The Lawyer as Gatekeeper The Backdrop

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1 Lawyers as Gatekeepers The SEC s New Focus on Inside and Outside Counsel Julie M. Allen Frank Zarb National Conference of the Society of Corporate Secretaries and Governance Professionals June 28, The Lawyer as Gatekeeper The Backdrop In the wake of Enron, Worldcom, Adelphi, Tyco, among the questions was Where were the lawyers? Congress responded with SOX Section 307 Reporting Up and Out As initially proposed by the SEC, the attorney conduct rules would have required not just up the ladder reporting but mandatory noisy withdrawal Lawyers were opposed to mandatory noisy withdrawal as at odds with their ethical obligations The SEC adopted Rule 205 of its Rules of Practice permissive reporting out The Model Rules were revised to permit voluntary disclosure of client confidences in certain circumstances 2

2 The Lawyer as Gatekeeper Today The SEC is increasing enforcement actions against lawyers In 2013, the SEC brought over 25 cases against lawyers - Federal court complaints alleging securities law violations - Rule 102(e) administrative proceedings In some cases, the SEC focuses on the lawyer s failure to advise clients of legal risk The focus in many recent cases has been on lawyers who assist others in schemes to defraud SEC s 2013 Enforcement Release ( ) Gatekeepers The SEC is focused on holding accountable attorneys who have special duties to ensure that the interests of investors are safeguarded. 3 Illustrative Enforcement Actions against Lawyers SEC v. Isselmann - The SEC brought a settled injunction action against GC of ESI, Isselmann, for failure to fulfill his gatekeeper role. Charges were brought against ESI s CFO and controller for accounting fraud. The SEC acknowledged the Isselmann was not involved in the fraud. Rather the SEC filed charges against him for failing to inform the audit committee, the board of directors and the auditors of a significant accounting transaction, which enabled the company to hide the fraud. In re Google, Inc. - Google s GC, Drummond, consented to a cease-and-desist order regarding future violations of Section 5 of the Securities Act. The SEC alleged that Drummond, who issued no-registration opinions for Google stock options, was responsible for Google s Section 5 violations. The SEC relied on its gatekeeper theory, noting the Drummond failed to advise the board about his concerns regarding the availability of the Rule 701 exemption. 4

3 Illustrative Enforcement Actions against Lawyers continued In re Ira Weiss - The SEC sanctioned Weiss, bond counsel for a PA school district, for an opinion regarding the tax exempt status of bonds, finding that he knew or should have known that the bonds tax-exempt status was in doubt. The SEC stated that his conduct was at least negligent. The US Court of Appeals upheld the SEC ruling, noting that under the securities laws, a legal opinion includes an implied representation that the opinion giver rendered the opinion in good faith and with a reasonable basis, which requires that the opinion giver investigate the facts underlying the opinion. 5 Illustrative Enforcement Actions against Lawyers continued In re Jonathan S. Bristol, Esq. - Bristol, a NY attorney who allegedly assisted convicted Ponzi schemer Kenneth I. Starr, was suspended from practicing before the SEC after a criminal conviction for money laundering and his consent to a judgment against him resulting from an SEC complaint against him. SEC v. Frederickson - CA attorney, Frederickson, was sued by the SEC for aiding and abetting a securities fraud scheme by holding himself out to investors as an escrow agent and assuring them as to the security of their investment. He settled and agreed to a permanent bar from appearing or practicing before the SEC. In re Virginia K. Sourlis, Esq. - NJ attorney, Sourlis, was suspended from appearing or practicing before the SEC based on her issuance of an allegedly false no-registration opinion. 6

4 The SEC s Part 205 Rules Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer - Minimum standards - Supplement applicable state standards 7 Appearing and Practicing (Rule 205.2(a)) Appearing and practicing before the Commission is defined very broadly - Transacting any business with the SEC, including communications in any form - Providing advice in respect of the federal securities laws or the SEC s rules and regulations thereunder regarding any document that will be filed with or submitted to the SEC or in connection with the preparation of any such document - Advising an issuer as to whether any information, statement, opinion or other writing is required under the federal securities laws to be filed with or submitted to the SEC 8

5 Issuer as Client (Rule 205.3) When representing an issuer, a lawyer owes his or her professional and ethical duties to the issuer as an organization, and not to the officers, directors or employees with whom the attorney may work or to whom the attorney may communicate advice. 9 Issuer as Client (Rule 205.3) continued Reporting up the ladder required when the lawyer is aware of evidence of a material violation. Evidence means credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent attorney not to conclude that it is reasonably likely that a material violation has occurred, is ongoing or is about to occur. Reasonably likely means more than remote but less than more likely than not. Material violation means a material violation of an applicable federal or state securities law, a material breach of fiduciary duty or a similar violation of any US or state law (a violation of foreign law is not considered a material violation for these purposes). 10

6 Alternatives for Mandatory Reporting Up Report to the issuer s chief legal officer ( CLO ). - The GC or, if none, an in-house lawyer or compliance officer or, if none, the outside lawyer performing a general counsel role. Report to the issuer s CLO and CEO. Report to the issuer s Qualified Legal Compliance Committee ( QLCC ), if they have one. - A subordinate attorney may report to a supervising attorney, who then has the reporting up responsibility. 11 What Happens Next? The CLO must cause an inquiry to be conducted into the possible violation reported. If the CLO cannot reasonably determine that there is no material violation, the CLO must take all reasonable steps to cause the issuer to adopt an appropriate response. If the CLO determines that there is no material violation, the CLO must notify the reporting attorney and so advise him/her. - If the reporting attorney receives what he/she reasonably believes to be an appropriate and timely response has satisfied his/her obligation under the rules. 12

7 What Happens Next? continued A response is appropriate if it causes the reporting attorney reasonably to believe that (i) there is no material violation, (ii) the issuer has adopted appropriate remedial measures or (iii) the issuer, with board or committee approval, has retained an attorney to conduct an investigation and the issuer has implemented remedial recommendations of such attorney or such attorney has concluded that a colorable defense may be asserted. If the reporting attorney does not reasonably believe that he/she has received an appropriate response, he/she must report up the ladder to the audit committee or, if none, another independent board committee or, if none, the full board. If after so reporting up, the reporting attorney does not believe that the issuer has made an appropriate response within a reasonable time, the reporting attorney must explain the reasons for his/her belief to the CLO, the CEO and the directors to whom the report was made. 13 Permissive Reporting Out Under the SEC rules, an attorney appearing and practicing before the SEC may reveal to the SEC confidential information (i) to the extent the attorney reasonably believes it is necessary (a) to prevent the issuer from committing a material violation that is likely to cause substantial injury to the financial interest or property of the issuer or (b) to rectify the consequences of such a violation in furtherance of which the attorney s services were used or (ii) to prevent perjury or fraud on the Commission. Since reporting out is permissive, an attorney must consider applicable state ethics rules. 14

8 Penalties for Failure to Comply with the SEC s Reporting Up Rules Civil injunctions Monetary penalties Cease and desist orders Discipline and suspension from practicing or appearing before the Commission NO criminal liability 15 Model Rules of Professional Conduct Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. - When the client s course of action has already begun and is continuing, the lawyer s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or suggesting how wrongdoing may be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw It may be necessary for the lawyer to give notice of the fact or withdrawal and to disaffirm any opinion, document, affirmation or the like. - A lawyer s assistance in unlawful conduct is not excused by failing to inquire into the client s objectives. 16

9 Model Rules of Professional Conduct Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to the representation of a client unless [the disclosure is authorized by the client] or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of the client to the extent the lawyer reasonably believes necessary, among other enumerated items: - To prevent reasonably certain death or substantial bodily harm. - To prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer s services. 17 Variations on Rule 1.6 CA Rule may only reveal a client confidence to the extent reasonably necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm. NY Rule 1.6 may only reveal client confidence to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing a crime or to withdraw a written or oral opinion or representation previously given and reasonably believed by the lawyer still to be relied upon by a third person where the lawyer learns that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud. 18

10 Model Rules of Professional Conduct Rule 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer acting for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. 19 Model Rules of Professional Conduct Rule 1.13 Organization as Client continued (c) Except [in the case of an attorney hired to investigate or defend an organization in connection with a potential violation of law], if - despite the lawyer s efforts the highest authority that can act of behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and - the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, Then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. 20

11 Model Rules of Professional Conduct Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: - Make a false statement of material fact or law to a third person; or - Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule New York County Lawyers Association Committee on Professional Ethics Formal Opinion 746 (October 7, 2013) New York lawyers may not ethically collect a whistleblower bounty with respect to a client matter, even if disclosure of confidential information is permissible under NY ethics rules. The prospect of a substantial economic benefit for a lawyer from a whistleblower bounty creates an inherent conflict of interest with a lawyer s duty to faithfully represent his or her client. 22

12 United States v. Quest Diagnostics, Inc. (October 25, 2013) Former general counsel formed a partnership with two other former executives of an acquired lab to bring a qui tam action against Quest for violation of the False Claims Act. Action was dismissed based upon the former general counsel s violation of his ethical obligations under the NY Rules of Professional Conduct by using confidential information of a former client beyond what was necessary under the circumstances to prevent the commission of a crime. Federal False Claims Act does not preempt state ethics rules. 23

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