From: K Weiss [kweiss1@tampabay.rr.com] Sent: Thursday, January 23, 2003 9:27 AM To: rule-comments@sec.gov Subject: Rule S7-45-02 January 23, 2003 Mr. Jonathan G. Katz Secretary Securities and Exchange Commission 450 Fifth Street, N.W. Mailstop 6-9 Washington, DC 20549 Re: Implementation of Standards of Professional Conduct for Attorneys, Release Nos. 33-8150, 34-46868; File No. S7-45-02 Dear Mr. Katz, I write in support of the enactment of more stringent requirements for attorneys who represent public companies in their capacity as both in house and outside counsel. Public companies, the economic ships of every American, are now on the rocks. While the captains of those ships may have been the CEO's, it is clearly the lawyers who have been at the helm. Yet they have neither borne nor accepted any responsibility for their actions that have led us to this precipice. For fifteen years I served as in house counsel for several public companies. It is absolutely inconceivable that the abuses recently revealed by Enron, Tyco, Worldcom, Global Crossing and many others could have been accomplished without the direct cooperation and complicity (or negligence) of the general counsel and outside counsel for the companies involved. In every public company the lawyers are far more involved and responsible for the creation and review of SEC filings than the CEO. It is obvious, therefore, that the lawyer(s) who prepared and reviewed the documents take responsibility for their accuracy. Not only are the companyıs general counsel, other in house counsel and its outside counsel the final arbiters of the substance of the SEC documents, but in most cases, except for the financial statements themselves, lawyers draft the majority of the language included the filings. It is their responsibility to ensure that the information included in those filings is accurate in all material respects and does not mislead investors either by misstatements or by failure to disclose material facts. For this reason alone, the general counsel of the company, at the very minimum, should be required to certify the facts (if not the numbers) of every SEC filing. But there are more reasons. Any lawyer who has ever worked in house for a public company knows that there are few, if any, Œsecret transactionsı. While it may be true that the board of directors is misled occasionally, the companyıs in house lawyers and outside counsel know the details of each and every transaction, bar none. Yet not one SEC action, not one headline, not one news report focused on the furtherance of this fraud by the professionals who actually create and draft the transactions themselves as well as the public disclosures describing those transactions. This modus operandi of disguised off balance sheet financing, egregious executive compensation, and the plethora of arcane revenue creating transaction have not only been countenanced by the lawyers involved but have been created by them. Every single fraudulent transaction, every compensation package, every misleading SEC document had legions of lawyers twisting and contorting the letters of the law to accommodate the egos and wallets of the CEO and his cadre. I believe that it is essential that the lawyers who are responsible for preparing SEC documents and the related disclosures face disbarment for the violation of this certification requirement. None of this fraud would have been possible if the lawyers involved had refused to participate in the misleading transactions and disclosures. The requirement for certification by professionals who create the SEC disclosure documents is a preventative measure that, in many cases, might have precluded the need for the increased criminal penalties now being enacted. There is no preventive measure now in place at the federal level that threatens disbarment as a penalty for a lawyer participating in misleading disclosures. Lawyers are therefore not at risk for their cooperation and complicity in permitting or facilitating such disclosures. They are, in fact, at more personal risk, if they fail to cooperate with the CEOıs directives. Only with a bright line test such as certification and the proposed disclosure rules will the disincentive be clearly defined. Respectfully submitted, Kenneth L. Weiss, Esq. Submitted electronically without signature Kenneth L. Weiss Attorney at Law 11085 9th St. E. Treasure Island, FL 33706 kenweiss@stockholderaction.com