The Road to SEC Compliance

The American Corporate Counsel Association (ACCA) has posted an executive summary providing an overview of the rule and the alternative proposal at: www.acca.com/legres/corpresponsibility/307/summary.pdf. (The SEC's final and proposed rules can be found at www.sec.gov/rules/final/338185.htm and at www.sec.gov/rules/proposed/33-8186.htm.)

What can legal departments do to prepare to comply with the new rules? Here are five practical suggestions that may help corporate counsel in private and public companies:

1. Call a department meeting to clarify the roles and responsibilities of attorneys under the new SEC rules and under the Model Rules of Professional Conduct 1.13 and 1.6.

   At your meeting, you might discuss the following questions:

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   • Which attorneys are 'practicing before the Commission?' (The definition is more inclusive than you might think.)
   • What events trigger 'up the ladder' reporting requirements?
   • How does the SEC define (or not!) such crucial terms as material violation, credible evidence, and reasonable behavior by an attorney?
   • What protections are available to lawyers who act reasonably, and what penalties are mandated for those found lacking?
   • Who is the client under the SEC's rule and how does that determination affect your ability to work with daily management in resolving client problems?

   Even if you work in a private company, the standards set by the SEC on these critical matters will likely become a benchmark for courts and others looking to assess the role and response of lawyers investigating wrongdoing in their client companies. It's reasonable to assume that other regulatory agencies will seek to copy these rules to regulate the behavior of attorneys practicing before them, and that state bar associations will seek to amend their rules of practice to 'raise the bar' on these issues.

   Remember that Model Rule of Professional Conduct 1.13 (or your licensing state's version of this rule) suggests, but does not mandate, an up-the-ladder reporting response by all corporate lawyers who encounter evidence of a client's wrongdoing; since it is considered very weak in terms of practical guidance for corporate lawyers caught in a sticky ethical dilemma, the rule is probably ripe for reform by states in response to post-Enron concerns.

   And, unlike the new SEC rule, which applies only to lawyers for issuers who are practicing before the commission, this model rule applies to any lawyer working for an organizational client.