Provide a substantive analysis of the position Below. Please identify at least 1 strength and 1 weakness in this analysis and argument using at least 2 sources, including the bible. Any sources cited must have been published within the last five years. Acceptable sources include the textbook, law review articles, peer-reviewed journal articles, and the Bible.
Position:
atekeepers In the compliance context, a “gatekeeper” is an entity that holds a position or role such that another entity needs its approval, support, or certification in order to accomplish organizational goals.[1] A gatekeeper can play a “zealous advocate” role or a “public servant” role.[2] The zealous advocate role indicates that the gatekeeper serves for the interests of the client organization—advocating its interests and position, and “carrying out the gatekeeper function to serve the vest interests of the client within the bounds of the law.”[3] The public servant role, by contrast, indicates a gatekeeper serving responsibilities and interests beyond a client organization, “ensuring that the organization complies with governing norms.”[4] I think the zealous advocate role is more optimal—it ensures that the organization views the compliance gatekeeper as an enable and potential ally for successful coordination, rather than an adversarial obstacle they need to overcome. Attorneys as Gatekeepers An attorney as a gatekeeper has three major advantages associated with the lawyer’s profession. First, it introduces attorney-client privilege to the gatekeeper role. This privilege provides significant protection from communications between the attorney and the client from being revealed or compelled to be provided “in court or other official proceedings or investigations.”[5] This assists the gatekeeper and the organization from the perspective of the zealous advocate. Second and similarly, the work product doctrine means that documents and notes prepared by the attorney in the course of representing his client organization are protected from compulsion. Finally, the attorney gatekeeper enables “the defense of reliance on counsel.”[6] This defense allows the organization to argue they had sought legal counsel and reasonably believed their actions were legally permissible, thus making it more difficult for a prosecution or a regulator to prove the organization acted in a “culpable mental state.”[7] “Up the Ladder” and ABA Model Rule 1.13. If a lawyer in an organization reasonably believes that the person or offices to which he reports are not acting in accordance with the interests of the organization, the that lawyer is expected to refer the matter to higher authorities in the organization.[8] This is the “up-the-ladder” reporting rule. This may seem obvious, but there are competing interests here. Traditionally, communications between the lawyer and the entities in the organization he suspects of being problematic might normally be protected by client privilege. In some situations, reporting to the higher authorities might not be in the interests of the organization. Differences between Accountants and Auditors While accountants and auditors can both play gatekeeping roles for an organization, they are very different. Accountants serve the organization in preparing financial documents and reports, while auditors serve 3rd parties (shareholders, oversight entities) in conducting independent review of such activities.[9] Accountants are loyal to the client organization, while the auditors are loyal to those other 3rd parties and investors.[10] How has the Sarbanes-Oxley Act changed the auditing and related compliance landscape? SOX established several measures to ensure the independence of compliance auditing. It mandates the audit committee, made up of independent directors; it established multiple services that auditing firms cannot provide for their auditing clients (such as bookkeeping, actuarial services, appraisal & valuations, etc.); it subjects all auditing services to pre-approval by the independent audit committee; it limits the auditing partnership to 5 years at a time; directs certain indicators that the audit firm must report to the audit committee; and it prohibits securing the services of an auditing firm if the audit firm and the client organization share a CEO, CFO, CAO, controller, or similar position.[11] Sarbanes-Oxley § 404(b) SOX section 404(b) requires an auditor to provide attestation and an assessment report of the organization’s internal controls.[12] This makes the auditor a more active participant in the compliance landscape, for she is more directly accountable for identifying and reporting deficiencies. The auditor must perform systematic, on-site evaluations of internal controls, must understand the operations controlled & expertly assess those controls.[13]