccountability should be abandoned, arguing that the standard conception
allows meaningful external review and critique, and it offers a model of the
lawyer’s role, which preserves role obligation while recognizing the contribu-
tion of ordinary morality. He suggests that lawyers have a moral obligation to
engage in law reform, aimed at minimizing conflicts between lawyers’ roles
and ordinary morality, and suggests that role occupants can maintain integrity
by a process of reflection and response. He concludes that the issues that lead
lawyers to contemplate withholding their services on moral grounds are clearly
weighty; however, the standard conception’s account of the lawyer’s role is
morally significant too. It should not be put aside if it can accommodate the
concerns of morally conflicted lawyers.
In Chapter 4, ‘Who decides on the wider public interest? Moral pluri-
formity and access to justice’, Rebecca Roiphe and Bruce A. Green argue
that limiting the lawyer’s role in favor of a wider public interest is inevitably
at variance with moral pluriformity and access to justice. For decades, legal
ethics scholars, and particularly those with a background in philosophy, have
debated whether lawyers’ obligations to clients should be counterbalanced
by an obligation to serve the public interest broadly conceived. This chapter
engages into that philosophical debate but states clearly that lawyers in the
United States do not generally believe that they owe an obligation to the
greater public. Their primary duty is to their client, and any secondary obliga-
tions are to the legal system, not the public interest writ large. The chapter
argues that this is not only descriptive but also normatively desirable given the
role that lawyers play in a pluralistic society. In America’s liberal democracy,
there is no broad agreement about what is substantively in the public interest.
If lawyers had a commitment to serve this fictional goal, some clients, interests
and beliefs would be barred from access to the justice system, which is incon-
sistent with American democratic principles. In a liberal democracy, even the
most despised clients deserve a chance to compete for their interpretation of
the law and their vision of the public interest.
In Chapter 5, ‘Do lawyers bear responsibility for the (wider) public
interest? Comparing the Netherlands and England’, Jonathan Soeharno
and Iain Miller look at how the notion of the lawyers’ responsibility for the
10 Lawyers, Gatekeeping and Access to Justice
wider public interest has concretely taken shape in the Netherlands and Eng-
land. In the Netherlands, the public interest is not a direct responsibility of
lawyers: a decade-long debate led to the exclusion of ‘public responsibility’
as a core value in the Lawyers Act, avoiding role ambivalence. Instead, the
public interest is understood to be served indirectly through professional cli-
ent service. Conversely, in England, the Solicitors Regulation Authority (SRA)
principles prioritize public interest over individual client interests, sparking
discussions about lawyers’ roles. The Legal Services Act 2007 introduced reg-
ulatory objectives, including public interest, without hierarchical precedence,
leaving interpretation to regulators. Despite seeming differences, both juris-
dictions face inherent tensions between partisanship and public interest. Both
systems recognize the importance of the rule of law as a normative context for
legal practice, emphasizing the lawyers’ public role despite private profession
dynamics.
Part III ‘The authoritarian challenge’
Dirk Uwer lays the foundation in Chapter 6, ‘The historical backgrounds
of the gatekeeping discussion – Lawyers and their associations under two
totalitarian German regimes’, by illustrating how lawyers and their associa-
tions have been gruesomely scrutinized by two totalitarian German regimes
during the Nazi era and under socialist Eastern Germany. He holds that in
this time of ever-accelerating destruction of certainties where also the role of
lawyers is increasingly scrutinized and questioned, it should never be done
without learning from history. The history of the legal profession in Germany
provides, as this chapter aims to demonstrate, particularly suitable illustrative
material. From the evolution of a modern type of lawyers independent from
the state in the 19th century via the complete descent of the profession into the
abyss of National Socialism to its resurrection after the collapse of the totalitar-
ian regimes of the 20th century, it should become clear that all authoritarian
and totalitarian regimes of the past needed to subject lawyers to a public inter-
est redefined in accordance with their ideologies.
Pui-yin Lo sketches in Chapter 7, ‘Lawyers in China’s Hong Kong: The
price of speaking up and not speaking up’, the developments regarding
lawyers and their associations in Hong Kong. Hong Kong, a special adminis-
trative region of the People’s Republic of China, has a legal system based on
the common law of England and separated and distinct from the legal system
of the Chinese mainland. Hong Kong’s legal profession and individual lawyers
have, since the return of Hong Kong to China on July 1, 1997, provided legal
services in a common law system in the context of China’s socialist system and,
through their services to clients and the community, promoted the objects
of administration of justice, rule of law and law reform. The 2019 Hong
Kong Protests and China’s response of recalibrating Hong Kong’s systems,
Lawyers as gatekeepers. Introduction and overview 11
principally by the introduction and enforcement of a National Security Law,
have presented challenges to both Hong Kong’s self-regulating legal profes-
sional bodies and individual lawyers. Accommodations were made by the
whole profession with the ‘improved’ systems in exchange for the continuity
of self-regulation. Some lawyers, especially those who had openly assisted pro-
testors or critiqued China’s national security enhancements, felt the pull of the
authorities and exited the region. Others have been attracted by the push of
the Chinese mainland market and obtained permission to offer services there
under Chinese supervision. This chapter presents their stories.
Lawyers in the United States have come under political pressure too, as
Larry Catá Backer describes in Chapter 8, ‘Undesirable clients; undesirable
lawyers: The emerging structures of gatekeeping strategies in the United
States of America’. Within weeks of the inauguration of President Donald
Trump in 2025, his administration challenged, and in challenging, sought to
redefine, the fundamental expectations of the lawyer’s role within liberal dem-
ocratic rule of law (RoL) systems. The effort has been highly contentious from
the start, involving critical elements of a RoL system: administrative officials,
law, judges and courts, and the lawyers whose role among and between them
is at the center of the controversy. Through this lens, this chapter examines
the contemporary debates of lawyers as gatekeepers within the United States
now emerging. At the heart of this analysis are a series of presidential executive
orders (Trump administration EOs) issued in the first months of the Trump
administration targeting specific law firms and the responses to them. The
contribution first situates the conflict within the larger narratives of lawyers in
the U.S. RoL system. With this as an analytical baseline, the contribution then
considers the challenge posed by the presidential EOs, with particular focus on
the initial judicial response.
Part IV ‘Lawyer independence versus partisanship’
In Chapter 9, ‘Saying “no” to the client: A US perspective’, Bruce A.
Green and Rebecca Roiphe examine whether U.S. lawyers are gatekeepers
under rules of professional conduct. The relevant rules differ depending on
whether the lawyer represents a client in litigation or in a transaction, but U.S.
lawyers’ gatekeeping role is minimal in either context. In litigation, lawyers
may not bring frivolous claims, but they may bring weak claims or pursue
unworthy causes. They may present evidence or testimony that they disbelieve
as long as they do not know it to be false. When representing clients in transac-
tions, U.S. lawyers may not assist conduct known to be criminal or fraudulent,
and they must undertake some inquiry when they have doubts about clients’
intentions. But U.S. lawyers generally have no obligation to report a client’s
misconduct, and often lawyers’ confidentiality obligations forbid them from
voluntarily disclosing that a client is planning or engaging in misconduct.
12 Lawyers, Gatekeeping and Access to Justice
Andrew Boon discusses in Chapter 10, ‘Regulating lawyers on client or
case acceptance: The case of strategic lawsuits against public participation
(SLAPPs)’. He explains that in liberal states, the legal role involves main-
taining a balance between representing the interests of clients and observing
duties to legality, whether expressed as duties to the rule of law or the admin-
istration of justice. Thus, lawyers must not advise clients on how to break the
law nor assist them in doing so. Additionally, they are sometimes called on
to discriminate against potential clients whose interests they consider conflict
with the public interest. The problems and possibilities of an approach requir-
ing lawyers to refuse clients’ legal objectives is examined using the example
of SLAPPs. Analysis of the response to such cases in England and Wales sug-
gests that lawyers’ individual discretion in accepting clients should be exer-
cised within a framework of clear regulation rather than as a matter of personal
moral conscience.
Jonathan Goldsmith, in Chapter 11, ‘Closing the gate on SLAPPs’, dives
deeper into SLAPPs. After discussing the definition and highlighting a few
recent examples, it turns to the role of lawyers. How have some stakeholders
attacked lawyers for their role, and how have some lawyers responded? This
discussion touches on the essential questions of whether a lawyer has a duty
beyond the client, to some sense of the public interest, and, if the lawyer does,
is that a duty inherent in the qualification and capacity of being a lawyer or
jurisdiction-specific? In any case, the gate is closing. In the European Union
and the United Kingdom state authorities have taken steps to decide some
of these questions by legislating on SLAPPs in cases where they felt that the
lawyers themselves have not taken appropriate action.
Part V ‘Preventing facilitation of illegal activities’
Juliane Kokott starts off the section on the prevention of facilitating illegal
activities with an overview in Chapter 12, ‘The responsabilization of law-
yers’. The responsabilization of lawyers, consultants and accomplices means
holding them accountable for their clients’ or business partners’ behaviors.
Such behavior may range from the nonpayment of taxes, fraud or excessive
emissions in environmental law to the violation or circumvention of sanc-
tions. Also, the lawyers’ reporting obligations and duties to cooperate in the
detection and prevention of circumvention of the law and the prosecution of
abusive and criminal behavior have become numerous, and, often, they are not
clearly defined. The chapter examines those duties in the light of fundamental
rights and the principles of legal certainty and proportionality with a deep dive
into E.U. legislation and case law and sanctions legislation.
Birgit Snijder-Kuipers focuses on a specific type of legislation regarding
the facilitation of illegal activities in Chapter 13, ‘Anti-money laundering:
An EU Perspective’. She discusses present and upcoming European legislation
Lawyers as gatekeepers. Introduction and overview 13
on anti-money laundering (AML) relevant to lawyers. New E.U. regulation
will take effect on July 10, 2027, with many changes, such as introducing
new requirements that lawyers will have to meet, setting out a new definition
of ‘client’ and authorizing the financial intelligence units (FIUs) to suspend
proposed transactions to be executed by lawyers. Three dilemmas will be dis-
cussed. The first dilemma is about the scope of AML services. After briefly
describing the current framework, the scope of AML-regulated services as
they relate to lawyers will be outlined. The second dilemma relates to the
change of AML-regulated services into non AML-regulated services (and vice
versa). The third dilemma relates to the introduction of the provision that a
counterparty of a client could be regarded as client for a lawyer. This provision
conflicts with the professional rules for lawyers.
Ali Yildiz and Kevin Dent show the flipside of the coin in Chapter 14,
‘Crackdown on lawyers after the coup: Abuse of anti-terror laws in Tür-
kiye’. They examine the post-2016 crackdown on lawyers and bar associa-
tions in Türkiye through the abusive application of anti-terrorism legislation.
They analyze how vague criminal provisions have been used to prosecute law-
yers for professional activities such as legal representation, public advocacy
and association with clients. Drawing on domestic law, European Court of
Human Rights case law and international standards, the chapter demonstrates
how these practices undermine the independence of the legal profession
and weaken institutional mechanisms designed to prevent torture and other
human rights violations. The targeting of bar associations and their leadership
is shown to have produced a chilling effect on legal defense and accountability.
The authors conclude that the erosion of lawyers’ independence poses a seri-
ous threat to the rule of law and democratic governance in Türkiye.
Part V ‘Preventing facilitation of unwanted or morally objectionable
activities’
W. Bradley Wendel opens the discussion on preventing the facilitation of
unwanted or morally objectionable activities in Chapter 15, ‘Morally moti-
vated gatekeeping and the rule of law’. He discusses the question of whether
lawyers may refuse to provide legal services to clients because the client itself,
or the client’s objectives for the representation, are morally repugnant, in the
lawyer’s judgment. Members of the public sometimes criticize lawyers for
representing morally objectionable clients. This raises the question whether
morality can ever be a basis for making gatekeeping decisions. The traditional
view, embodied in the cab rank rule for British barristers and the principle of
non-identification in the UN Basic Principles on the Role of Lawyers, is that it
is inappropriate to direct criticism or blame at lawyers who represent morally
disagreeable clients. While Wendel continues to endorse the standard concep-
tion of the lawyer’s role, he does so with a modification to clarify that lawyers
14 Lawyers, Gatekeeping and Access to Justice
are accountable to other members of the political community. That does not
entail a direct inference from the client’s identity or objectives to a conclusion
that the lawyer is doing something wrong. Rather, it calls for a particular kind
of justification that engages lawyers in dialogue with other members of the
political community.
Daisuke Takahashi takes on the question of activities considered to be
objectionable based on human rights and soft law in Chapter 16, ‘Wise coun-
sellors or gatekeepers? Lawyers guiding businesses to respect human
rights and the challenges in Japan’. Drawing on the UN Guiding Princi-
ples on Business and Human Rights (UNGPs) and recent guidance from the
International Bar Association (IBA), he examines how lawyers can advance
business and human rights (BHR) as both ‘wise counsellors’ and ‘gatekeepers’,
using Japan as a case study. After mapping Japan’s policy architecture, includ-
ing the National Action Plan (NAP), human rights due diligence (HRDD)
guidelines, public procurement rules, and corporate governance and disclo-
sure regimes, he highlights Japanese lawyers’ roles as wise counsellors along
three avenues: (1) supporting corporate HRDD (including the Japan Fed-
eration of Bar Associations [JFBA] HRDD Guidance and the establishment
of BHR Lawyers Network Japan); (2) ensuring access to remedy (through
engagement as independent experts and leadership in operational-level griev-
ance mechanisms such as JaCER); and (3) driving BHR policy (by facilitating
multi-stakeholder NAP processes and supporting procurement frameworks).
Finally, he explores gatekeeper challenges that persist under a soft law regime:
professional conduct risks, anti-money laundering gaps that can enable human
rights abuses, capacity constraints among SMEs and potential tensions with
access to legal services and lawyers’ professional duties. He concludes that
fulfilling both roles remains a work in progress, requiring strengthened profes-
sional standards, practical tools and cross-jurisdictional learning.
Birgit Spiesshofer takes a deep dive into gatekeeping responsibilities estab-
lished by supply chain regulation and soft law in Chapter 17, ‘Gatekeeping
responsibilities in the supply chain’. She states that the attorney–client rela-
tionship, although a supply chain relationship, is a special business relationship,
qualified by the attorneys’ official role in the administration of justice, in par-
ticular the principle of independence and confidentiality obligations. This
qualification must be taken into consideration when applying the UN Guid-
ing Principles or other CSR/ESG norms and their responsibility to respect
human rights and the environment to the attorney–client relationship in both
directions. This means that lawyers should not be held responsible like any
other business as gatekeepers of their clients regarding their clients’ negative
(but legal) impacts on human rights and the environment connected to the
mandate, as well as, vice versa, that clients should not be gatekeepers of their
lawyers as suppliers of services without limitation imposing their CSR/ESG
requirements without exception, including the lawyers’ relationship to other
Lawyers as gatekeepers. Introduction and overview 15
clients. The question is also whether civil society actors or clients should define
the professional ethical standards lawyers shall adhere to. She concludes that
although human rights and the environment are desirable goals, it should be
taken into consideration that ‘social expectations’ and ‘courts of public opin-
ion’ can open the door to less desirable authoritarian moves.
Shawn M. Harpen and Ellyn S. Rosen follow up in Chapter 18, ‘Legal
ethics and climate change: A view from inside client–lawyer representa-
tion in the United States’. In the United States, lawyers’ obligations to their
clients under the rules of professional conduct apply regardless of the lawyer’s
personal views on controversial subjects. Climate change is one such topic.
The client determines the objectives of the representation; the lawyer must
consult with the client about the means used to achieve those objectives within
the bounds of the law and any limitations on the lawyer’s services. This chapter
explores how certain ethical obligations of lawyers during the course of the
representation (e.g. competence, communication and confidentiality) may be
implicated in addressing the risks and benefits of climate-related matters and
proposed courses of action with their clients.
Finally, Hans Gribnau focuses in Chapter 20, ‘Tax advisers as gatekeep-
ers’, on lawyers’ involvement in legal but illegitimate aggressive tax plan-
ning as the most controversial component of tax advisory work. Aggressive
tax-planning arrangements comply with the letter but not with the spirit of
the law. They reduce governments’ capacities to provide goods and services
to sustain society at the expense of distributive justice and public trust. Tax
advisers are often involved in these tax minimization arrangements. However,
tax advisers are gatekeepers of the integrity of the tax system. They may also be
lawyers, gatekeepers of the rule of law, and as such be regulated by law. Three
kinds of obligations will be distinguished: legal obligations, such as reporting
obligations; professional ethical obligations, laid down in tax advisers’ codes of
conduct; and societal or moral expectations, voiced by civil society, politicians
and institutional investors, concerning the payment of a fair share of tax. Pro-
fessional ethical codes have recently internalized some of these expectations
although they do not contain any strict requirements in this regard.
Part VII ‘Way forward and conclusion’
The volume is concluded with an analysis, in which Birgit Spiesshofer and
Jonathan Soeharno summarize lessons learned from the chapters and sug-
gest the way forward for further research and political strategies for regulators
and bars.
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