Do the SEC's Proposed Standards of Professional Conduct Apply to You?

When The Security and Exchange Commission (SEC) or Department of Labor (DOL) or FBI Special Agent investigator knocks on a defense counsel's office door to conduct an interview relating to her client's alleged violation of the Sarbanes-Oxley Act (the Act), she might recall skimming an article and concluding that it did not apply to her role as defense counsel in product liability cases. She should think again. In light of the recent financial debacles, including Enron and World Com, the SEC is fulfilling the Congressional mandate to require public companies to disclose and remediate material violations, breaches of fiduciary duties, and similar violations of the SEC regulations. This article discusses the SEC's definition of an “attorney” under 17 CFR Part 205 and its newly proposed alternative to an earlier draft “noisy withdrawal” ethics rule, attorney withdrawal and disaffirmance with client notification to the SEC of withdrawal. The following scenarios demonstrate when and how an attorney may have to respond under the Act.