Banco Espírito Santo, S.A.
Lisboa, 18th December 2002
Via E-Mail: email@example.com
Mr. Jonathan G. Katz, Secretary,
Re: Sarbanes-Oxley Act § 307 - Implementation
Dear Mr. Katz:
We are submitting this letter in response to the request by the U.S. Securities and Exchange Commission for comments on the Commission's proposed Part 205 of Title 17, Chapter II of the Code of Federal Regulations, which would establish standards of professional conduct for attorneys who appear and practice before the Commission in the representation of an issuer.
We are members of the bar of Portugal. Accordingly, our comments focus on those aspects of the proposed rules that raise the greatest concern from our perspective.
We believe the application of the proposed rules to non-US attorneys would be unfair, given the fact that non-U.S. attorneys most likely will not be conversant with U.S. securities laws.
Our understanding of US Securities Laws is indeed inexistent. That is precisely the reason why usually foreign companies like us do have American attorneys to represent them before the SEC. That is also the reason why we are not admitted to practise securities law, or any other law, in the United States.
We therefore do not have the minimum skill to determine a violation to US Securities Laws, whether material or not. And if the reporting trigger of the whole process you propose is a «material violation», we do not clearly see how we will be able to trigger the reporting process.
Furthermore, the Portuguese Attorneys statute imposes Portuguese attorneys, in general, to held secrecy from every information given by a client. In principle, only a court can order Portuguese attorneys to do the contrary. The approval of the proposals would mean an insuperable and irreconcilable conflict of duties for every attorney. And please note that we would incur in such a conflict, all the times, not knowing that we stand in a conflict of interests, because we do not know if we face a material violation of US securities laws or not.
For the reasons explained above, we strongly urge the Commission not to include non-U.S. attorneys admitted to practice law outside the United States in the definition of "attorney".
Please note that the comments reflected herein represent solely the views, comments and concerns of the undersigned and do not necessarily represent the views of the company of which we are attorneys. If you have any questions regarding this letter, feel free to contact the undersigned at firstname.lastname@example.org.