Speech by SEC Staff:
Remarks before the American Bar Association Section of Business Law 2004 Spring Meeting
Giovanni P. Prezioso
U.S. Securities and Exchange Commission
April 3, 2004
As a matter of policy, the Securities and Exchange Commission disclaims responsibility for any private publication or statement of any SEC employee or Commissioner. This speech expresses the author's views and does not necessarily reflect those of the Commission, the Commissioners or other members of the staff.
Good afternoon and thank you for the kind introduction. It is a great pleasure to have the opportunity to speak at this meeting of the ABA's Business Law Section. Let me note at the outset that, as always, the views I express today are solely my own and do not necessarily represent those of the Commission or my colleagues on the staff.
My topic this afternoon is the Commission's regulation of lawyers under Section 307 of the Sarbanes-Oxley Act. As you are well aware, the Commission's attorney conduct rules have been the subject of a great deal of debate within the bar, much of it focused on the issue of when an attorney may or must disclose to the Commission serious misconduct by a public company. Among other things, this debate has highlighted a number of apparent tensions: between the duty to serve shareholder interests, on the one hand, and the duty to protect client confidences, on the other; between federal authority to regulate attorneys appearing and practicing before the Commission and traditional state regulation of attorneys; and between competing policy views about the appropriate role of lawyers as gatekeepers under the federal securities laws.
Rather than rehash these debates or repeat to you the Commission's well-known positions on these issues, I would like to take this opportunity to step back and look at the Commission's lawyer rules, particularly the "permissive disclosure" provisions of those rules, within the broader landscape of state and federal law. When viewed from this perspective, two interesting themes emerge.
First, the Commission's rules reflect well-established principles that have long existed under state and federal law. This is especially true to the extent that they focus on preventing a lawyer's participation in illegal conduct detrimental to the interests of a corporate client. In this sense, the rules promote uniformity and incremental change, rather than impose any radical new responsibilities on lawyers.
Second, the permissive disclosure provisions of the Commission's rules are wholly consistent, in my view, with the key underlying theme of Section 307 namely, obligating lawyers to put the interests of their corporate client, and thereby investors, ahead of the interests of the individual officers and directors that happen to be serving the corporation at a given moment.
Let me start with a story. It is based on actual events recounted to me by the lawyer involved, but I have made a few changes for simplicity's sake. The story involves a lawyer who was representing an issuer in an IPO. A short time before the registration statement filed by the company was to be declared effective, the lawyer became aware that some of the company's directors might have been involved in past criminal activity. The lawyer asked for more information, but was not given an adequate or convincing explanation. He decided to investigate the matter on his own and learned from a review of public reports that two of the company's directors, who were relatives, had been convicted of felonies. This was particularly troubling since, together with another family member, these two directors controlled a majority of seats on the board.
The lawyer informed the company's board of what he had learned. He pointed out that, unless the two directors resigned, the convictions would have to be disclosed in the prospectus, thereby jeopardizing completion of the transaction. He was again given an inadequate response, and in fact the board made clear that it would proceed with the transaction and would not make the disclosure.
With little other recourse at this point, the lawyer informed the directors that unless they appropriately addressed the problem, he would report the matter to the SEC at four o'clock the next day. While standing in the lobby of the Commission's regional office that day, at five minutes before the appointed hour, the lawyer's cell phone rang. It was his client the directors would resign. Having lost confidence in the board's assurances, he said that he would like the directors to fax the resignation letters to him immediately. They agreed and asked where he was so they could send the fax. When he told them, they politely asked if it would perhaps be possible to send the fax to a location other than the SEC's regional office.
Was this a good result? Some would argue that it was not that even though the lawyer prevented a significant violation of law, the outcome was not worth undermining the relationship of trust between the lawyer and the officers and directors of the client corporation.
As you might surmise, I see it differently. Through his actions, the lawyer chose an effective path if perhaps not the only path to complying with the universal prohibition against knowing participation in a crime or fraud. The lawyer also zealously served as an advocate for the interests of his client the corporation, rather than its management.
But rather than simply ask you to accept my assessment of the lawyer's conduct, I would like to take a few minutes to consider his actions in light of state and federal law doctrines that applied even before the Commission adopted its permissive disclosure rule last year. I will limit myself to three areas: (i) state law rules governing professional responsibility, (ii) laws governing agency and fiduciary duties, and (iii) federal prohibitions on aiding and abetting violations of the securities laws.
State Law Rules of Professional Responsibility
I would like to start with an area most of you know well the rules of professional responsibility. It has long been a core principle of those rules that a lawyer may not knowingly assist in a client's fraud.1 What does this mean for the lawyer in my story? It means at a minimum that, once he learned of his client's material misrepresentations, he could not assist the client in conducting an offering of securities based on those misrepresentations.
It is also well settled under professional responsibility rules that an attorney for a corporate client represents the corporation as whole and not the individual officers.2 A corollary to this principle and one that is now codified in the ABA's Model Rules of Professional Conduct is the duty of a corporate lawyer to put the interests of the corporation ahead of its officers and, if necessary, to report "up the ladder" violations of law that could result in substantial injury to the organization.3
As someone who spent twenty years in private practice before coming to the Commission, I know it is uncomfortable to go "over the head" of the individual at the company who had the good sense to hire you and who probably is responsible for paying your bills. And, in my view, lawyers in most cases should make every attempt to work things out at a routine level with the company's officers. But if that doesn't work, and there is a serious risk of harm to the organization, then a lawyer generally has a duty to raise the issue at a higher level. Following this principle, the lawyer in my story took the appropriate steps to fulfill his duty to the corporation upon learning of a potential securities law violation, he raised the issue all the way up to the members of the board.
But what happens if reporting "up the ladder" doesn't stop the fraud? How should a lawyer fulfill the duty to serve the interests of the client organization if the officers and directors are betraying those interests? One potential approach is for the lawyer to "report out" the violation to the Commission or another authority an approach that is permitted in some circumstances in the vast majority of states and is now permitted under the ABA's Model Rules.
Under the ABA's Model Rule, adopted last summer, a lawyer may in some cases reveal confidential information relating to his representation to the extent necessary to prevent substantial injury to an organization, if the highest authorities in the organization fail to address a clear violation of law.4 The ABA's formulation of its model rule differs somewhat from the Commission's permissive disclosure rule.5 It addresses, however, a similar and limited set of circumstances: not "ratting out" a client simply to reveal past misconduct, but rather disclosing information to prevent or remedy substantial harm to the organization that may result from serious violations of law.
The story of the lawyer in the Commission's regional office fits squarely within the scope of this permissive "reporting out" regime. The lawyer raised his concerns to the highest authority in the organization to no avail, and one could reasonably conclude that the misrepresentation in question would have caused substantial injury to the organization.
While the permissive disclosure rules of the ABA and most states do not specify to whom the information should be revealed this question is left to the judgment of the lawyer disclosure to the Commission often may be the most appropriate step, especially in the absence of an effective mechanism to communicate directly with shareholders.
Laws of Agency and Fiduciary Duties
Another way to look at the story I have related is through the lens of agency and fiduciary principles. As you know, the doctrines of agency and fiduciary duties are complex, cut across many different substantive areas of law and vary from state to state. In light of that complexity and variability, my focus will be on general principles that bear on a lawyer's duties to a corporate client, as well as the duties of its officers, as agents of the corporation,6 and directors, as fiduciaries for the corporation and its shareholders. 7
What are the principal responsibilities that can arise for a corporate lawyer within the framework of agency and fiduciary law? First, in most cases a lawyer will be acting as an agent of a corporate client and, as such, has a fiduciary duty to act in the interests of the corporation.8 Second, the lawyer will also generally have a responsibility not to assist any other agents or fiduciaries, such as officers and directors, in betraying the interests of the corporation.9 These responsibilities remind us of key duties owed among different constituencies within a corporate client. They also remind us that, under these doctrines, a lawyer has an obligation even in the absence of professional responsibility rules to act in the interest of the corporation. That obligation may include disclosure of an officer's breach of duty or violation of law to other representatives of a corporation.10
To sharpen the point, let me offer two analogies in distinct, but related, contexts. First, consider a trustee that, using trust assets, retains a lawyer to represent a trust. In the course of the representation, the lawyer becomes aware that the trustee is defrauding the trust's beneficiaries. Would it surprise anyone to learn that in some cases the trustee may not assert the attorney-client privilege against the beneficiaries?11 Or that there may be circumstances in which the lawyer risks liability if he fails to inform the trust beneficiaries of the wrongdoing?12
Second, consider an agent that a company has retained to assemble a parcel of real estate for a factory. The agent, whose expenses are reimbursed by the company, retains a real estate attorney. The attorney learns that the agent is accepting kickbacks from those selling land to the company. I think most of us would expect the lawyer to inform the company, which after all is owed independent fiduciary duties by both the lawyer and the agent.13
Where there is a betrayal of fiduciary duties by the senior officers and directors of a public corporation, should a different principle apply? The practical challenge is naturally greater for a lawyer seeking to protect the interests of a corporation betrayed by its officers and directors. A lawyer for a public company cannot communicate directly with shareholders without making, in effect, public disclosure a significant consideration that must be taken into account. At the same time, in many cases it may not be feasible, or even appropriate, to communicate directly with shareholders. In those cases, granting the attorney authority to advise an appropriate regulator charged with protecting the interests of investors provides an option wholly consistent with a lawyer's obligation to protect the interests of the corporation whose officers or directors have betrayed their trust.
Aiding and Abetting Liability under the Federal Securities Laws
The legal doctrines I have discussed thus far address the responsibilities of lawyers when confronted with misconduct by officers and directors of their corporate clients. It is important to remember, however, that lawyers themselves must also comply with the federal securities laws including the provisions of those laws that prohibit persons from aiding and abetting or causing violations by others.
Aiding and abetting liability generally has not been in the forefront of lawyers' minds at least until recently since the 1994 Supreme Court decision in Central Bank, the case that eliminated any private cause of action based on aiding and abetting theories.14 Yet, as many of you know, Congress made clear, promptly after that decision, that the Commission retains the authority to bring enforcement actions against those who aid and abet violations of the Exchange Act.15 And I want to assure you, in the eyes of the Commission enforcement staff, aiding and abetting liability is alive and well.16
To illustrate the potential impact of aiding and abetting liability, let's imagine another situation. A lawyer represents a public company. She has documented and closed a series of transactions in which her client has sold assets to a bank with which it has an ongoing relationship. Shortly before the closing of another similar asset sale, the lawyer learns that the client and the bank have an unwritten agreement to unwind all of the transactions at a later date for a fixed price that will give the bank a generous rate of return. The lawyer is worried that she may have helped her client consummate improper off-balance sheet transactions and that they may have resulted in materially misleading financial statements. And she is rightly concerned that if she closes the pending transaction, she may be liable for aiding and abetting a fraud.
What should she do? Well, naturally she should immediately stop providing any assistance to the client that could further the fraudulent scheme. But what if the client proposes to go ahead and close the transaction without her using the documents that she drafted? And what about the prior fraudulent transactions still reflected in the company's public financial statements isn't there an ongoing violation of the securities laws in which she participated, albeit unknowingly? Can she continue to represent the company at all?
It may be possible, as an analytical matter, to take the position that the lawyer need only resign and provide no further assistance once she becomes aware of the violation. In the real word, though, the facts are not always as clear-cut as in a hypothetical, and different fact finders may draw different conclusions about the nature and circumstances of a lawyer's involvement in a particular transaction. A lawyer may well want the flexibility to follow a course of action similar to that of our lawyer in the SEC regional office a course of action that not only advances the interests of the corporation, but also provides the lawyer with confidence that she has complied with applicable law.
Objectives of Section 307
It is useful to turn back to Section 307 of the Sarbanes-Oxley Act after considering the basic principles underlying these three areas of law professional responsibility rules, agency and fiduciary duties, and aiding and abetting liability. Notably, each is reflected in the statute and its legislative history.
First, the legislation's sponsors expressly underscored the principle, generally recognized in state ethics rules, that an attorney owes a duty of responsibility and loyalty to the corporation and its shareholders, and not to any particular officers or directors.17
Second, the statute recognizes the key role of agency and fiduciary principles in establishing lawyers' responsibilities. Most notably, the Commission was specifically instructed to include not only violations of the securities laws, but also breaches of fiduciary duties, among the items subject to "up-the-ladder" reporting. Further, Section 307 does not limit itself to violations or breaches by the public company itself the statute's "up-the-ladder" provisions specifically encompass misconduct by "any agent" of the company as well.
Third, the legislative history of Section 307 includes specific references to lawyers' potential liability for aiding and abetting violations of the federal securities laws emphasizing that Section 307 will "put attorneys on the right course."18
Commission Attorney Conduct Rules under Section 307
Now what does all this mean for the Commission and its rules under Section 307? Let me offer a few thoughts.
First, I want to underscore the consistency of the Commission's rulemaking under Section 307 including the permissive reporting out provisions of Section 205.3(d)(2) with the well-established legal principles underlying each of the areas of law that I have discussed today and the legislative history of the Sarbanes-Oxley Act.
Section 307 contains a general mandate authorizing the Commission to adopt "minimum standards" of conduct for attorneys appearing and practicing before it on behalf of public companies. In addition to this general mandate (which is often overlooked in public comment on the statute), Section 307 also specifically instructed the Commission to adopt a rule on "up-the-ladder" reporting requiring evidence of material violations to be brought to senior management and, in the absence of an appropriate response, to the board of directors.
What happens, though, in cases where a board of directors fails to prevent, or is complicit in, illegal conduct that has been reported "up-the-ladder"? In at least some of those situations, the board is no longer acting in the interests of the corporation and its shareholders and indeed may itself have breached its duty to the shareholders and to the corporation. Section 307 does not explicitly address the question of what should be done if the board does not take appropriate action. But it does unambiguously authorize the Commission to adopt additional "minimum standards" that go beyond the specific "up-the-ladder" provisions set out in Section 307.
What should guide the Commission in establishing those additional standards? The statute tells us that the standards must be adopted "in the public interest and for the protection of investors." They should also, I believe, generally reflect the three key concepts that I have discussed today and that are reflected in both the design of the statute and its legislative history namely, that a lawyer (i) should serve the interests of a corporate client as an organization, (ii) should not assist agents and fiduciaries in conduct inconsistent with the interests of the principal, and (iii) should not assist in violations of the law.
The Commission's permissive reporting out rule, in my view, fits squarely within these objectives. It assists public company lawyers in advancing the interests of their true client, the corporation, in circumstances where the client's agents have failed in their duties and are impermissibly seeking their attorney's assistance to engage in misconduct.
In this sense and I think the point bears emphasis the Commission's permissive reporting out rule is not only broadly consistent with the ethics rules of the vast majority of states, it is also entirely consistent with the lawyer's obligation to put the interests of the true client the corporation ahead of the interests of the management of the corporation. It does not give the lawyer carte blanche to betray confidences to advance the lawyer's interests on the contrary, it is narrowly tailored to provide the lawyer with the necessary leverage to persuade management, or failing that to inform the Commission if necessary, to prevent or rectify a legal violation by the corporation likely to cause substantial injury to the financial interest of the company or investors.
Let me turn to a second point. There are significant benefits to having the additional safeguard of the Commission's rules, notwithstanding the other state and federal laws I have discussed. The Commission's rules provide a uniform standard that can be applied to all lawyers appearing and practicing before the Commission on behalf of public companies operating in our national markets. The rules also bring the teeth of the Commission's enforcement powers to bear in an area that has traditionally posed a challenge for state disciplinary authorities. Moreover, the mandate of the Commission differs from that of the state bars the Commission's overriding objective is investor protection, as recognized in the language of Section 307 itself.
Third, and this is a related point, the Commission and its staff are strongly committed to the attorney conduct rules and to the principles that underlie them. We take the rules very seriously and will enforce them vigorously when appropriate. At the same time, the rules by their terms provide lawyers with a good deal of latitude to make professional judgments and take actions appropriate to the circumstances, and we intend to respect that latitude and provide support to lawyers exercising their judgment reasonably and in good faith. All of us are human even SEC lawyers and we recognize that lawyers' knowledge and judgment cannot always be perfect.
Equally important, we are committed to enforcing the attorney conduct rules in a manner that will not chill zealous advocacy by lawyers appearing and practicing before the Commission. To address this concern, we will work hard to provide the Commission with independent analysis and input from the Office of the General Counsel, with a perspective distinct from that of the Enforcement Division, in all enforcement actions against attorneys under the Commission's rules.
In discussing the Commission's commitment to these rules, I suppose I can't avoid mentioning (in spite of the warm welcome I've had here in Washington, and expect to have on any future trips to California) that the Commission takes the position that its rules preempt any conflicting provision of state law. The reasons for our position are straightforward and are set out in my letter to the Washington State Bar Association last year, which is on the Commission's website. In brief, it is our view that, where a federal rule says you may do something and a state rule says you may not, there is a conflict and the federal rule should prevail.
In this connection, I would urge any lawyer who would like to make a disclosure under the Commission's rules, but who is concerned about a potential conflict with state bar rules to consult with us, either directly or through counsel. We on the staff would appreciate the opportunity to work with a lawyer facing such a conflict, either in addressing the issues before state bar authorities or, if necessary, in court. My expectation is that the Commission would be favorably disposed to supporting attorneys seeking to rely on the preemptive effect of its rules.
Fourth, I know that many of you are curious about the status of the Commission's pending proposals regarding mandatory "noisy withdrawal." As you know, the Commission has already adopted rules meeting, and indeed going beyond, the minimum requirements of Section 307. Those rules have now been in effect for eight months. At a staff level, we are continuing our consideration of whether to recommend that the Commission also adopt a mandatory "noisy withdrawal" rule. We have not yet reached a final decision concerning whether, or when, to make a recommendation for further Commission action but I can tell you that we are closely watching how lawyers are responding to the current rules. This includes monitoring how well individual lawyers comply with the new rules, as well as the extent to which the bar, acting through national and state professional organizations, undertakes its own initiatives to address the concerns raised by Congress in enacting Section 307.
Finally, and this brings me back to the story about the lawyer with his cell phone ringing in the Commission's regional office, there is good reason to think that the rules are working. While much of the evidence is still anecdotal, we're hearing that the rules are, in fact, strengthening lawyers' abilities to serve their clients. And I am not just talking about dramatic stories like the lawyer in our regional office, or the well-publicized case in which a law firm reportedly withdrew from its representation because of the client's failure to disclose material information and then informed the board that it would consider notifying the Commission of its reasons for withdrawal. I am also talking about the positive effects of these rules on day-to-day communications between in-house and external counsel and their clients. Not only is there more communication these days about legal compliance, but lawyers increasingly appear to have the tools needed to carry the day when presenting their clients with unpleasant but correct legal advice.
I would like to close on that positive note. I would also to express my appreciation to the many members of the bar who have worked hard since the enactment of Section 307 to help restore confidence in the role of lawyers as counsel to public companies. These ongoing efforts by lawyers to improve the profession can do a great deal to advance the interests of all U.S. investors.
Many thanks for giving me so much of your time this afternoon.
1 See Rule 1.2(d) of the ABA's Model Rules of Professional Conduct ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . .").
2 See Rule 1.13(a) of the ABA's Model Rules of Professional Conduct ("A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents."). See also Preliminary Report of the American Bar Association Task Force on Corporate Responsibility (July 16, 2002) (the "Cheek Report").
3 See Rule 1.13(b) of the ABA's Model Rules of Professional Conduct.
4 See Rule 1.13(c) of the ABA's Model Rules of Professional Conduct (Except where a lawyer has been hired specifically to investigate, or defend against a claim arising from, an alleged violation of law, "if (1) despite the lawyer's efforts . . . the highest authority that can act on 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 (2) 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 . . ., but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.").
5 17 C.F.R. § 205.3(d)(2).
6 See Joseph Greenspon's Sons Iron & Steel Co. v. Pecos Valley Gas Co., 156 A 350 (Del. Ch. Ct. 1931) (corporation can only act through its agents; its officers are its agents).
7 See Gottlieb v. McKee, 107 A.2d 240 (Del. Ch. Ct. 1954) (directors in conduct of corporation are fiduciaries in relation to corporation and its stockholders).
8 See Restatement 2d of Agency, § 387 ("[A]n agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency.").
9 See Restatement 2d of Agency, § 405 ("An agent is subject to liability to the principal . . . if he directs, permits, or otherwise takes part in the improper conduct of other agents.").
10 See Restatement 2d of Agency, § 381 ("[A]n agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person."); see also Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.3:108 at 79, n. 2.1 (2d ed. 1997 Supp.) ("Since a fiduciary is required to provide truthful and complete information to a beneficiary, a competent lawyer for a fiduciary must insure that such information is in fact passed along.").
11 See Riggs National Bank v. Zimmer, 355 A.2d 709 (Del. Ch. 1976) (trustee cannot assert the attorney-client privilege against beneficiaries of a trust) ("The policy of preserving the full disclosure necessary in the trustee-beneficiary relationship is here ultimately more important than the protection of the trustees' confidence in the attorney for the trust. . . . The fiduciary obligations owed by the attorney . . . were to the beneficiaries as well as to the trustees.").
12 See Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.3:108 at 78 (2d ed. 1996 Supp.) ("Where the lawyer's client is a fiduciary . . . there is a third party in the
picture (namely the beneficiary) who does not stand at arm's length from the client; as a consequence, the lawyer also cannot stand at arm's length from the beneficiary. Clients with such responsibilities include trustees, . . . corporate directors and officers vis-à-vis their corporation, and many other relationships. Since the lawyer is hired to represent the fiduciary, and the fiduciary is legally required to serve the beneficiary, the lawyer should be deemed employed to further that service.")
13 See Restatement 2d of Agency, § 381, Comment (a) ("An agent may have a duty to act upon, or to communicate to his principal or to another agent, information which he has received, although not specifically instructed to do so. The duty exists if he has notice of facts which, in view of his relations with the principal, he should know may affect the desires of his principal as to his own conduct or the conduct of the principal or of another agent." (emphasis added)).
14 Central Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164 (1994).
15 See Securities Exchange Act Section 20(e), 15 U.S.C. § 78t(e).
16 The Commission has stated that the following is required to establish aiding and abetting liability: (i) a violation by another party, (ii) a general awareness or knowledge by the aider and abettor that his or her actions are part of an overall course of conduct that is improper, and (iii) substantial assistance by the aider and abettor in the violative conduct. Robert L. McCook, Exchange Act Release No. 47572 (Mar. 26, 2003). The aider and abettor does not necessarily have to have specific knowledge of every aspect of a fraudulent scheme general knowledge of the fraud may be sufficient. In some cases, this may be established by a showing of recklessness. See Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 44 (2d Cir.), cert. denied, 439 U.S. 1039 (1978) ("[A]t least where, as here, the alleged aider and abettor owes a fiduciary duty to the defrauded party, recklessness satisfies the scienter requirement."); see also IIT v. Cornfield, 619 F.2d 909, 923 (2d Cir. 1980).
17 The remarks of Senator Edwards on the floor are notable: "If you are a lawyer for a corporation, your client is the corporation and you work for the corporation and you work for the shareholders, the investors in that corporation; that is to whom you owe your responsibility and loyalty. . . . One of the most critical responsibilities that those lawyers have is, when they see something occurring or about to occur that violates the law, breaks the law, they must act as an advocate for the shareholders, for the company itself, for the investors. . . . This amendment is about making sure those lawyers, in addition to the accountants and executives in the company, don't violate the law and, in fact, more importantly, ensure that the law is being followed." Statement of Senator Edwards, Congressional Record, July 10, 2002, pp. S6551-S6552.
18 Statement of Senator Enzi, Congressional Record, July 10, 2002, p. S6555.