Edward J. Waitzer
I'm writing, in my personal capacity, to express concerns about certain aspects of proposed Part 205 - Standards of Professional Conduct for Attorneys Appearing and Practicing Before the Commission in the Representation of an Issuer. As Chairman of a Canadian law firm with offices in London, New York, Hong Kong and Sydney (as well as across Canada) I have also participated in the preparation of a number of other comment letters on behalf of the Law Society of Upper Canada and the Canadian Bar Association. I do not propose to repeat the points made in those and numerous other comment letters. Rather, I am commenting in this submission from my perspective having served as a regulator (Chair of the Technical Committee of the International Organization of Securities Commissions) and as an active participant in the promotion of international standards for securities markets (including Chair of the Strategy Working Party which developed the plan for the restructuring of what is now the International Accounting Standards Board).
Self-regulation has historically been a cornerstone and strength of U.S. securities markets. Leaving aside the obvious cost-savings and efficiencies which can be realized through self-regulation, it tends to require market participants to "buy-in" to the goals of regulation and their own stake in it. Former Chairman (and Supreme Court Judge) W.O. Douglas referred to this as "ethical standards beyond those any law can establish" and stated,
My fundamental concern is that, in its aggressive (both as to scope and timing) efforts to implement the Sarbanes-Oxley Act, the Commission take care to not do irreparable damage to professional self-regulation.
Likewise, in proposing with such haste an extraordinarily broad scope for Part 205 and seeking to regulate attorney-client relationships through the "noisy withdrawal" requirements, I am concerned that the Commission will be using a blunt regulatory instrument which will damage professional relationships (and the concept of privilege) in profound and (presumably) unintended ways.
Finally, by extending the scope of the proposed requirements to non-U.S. lawyers, many of whom will not know that they are "appearing and practicing before the Commission" the proposed requirements offend principles of international comity and may set back much broader (and, in my view, more pressing) efforts to achieve convergence towards international standards for financial regulation.
None of this is necessary, nor necessarily within the scope of Section 307 of the Sarbanes-Oxley Act. Congress is not requiring the Commission to deal with the "noisy withdrawal" provision or the extension of Part 205 to non-U.S. lawyers by January 26 (or indeed at all).
As is often the case with broad legislative initiatives, the "devil is in the details". Presumably, that is why Congress entrusted the task to the Commission, which is counted on to exercise its unique expertise in a manner removed from immediate political exigencies. It would be a great disservice to the stature and effectiveness of the Commission for it to adopt these particular proposals without the opportunity for more careful deliberation by all who will be affected. I hope the Commission will exercise more cautious and thoughtful judgment before rushing to go beyond that which is required of it under the Sarbanes-Oxley Act.