Online

Included in the site is the background for the proposed rules, a description of the role of attorneys who appear before the Commission (see article infra, page 1), a discussion of the proposals, request for general comments and statutory basis and text of the proposed amendments. In this background section, the Commission noted it had received many comments on the “noisy withdrawal” provision, some of which were supportive, but most were not. Some objected to the proposal because they believed the Commission did not have the statutory authority to require “noisy withdrawal.” Other objectors were concerned that the provision would conflict with longstanding requirements under state ethics laws and therefore would infringe on the jurisdiction of state ethics-setting bodies. Several responders from outside the United States stated that compliance with the “noisy withdrawal” requirement would cause them to violate the laws of their home jurisdiction. Finally, several believed that the rule would not further the Commission's goals because it would cause clients to exclude attorneys from meetings where information was exchanged that could lead an attorney to believe a material violation had been committed.

Most suggested that the Commission extend the time for commenting on a rule mandating “noisy withdrawal.” Their principal concerns were that: the rule raises novel issues with respect to establishing ethical rules for attorneys that require reporting to a third party; the rules are complex and the period of time provided under Section 307 did not allow adequate time for the preparation of comments or for the Commission to consider those comments; and because Section 307 requires the Commission only to issue the up-the-ladder reporting requirements within 180 days, the Commission need not issue a “noisy withdrawal” provision at the time it adopts the up-the-ladder reporting system and can postpone its consideration of the issue. In light of the response, the Commission extended the time for comment.

As the article infra, page 1, discusses, attorneys who practice product liability law are not beyond the reach of the Sarbanes-Oxley Act. For a complete description of the SEC's proposed rules regarding the standards of professional conduct for attorneys appearing before the SEC, go to www.sec.gov/rules/proposed/31-8186. The site summarizes the rules proposed pursuant to Section 307 of the Sarbanes-Oxley Act of 2002, which requires the SEC (Commission) to prescribe minimum standards of professional conduct for attorneys appearing and practicing before the Commission in any way in the representation of issuers.

The Commission explained that the actions of some attorneys have drawn increasing scrutiny and criticism in light of recent events, demonstrating that at least “some lawyers have forgotten their responsibility.” It noted that existing state ethical rules did not seem to be an effective deterrent to attorney misconduct. The July 16, 2002, Preliminary Report of the American Bar Association Task Force on Corporate Responsibility (the “Cheek Report”) concluded that “the system of corporate governance at many public companies has failed dramatically” and acknowledges that attorneys representing and advising corporate clients bear some share of the blame for this failure.

The Commission adopted rules under Section 307 and extended the comment period for certain other rules under Section 307. In particular, the Commission extended the comment period for the provisions regarding an attorney's notification to the Commission (more commonly referred to as “noisy withdrawal”) when an attorney, after reporting evidence of a material violation up-the-ladder of the issuer's governance structure, reasonably believes an issuer's directors have either made no response (within a reasonable time) or have not made an appropriate response. The Commission solicited additional comments on the “noisy withdrawal” provisions previously proposed and proposed an alternative approach.

Included in the site is the background for the proposed rules, a description of the role of attorneys who appear before the Commission (see article infra, page 1), a discussion of the proposals, request for general comments and statutory basis and text of the proposed amendments. In this background section, the Commission noted it had received many comments on the “noisy withdrawal” provision, some of which were supportive, but most were not. Some objected to the proposal because they believed the Commission did not have the statutory authority to require “noisy withdrawal.” Other objectors were concerned that the provision would conflict with longstanding requirements under state ethics laws and therefore would infringe on the jurisdiction of state ethics-setting bodies. Several responders from outside the United States stated that compliance with the “noisy withdrawal” requirement would cause them to violate the laws of their home jurisdiction. Finally, several believed that the rule would not further the Commission's goals because it would cause clients to exclude attorneys from meetings where information was exchanged that could lead an attorney to believe a material violation had been committed.

Most suggested that the Commission extend the time for commenting on a rule mandating “noisy withdrawal.” Their principal concerns were that: the rule raises novel issues with respect to establishing ethical rules for attorneys that require reporting to a third party; the rules are complex and the period of time provided under Section 307 did not allow adequate time for the preparation of comments or for the Commission to consider those comments; and because Section 307 requires the Commission only to issue the up-the-ladder reporting requirements within 180 days, the Commission need not issue a “noisy withdrawal” provision at the time it adopts the up-the-ladder reporting system and can postpone its consideration of the issue. In light of the response, the Commission extended the time for comment.