Jonathan G. Katz, Secretary
Securities and Exchange Commission
450 Fifth Street, NW
Washington, D.C. 20549-0609

April 7, 2003

File No. S7-45-02

Re: Final and Proposed Rule: Implementation of Standards of Professional Conduct for Attorneys, 17 CFR 205: Comments of Susan P. Koniak, Roger C. Cramton and George M. Cohen (with List of Academics Who Are in General Agreement)

Dear Mr. Katz:

We are writing to comment on the Final and Proposed Rules on the Implementation of Standards of Professional Conduct for Attorneys, codified or proposed to be codified in 17 CFR Part 205. Our comments can be summarized as follows:

  • The triggering standard of §205.2(e) should be changed, as should the definitions in §§205.2(l), (m), to eliminate double negative formulations in the reasonableness standard.

  • The definition of "appropriate response" to a report should eliminate as one such response the option in §205.2(b)(3)(ii) of retaining or directing a lawyer who may assert a "colorable defense" to any material violation that is the subject of a report.

  • Lawyers hired as advocates or to investigate reports of material violations should not receive blanket exemptions from reporting duties. Sections 205.3(b)(6) and 205.3(b)(7) should be revised to provide more limited exemptions to lawyers in these roles.

  • Sections 205.1 and 205.6(c) should be revised to make clear that compliance with these rules does not ensure that the lawyer has complied with all requirements of the securities laws.

  • The alternative proposed rule, §205.3(d)-(f), which requires issuers to report attorney resignations instead of requiring lawyers to report themselves, is an acceptable alternative to the noisy withdrawal proposal, subject to several qualifications:

    • Companies should be required to report the circumstances related to the attorney's resignation (proposed §205.3(e)).

    • Reporting lawyers should be required to inform the SEC if the issuer does not, rather than merely permitted as in proposed §205.3(f).

  • The Commission should make it clear that these new rules, like Rule 2(e), are enforceable against law firms as well as against individual lawyers.


I. The Triggering Standard

In assessing how faithfully and well the Commission has fulfilled its duty under §307 of the Sarbanes-Oxley Act to issue rules prescribing minimum standards of professional conduct for attorneys appearing and practicing before it, including a rule "requiring" an attorney to report evidence of material violations of, inter alia, the securities laws, one question is central. Will the Commission's rules help ensure that the "see no evil, report no evil" behavior of Enron's lawyers, of Global Crossing's lawyers, and of the lawyers at many other companies changes?

The Commission's Final Rule fails that test. It fails because the triggering standard adopted by the Commission is weak and convoluted. Law is intended to guide action in the world. When must a lawyer report evidence of illegality, according to the Commission? When the lawyer "becomes aware of evidence of a material violation," §205.3(b)(1), defined as "credible evidence, based upon which it would be unreasonable, under the circumstances, for a prudent and competent lawyer not to conclude that it is reasonably likely that a material violation has occurred, is ongoing or is about to occur," §205.2(e). In deciding whether to act - whether to report what Congress wanted to encourage lawyers to report up the corporate ladder - the lawyer is to ask herself whether it would be unreasonable not to conclude that the evidence before her demonstrates a reasonable likelihood of a material violation of law.

Any lawyer worth her salt will almost always be able to conclude that it is not "unreasonable" to conclude that the evidence before her demonstrates legal conduct. Why? Because lawyers are trained to reimagine evidence of illegality as evidence of legality. Because the ethos of lawyers is not to report up the corporate ladder, as amply demonstrated by the passivity of all the lawyers who remained inactive despite considerable evidence of illegality in the scandals of the recent past, as well as in the scandals of the savings and loan crisis and the frauds in all the years before then, such as the for-its-time massive fraud of OPM. Because the very phrasing of the Commission's rule with its double negative will be read by many lawyers asencouraging them to hide in the folds that the double negative creates. If the Commission meant to adopt a rule that the lawyer must report "when a reasonable lawyer would conclude" or when "it is reasonable to conclude," the Commission would not have used the double negative. Every lawyer understands that. The Commission's standard is an invitation to inaction. The bar needs no such invitation and Congress surely did not intend the Commission to offer one.

Not only does the Commission's standard invite inaction, it fails another critical test of sound rulemaking. It would be a nightmare to enforce. The Commission has asked its staff to assume the burden of proving not just one negative, but two. To enforce this rule, the Commission would have to show that it was unreasonable for a lawyer not to conclude that a violation was reasonably likely. We do not believe that this burden is a realistic one to ask the staff to meet.

In our last set of comments we suggested a simple objective standard to cure the problem with the Commission's original proposed standard, which included the phrase "reasonably believes," and thus suggested a subjective test contrary to the Commission's announced intention to adopt an objective rule. The triggering standard we proposed then and still support is:

If, in appearing and practicing before the Commission in the representation of an issuer, an attorney, confronted with information that a prudent and competent attorney, acting reasonably under the same circumstances, would conclude was credible evidence . . .

The Commission's sole rationale for its definition is that it "recognizes that there is a range of conduct in which an attorney may engage without being unreasonable." We believe that a straightforward standard of reasonableness, which appears throughout the law, already incorporates ample recognition of the need for discretion. See, e.g., Restatement (Third) Law Governing Lawyers §52 cmt. b (interpreting a lawyer's duty of competence as one of "reasonableness in the circumstances," which "does not require a lawyer, in a situation involving the exercise of professional judgment, to employ the same measures or select the same options as would other competent lawyers in the many different situations in which competent lawyers reasonably exercise professional judgment in different ways"). Moreover, our proposed reasonableness standard, by using the word "would" rather than "could," ensures the recognition of sufficient lawyer discretion without undermining the rule.

The problems with the triggering standard exist as well in the Commission's definitions of "reasonable" in §205.2(l) and "reasonably believes" in §205.2(m), both of which use a doublenegative ("not unreasonable") formulation. These definitions are not only incorporated in the definition of "evidence of a material violation" (compounding the double negative problem already present in that definition), but are used throughout the rules. For the reasons already discussed, these definitions should be changed to eliminate the double negative formulation.

II. "Colorable Defense" and Related Problems

Adding to the substantial problems presented by the triggering standard, the Commission's Final Rule in several sections refers to the possibility that a lawyer may assert a "colorable defense" to a material violation of law. The effect of the assertion or potential assertion of a colorable defense in the Final Rule is invariably to diminish the responsibilities of either the reporting lawyer or the lawyer asserting the colorable defense. We find this reduction in responsibility based on the assertion of a colorable defense to be inconsistent with the purposes of §307 as well as with the general requirements of the securities laws and the law of lawyering. We therefore recommend changes to all of the sections in which "colorable defense" is now mentioned.

First, the Final Rule defines an "appropriate response" to a lawyer's report to include the company's informing the reporting-lawyer that the issuer's board of directors (or qualified legal compliance committee or other relevant committee of the board) has "retained or directed" a lawyer to review the report, and that the reviewing-lawyer:

may, consistent with his or her professional obligations, assert a colorable defense on behalf of the issuer (or [an agent of the issuer]) in any investigation or judicial or administrative proceeding relating to the reported evidence of a material violation.


This response is presented as an alternative to the company's taking steps (with or without a reviewing lawyer's advice) to rectify an ongoing fraud (or other material violation of law) or abandon plans to commit a contemplated fraud, given that the response section of the final rule applies to past, ongoing, and future violations of law. Thus the rule as adopted suggests that one alternative to stopping an ongoing fraud or abandoning plans to commit a new fraud is to get an opinion from a lawyer that should the issuer be investigated for the illegal conduct (there is no requirement in the definition that the investigation be underway, pending, or even likely to occur), a colorable defense would be available. The Commission should not be suggesting to anyone thatthe fact that a lawyer can (in good faith and/or reasonably) state that a "colorable" defense would be available, if the action is ever challenged, gives an issuer license to engage in activity that may well be illegal. "Colorable defenses" are a dime a dozen. And a dozen may not even be necessary - a literal reading of the rule suggests that "a" colorable defense to "any" proceeding "relating to" the reported evidence constitutes an appropriate response; thus, for example, if there were a colorable defense to a federal securities claim but not to a state law breach of fiduciary duty claim, the lawyer's duty to report would arguably end anyway.

The fact that a lawyer can concoct arguments that would meet a minimum level of plausibility sufficient to avoid sanction in an adversary proceeding does not mean that the conduct is likely legal. A public company subject to SEC regulation is guilty of a civil violation of the securities laws when the preponderance of evidence supports a finding of a violation. A lawyer acting as an adviser in transactions and filings subject to SEC disclosure requirements must advise the company on the basis of whether the available evidence indicates that a violation is more likely than not.

The Commission states that the "colorable defense" language is there to address a problem that we, among others, raised in our initial comments, i.e., that advocates not be chilled in challenging the SEC in fora in which the SEC appears as a party. But the rule the Commission has adopted sweeps far broader than that. The existence of a colorable defense allows a lawyer when he is acting as an advocate, i.e., once conduct is subject to challenge in a forum in which another party is arguing that the conduct is not legal, to argue that conduct, even if very likely illegal, is legal. It has no other relevance. The colorable defense standard certainly should not be used to permit lawyers to advise clients, particularly corporate clients with fiduciary obligations to their owner-shareholders, to proceed with conduct that is very likely illegal. Yet that is precisely what the SEC's formulation invites. This error needs to be corrected to avoid any suggestion that a "colorable defense" is an alternative to further investigation or rectification of conduct likely to be judged illegal.

Even when an investigation is pending or a prosecution or civil suit is in progress, and even if the lawyer is specifically hired or directed to act as an advocate in such proceeding, the existence of a "colorable defense" is not a substitute for the lawyer's duty to report material evidence of illegal conduct. The fact that the board has consented to the hiring of an advocate does not, contrary to the suggestion in the Commission's comments, provide equivalent protection for shareholders. There is no requirement that the board's consent be conditioned on full knowledge of the evidence of the material violation, nor is there a requirement that the boardtake steps to prevent or rectify any violation. The "colorable defense" alternative should be eliminated from the definition of "appropriate response" in § 205.2(b)(3)(ii). To ensure that advocates proceed with sufficient zeal, all that is necessary is for the SEC to adopt a provision that states:

Nothing in these rules prevents a lawyer who is acting as an advocate in any proceeding or formal or informal investigation by the government from presenting any and all colorable defenses available to the issuer or its agents.

Advocates should be free to present colorable defenses in any ongoing investigation or proceeding and lawyers should be free to formulate them in contemplation of any such proceeding, but neither advocating nor formulating such a defense excuses a lawyer, under the securities laws or the law of lawyering more generally, from advising a client to stop or refrain from likely illegal conduct, simply because the lawyer can imagine a colorable defense.

Nor should the advocacy role exempt that lawyer from the duty to report and followup obligations under the Final Rule. Yet the Final Rule relieves advocates from the reporting requirements of the rule. Under §205.3(b)(6)(ii), a lawyer retained or directed by a chief legal officer to assert a colorable defense in a proceeding or investigation has no reporting duties with respect to new evidence of illegalities that she might discover as part of her work, so long as the chief legal officer provides reports on the progress of the proceeding to the board or relevant board committee. And under §205.3(b)(7)(ii), a lawyer retained or directed by a qualified legal committee to assert a colorable defense in a proceeding has no reporting duties with respect to new evidence either. Why not? If the Commission meant only to relieve such advocate lawyers from reporting evidence already reported to or otherwise known by the board, the provisions are written too broadly. If, on the other hand, the Commission meant to exempt these advocates from reporting new evidence of illegality, that is completely contrary to the point of §307, and we can see no legitimate justification for such an exemption. There is no blanket exemption for "advocates" in Model Rule 1.13(b), for example. Nor should there be one here.

The problem of an excessively broad exemption for particular classes of lawyers, such as advocates asserting colorable defenses, plagues several other provisions in the rules. Sections 205.3(b)(6)(i) and 205.3(b)(7)(i) say lawyers hired or directed by the chief legal officer or a qualified legal compliance committee to investigate reports have no duty to report, so long as in the case of the chief legal officer the results of the lawyer's investigation are reported to the board. As with advocates, there is no basis in §307, the securities laws, or the law of lawyering for creating a blanket reporting exemption for "investigating lawyers." And as with advocates,the Commission could have drafted a narrow exemption for investigating lawyers to relieve them of reporting duties when the evidence was already known, without extending the exemption to the discovery by those lawyers of new evidence. And the problems with the Final Rule's exemption for investigating lawyers is not limited to the question of newly discovered evidence. Consider that an initially reporting lawyer is deemed not to have received an "appropriate response" if a subsequently retained investigating lawyer makes recommendations that the issuer does not "substantially implement," see §205.2(b)(3)(i); by contrast, the investigating lawyer has no further obligations if the issuer ignores her recommendations, under §205.3(b)(6)(i)(B). Again, why not?

A final example of an excessively broad exemption in the Final Rule occurs in §205.2(a)(2)(i), in which the Commission attempted to exempt lawyers who are not functioning as lawyers from the requirements of these rules. This section can perform its function by placing a period after the word "issuer." In other words, the Commission should delete the words "with whom the attorney has an attorney-client relationship" from this subsection. Section 205.2(g) handles a similar problem much better.

The reason it is important to delete the last phrase from §205.2(a)(2)(i) is that as now written, the rule exempts those lawyers for a related corporate entity (such as a subsidiary or SPE) or an agent for the issuer (such as the CFO) who provide legal advice to the issuer, although not technically in an attorney-client relationship with the issuer. Judge Harmon's opinion in In re Enron Corp. Securities, Derivative & ERISA Litigation, 235 F. Supp.2d 549 (S.D. Texas 2002), demonstrates how a law firm, in that case Kirkland & Ellis, may provide substantial legal advice to an issuer without being in an "attorney-client relationship" with that issuer. We do not see any reason for the SEC to exempt any lawyer who provides legal advice to an issuer from any of these rules.

III. The "Noisy Withdrawal" Proposal and the Alternative of Company Reporting

Our comments on the Commission's initial set of rules strongly supported the Commission's noisy withdrawal proposal as consistent with a long professional tradition, authorized by §307 of Sarbanes-Oxley, and essential to the proper working of the up-the-ladder reporting requirement.1 Some mechanism must be put in place to prevent a public company fromignoring its lawyer's report of a material violation, leaving the interest of the public and investors to the lawyer's discretionary decision whether to report the matter to the SEC under §205.3(d)(2) of Part 205. The purposes of Sarbanes-Oxley are endangered if no mechanism is included, whether that be noisy withdrawal by the lawyer or a report from the company to the SEC.

It seems to us that as a means of protecting investors, which is the Commission's mandate, it matters not whether the company or the lawyer is required to inform the Commission of the fact that a lawyer has withdrawn because the client's response to a report under these regulations is inadequate.2 The Commission's proposed alternative of mandatory withdrawal by the lawyer, followed by mandatory reporting of such withdrawal by the issuer to the Commission, is in our view an adequate -- and in one respect, superior -- alternative to mandatory noisy withdrawal by the lawyer. Nonetheless, the alternative is inadequate in two respects. First, whatever proposal the Commission adopts must make clear that the standard being set is not lower than that already embedded in the securities laws. Second, the lawyer should be required to take some action if the company does not fulfill its obligations under the alternative rule. We will discuss not only these problems but the attractive features of the Commission's alternative proposal, as well as addressing some of the questions the Commission poses in its comments.

Before discussing the Commission's alternative, however, we want to clarify an important point about the relationship between these rules and lawyer's general obligations under the securities laws and the law of lawyering, a point related to a point we made above concerning overly broad exemptions. We understand that the Commission's original noisy withdrawal proposal would have relieved the lawyer of the duty to make noisy withdrawal if the companycreated a qualified legal compliance committee to which the lawyer had reported. Although we did not make this point clear in our first set of comments, we do not see how the existence of such a committee relieves a lawyer from any responsibility already existing under the securities laws not to make material misrepresentations in documents authored or coauthored by that lawyer, see In re Enron, 235 F.Supp.2d at 588. These responsibilities may well necessitate the lawyer's withdrawing or disaffirming documents previously authored or coauthored by a lawyer that the lawyer now understands to be part of a fraud, see Model Rules 1.2 cmt. [10], 4.1 cmt. [3] (August 2002 version). The next investor who relies on such documents will have been defrauded with the lawyer's help and aiding and abetting securities fraud is, of course, still a civil wrong that the SEC might prosecute, as well as a crime.

Thus, under either version of the rule adopted by the SEC, we think it important that the SEC make clear, at least in comments, if not in the text itself, that a lawyer may thus have a duty to withdraw or disaffirm statements or documents apart from the provisions of this rule. And the SEC should revise §205.1 and §205.6(c) to make clear that compliance with these rules does not ensure that the lawyer has complied with all requirements of the securities laws. The SEC, of course, should not be adopting minimum standards for lawyers that are lower than the prohibitions against securities fraud that are part of the larger regulatory scheme.

The Commission's proposed alternative, §205.3(e), would require issuers to report the fact of attorney withdrawal and the "circumstances related thereto." This standard improves on the original proposal's so-called noisy withdrawal provision, which would have indicated the circumstances related to the withdrawal, if at all, through the indirect means of disaffirming documents -- assuming such documents existed -- that the lawyer had prepared or assisted in preparing, and that had been submitted in connection with a matter that the lawyer subsequently determined was reasonably likely to have been part of a material violation of law. Thus, under the original proposal the SEC and, in turn, investors would, at best, have had only general notice of the nature of the alleged illegality and the SEC and investors might not even have that. The SEC and investors might, if there were no relevant documents, have no more information than that a lawyer at some global company had resigned over something the lawyer determined that a reasonable lawyer would think signaled possible material illegality. In contrast, under the alternative, the company would have to describe the circumstances related to the resignation, which at a minimum we would think would include a description of the matter that was the subject of the lawyer's initial report.

We are, however, troubled by the fact that one of the variations on the alternativesuggested in the Commission's release would relieve issuers of the responsibility to report the circumstances, presumably based on concerns about the effect on the attorney-client privilege, a matter we will address in a moment. First, however, we want to be clear that eliminating the requirement that issuers describe the circumstances attending withdrawal would make the alternative less protective of investors than the original proposal, which at least provided indirect information on the matter with its requirement that lawyers disaffirm affected documents or statements. The Commission should not adopt any alternative less protective than its original proposal. Thus, if the Commission decides to eliminate the "circumstances" requirement, we would withdraw our support for the alternative and instead urge the Commission to adopt its original proposal on noisy withdrawal.

We anticipate that lawyers and some clients will argue that the Commission should drop the "circumstances" requirement and not return to the noisy withdrawal provision in its stead because of supposed infringements of the attorney-client privilege or more general concerns about client confidentiality. To take those matters in turn, the attorney-client privilege applies only to communications between lawyers and clients. It does not privilege the underlying facts. To put that point more plainly, the attorney-client privilege allows a client (or its lawyer) to refuse to answer a question in this form: What did your lawyer tell you? Or, what did you tell your lawyer? It does not allow a client to refuse to answer questions about a matter simply because the matter was discussed between lawyer and client. That is what courts mean when they say that the privilege "does not protect disclosure of the underlying facts by those who communicated with the attorney." Upjohn v. United States, 449 U.S. 383, 395 (1981).

The Commission is not asking issuers to hand over any written reports provided by lawyers in connection with this rule (if indeed there are written reports, as §205.2(n) no longer requires them). The Commission is not asking issuers to describe the back and forth between lawyer and client on the matter that was the subject of the report. And, if others have any doubt about those two propositions, the comments to the rule could make those propositions plain, and could make clear that what the Commission wants from issuers is two things: One, a statement that the lawyer has resigned, whenever a resignation is received in connection with this rule; and two, a statement that the lawyer's resignation was in connection with the following matter, including a brief description of the matter, with no requirement that the issuer repeat or disclose any of what the lawyer actually said about the matter.

Some may argue that this disclosure nonetheless threatens the attorney-client privilege as it amounts to requiring the issuer to make this implicit statement: "My lawyer said that there isevidence that a material violation of law occurred (is occurring or will occur) in connection with this matter." Courts do not, however, treat the privilege so lightly as to find waiver based on "implicit" references to lawyer-client communications. The "circumstances" portion of the Commission's proposed alternative should not be changed in the absence of a convincing showing that the current law of attorney-client privilege adopts the proposition that "implicit" statements amount to waiver of the privilege. We know of no such authority and do not believe that any outlier authority that might exist for such a proposition would be followed by other courts. See Restatement (Third) Law Governing Lawyers §79 cmt. e ("Knowledge by the nonprivileged person that the client consulted a lawyer does not result in waiver, nor does disclosure of nonprivileged portions of a communication or its general subject matter. Public disclosure of facts that were discussed in confidence with a lawyer does not waive the privilege if the disclosure does not also reveal that they were communicated to the lawyer.") (emphasis added).

As to more general concerns about confidentiality that might be urged, similar to the concerns raised about the noisy withdrawal proposal, despite the fact that the Commission apparently took concerns that "our clients will not confide in us anymore" seriously enough to lead it to change from its original proposal to its alternatives, we think that these concerns are makeweights - rhetoric without substance. Why? The people who might be engaged in wrongdoing (as the issuer is a creation of law and thus has no "real" counterpart) have no privilege now and no legitimate claim of confidentiality either. The privilege and the duty to keep confidences belong to the entity, not the managers or the directors. Either can be waived by future managers or trustees in bankruptcy. Lawyers can disclose confidences in every state to defend themselves when necessary, even before the filing of actual charges or a complaint. Lawyers can disclose confidences to collect a fee, when necessary. The crime-fraud exception to the privilege leaves unprivileged all communications by the client or its agents in furtherance of illegality. And in most states, lawyers are already permitted, and in some cases required, to disclose client fraud. With all these exceptions to confidentiality and the privilege extant, the idea that "noisy withdrawal" or the alternative's "circumstances" provision would suddenly result in clients not talking to their lawyers seems untenable. Corporate clients (through their agents) confide in corporate lawyers (to the extent they do, which is now imperfect and always will be) because corporations need legal advice. Period. There is no evidence whatsoever that corporate clients have avoided lawyers in those few states that now require disclosure of client illegality or those states that permit such disclosure. There is no evidence that lawyers in such states are told less than lawyers in other states. Corporate clients that function across state lines, as so many do, have a fairly wide choice of states from which they may secure lawyers. No evidence exists that lawyers in disclosure states have suffered at all or that the quality of representation or compliancewith law in those states has been reduced.

Finally, the securities laws now require issuers to disclose a contingent liability when that liability is likely to be significant enough to be of concern to investors. We submit that any such disclosure involves as much of an implicit statement about what a lawyer told the issuer as the "circumstances" provision of the alternative would require. In sum, eliminating the "circumstances" provision would render the alternative less protective than the original proposal. It should not be eliminated. If it is, the original proposal should be adopted instead with our caveat that lawyers may be required to disaffirm statements or documents in certain circumstances even when the company has adopted a qualified legal compliance committee. Moreover, that caveat needs to be included, whatever version of this rule is adopted, to ensure that these "minimum" standards are not lower than the fraud provisions of the securities laws.

The other respect in which the alternative is not sufficiently protective of investors is that it, permits, but does not require lawyers to notify the Commission of the fact of withdrawal in those instances in which the issuer fails to fulfill its obligation under this rule. See Proposed Rule §205.3(f). We can think of no good reason to relieve lawyers of that responsibility. If the concern is that lawyers will not be able to monitor whether the issuer has made the required disclosure, all that would be necessary would be a provision requiring an issuer to copy the reporting (departed) lawyer on its disclosure to the Commission.

IV. Law Firm Discipline and Imputation of Knowledge Within a Firm

The Commission's rules should address the need for discipline of law firms.3 Including law firms would be consistent with the approach the Commission has taken in the past in exercising its authority under Rule 2(e). See In re Keating, Muething & Klekamp, Release No. 34-15982, 1979 WL 186370 (July 2, 1979) (finding that a "law firm has a duty to make sure that disclosure documents filed with the Commission include all material facts about a client of which it has knowledge as a result of its legal representation of that client," and imposing sanctions on law firm for "fail[ing] to carry out its professional responsibilities"). Specialized corporate and securities practice involves the participation of a team of lawyers who bring differing skills and knowledge. Responsibility for decisions is often divided up or shared in ways that are uncertainor shifting. The diffusion of responsibility and knowledge leads to the possibility that no one lawyer (or identified group of lawyers) will be held responsible for what was done. The Commission should add a rule permitting the censure or reprimand of a law firm and assessment of monetary penalties when the firm, which is clearly responsible for the representation, has failed to conform to responsibilities required by the Commission.

In addition to failing to address law firm censure and discipline, the proposed rules also suffer from the failure to address the important questions of imputation of knowledge within a law firm. In our initial comments in December 2002 we suggested language to address those related issues.4 One consequence of failing to address imputation is that it renders the definition of "appearing and practicing" confusing, since issuers are often understood to be represented by firms rather than by individual lawyers. An even more troubling consequence is that the failure to apply the rule to law firms may encourage the decentralization of legal work within law firms, undermining the Commission rules, the purposes of §307, and the provision of quality legal services. The In re Keating, Muething & Klekamp opinion, cited above, demonstrates this problem and the Commission's prior determination to address it. In that case, the Commission found that the firm "collectively had knowledge" of questionable transactions, but had imposed "a division of authority among the partners within the firm concerning client matters which significantly impaired communications within the firm. . . . due in part to the lack of comprehensive internal procedures within the firm to gather and evaluate such information in connection with the preparation of [the client's] filings with the Commission." The Commission faulted the firm for failure to have in place "a system which assured that the knowledge of the members of the firm was communicated to the persons responsible for preparing disclosure documents so that adequate disclosure of material information - which was within the firm's knowledge - was made." The Commission should take a similar position in these rules.

V. Conclusion

We appreciate the great effort that the Commission has put into revising its previous draft rules, and in many respects the current rules represent a significant improvement. We have tried to focus on the areas we believe still need work and have tried to state our concerns as succinctly and helpfully as possible. In particular, we emphasize that nothing the Commission does about noisy withdrawal or its alternative will matter unless the Commission fixes the triggering standard and the "colorable defense" provisions that now threaten the regime of internal reporting thatCongress intended the SEC to put in place.

If members of the Commission staff want more information or would like to talk with any of us about our comments, we would be pleased to be of assistance.

Susan P. Koniak
Professor of Law
Boston University School of Law
Tel: 617.491.3038

Roger C. Cramton
Stevens Professor of Law Emeritus
Cornell Law School
Tel: 607.255.3379

George M. Cohen
Edward F. Howrey Research Professor
University of Virginia School of Law
Tel: 434.924.3814


[The co-authors of these comments circulated a draft of them to a number of academic colleagues, inviting them to endorse these comments. Here we list the names and affiliations of those who are in general agreement with our comments and recommendations. Because time did not permit consideration of each individual's suggestions, the signers are not endorsing the specific language or details of each comment or recommendation. They have authorized us to attach their names and to say that they agree generally with the substance and tone of this letter.]

Thomas R. Andrews
University of Washington

Stephen M. Bainbridge
University of California (Los Angeles)

Richard Balnave
University of Virginia

Debra Lyn Bassett
Michigan State University

Edward C. Brewer
Northern Kentucky University

Lester Brickman
Yeshiva University

Stephen M. Bundy
University of California (Berkeley)

Richard M. Buxbaum
University of California (Berkeley)

Paul D. Carrington
Duke University

Robert F. Cochran
Pepperdine University

James D. Cox
Duke University

David A. Dana
Northwestern University

Joshua Paul Davis
University of San Francisco

Melvin A. Eisenberg
University of California (Berkeley)

Robert W. Gordon
Yale University

Robert W. Hamilton
University of Texas

J. Gordon Hylton
Marquette University

Douglas Austin Kysar
Cornell University

Donald C. Langevoort
Georgetown University

John Leubsdorf
Rutgers University (Newark)

David Luban
Georgetown University

Judith L. Maute
University of Oklahoma

Nancy J. Moore
Boston University

Carol A. Needham
Saint Louis University

Dale Oesterle
University of Colorado

Richard W. Painter
University of Illinois

Rex R. Perschbacher
University of California (Davis)

Milton C. Regan, Jr.
Georgetown University

Deborah Rhode
Stanford University

Harriet Rubin Roberts
University of Miami

Thomas Ross
University of Pittsburgh

Tanina Rostain
New York Law School

Irma S. Russell
University of Memphis

George A. Rutherglen
University of Virginia

Theodore J. Schneyer
University of Arizona

Marc Steinberg
Southern Methodist University

Eli Wald
University of Denver

W. Bradley Wendel
Washington and Lee University

1 See Comments of Susan P. Koniak, Roger C. Cramton, George M. Cohen and others on the Proposed Rules Implementing Standards of Professional Conduct for Attorneys 20-32 (Dec.17, 2002).
2 From the perspective of encouraging responsible behavior by lawyers, it might well be better to require lawyers to report, instead of issuers, because lawyer reporting would reinforce an idea that needs reinforcement, i.e., that the superior interests of third parties and the public justify exceptions to the lawyer's general duty of confidentiality. The client who has abused the lawyer's service by using the lawyer to perpetrate a fraud on third persons surely presents a situation in which the client's interest in confidentiality is trumped by the public interest and those of the persons harmed. However, it is not the Commission's job to promulgate rules that best educate lawyers about their responsibilities; rather, the choice between the two alternatives should turn on which approach will give the greater protection to investors. Even if the Commission adopts the alternative of company reporting, the Commission should strengthen that rule by including a provision requiring the lawyer to report if the company has failed to fulfill its obligation to do so, as we discuss below.
3 See the detailed discussion in Comments of Susan P. Koniak, Roger C. Cramton, George M. Cohen and others on the Proposed Rules Implementing Standards of Professional Conduct for Attorneys 40-42 (Dec. 17, 2002).
4 Id.