Sarbanes-Oxley Versus The Attorney-Client Privilege

Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that The Sarbanes-Oxley Act (SOX) was needed to deal with “a general erosion of standards of integrity and ethics in the corporate and financial world. … The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus.” (See, www.sec.gov/news/speech/spch030504whd.htm (emphasis added.)) Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers. To that end, the SEC imposes certain reporting requirements on corporate counselors, attempts to preempt state ethics rules, and DOJ prosecutors routinely pressure “target” corporations to waive the attorney-client privilege to obtain “cooperation” points. Corporate counselors must be aware of those initiatives to properly balance their competing obligations.