Attorney Liability After Sarbanes-Oxley

Marc I. Steinberg

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[Attorney Liability] will soon become the bible for every lawyer practicing in the securities field.... Professor Steinberg has emerged as one of the top scholars in his field.”
Judge Stanley Sporkin (Ret.), ombudsman for BP

Attorney Liability After Sarbanes-Oxley is a much-needed reference for in-house and outside counsel seeking to provide effective representation without violating legal or ethical obligations. What should an attorney do when fraud is afoot? When should an attorney stop representing a corporate client—and what are the rules regarding a “noisy withdrawal”?

This important book explains the perils for lawyers in the wake of the Sarbanes-Oxley Act of 2002 and provides expert advice on the steps that can be taken to minimize them. Coverage includes: practical measures to prevent liability; “up-the-ladder” reporting; client identification; primary and secondary liability; conflicts of interest; and whistleblower complaints.

It also provides guidance on in-house counsel's role within the boardroom, when to write letters to clients and memos to the file, and other steps that can avert disaster. For lawyers committed to working vigorously for a client while avoiding potential liability, Attorney Liability After Sarbanes-Oxley is an essential addition to your library.

Book #00678; looseleaf, one volume, 604 pages; published in 2005, updated as needed.
ISBN: 978-1-58852-131-6

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 604
  • ISBN: 978-1-58852-131-6
  • Pub#/SKU#: 00678
  • Volume(s): 1

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  • Marc I. Steinberg
Marc. I. Steinberg is the Rupert and Lillian Radford Professor of Law at Southern Methodist University Dedman School of Law. He is the Director of SMU’s Corporate Directors’ Institute and former Senior Associate Dean for Academics. Professor Steinberg also served as Visiting Professorial Fellow, Centre for Commercial Law Studies, at the University of London. His experience includes appointments as a Visiting Professor, Scholar and Fellow at law schools in Argentina, Australia, China, England, Finland, Germany, Japan, New Zealand, Scotland, South Africa, and Sweden.

Professor Steinberg was an enforcement attorney at the United States Securities and Exchange Commission and special projects counsel, directly assisting the SEC’s General Counsel in a wide variety of projects and cases. He is editor-in-chief of The International Lawyers as well as The Securities Regulation Law Journal, a member of the advisory board of Law and Business Review of the Americas and The Journal of Corporation Law. He is also the author of twenty-two books and more than 125 law review articles. Professor Steinberg received his undergraduate degree at The University of Michigan and his law degrees at the University of California, Los Angeles (J.D.) and Yale University (LL.M.). He is a member of the American Law Institute.

Also by Marc I. Steinberg:
Securities Regulation: Liabilities and Remedies

Setting the Stage

§ 1.01 Implications of Sarbanes-Oxley
§ 1.02 Coverage of Treatise
§ 1.03 Objective of Treatise

Attorney Liability Under the Federal Securities Laws

§ 2.01 Introduction
§ 2.02 Section 11 of the Securities Act
§ 2.03 Section 12 of the Securities Act
[1] Section 12(a)(1)
[2] Section 12(a)(2)
[3] Attorney as Seller Under Section 12
§ 2.04 Section 10(b) of the Securities Exchange Act
§ 2.05 Attorney Primary Liability Exposure Under Section 10(b)
[1] Impact of Central Bank of Denver
[2]  Analysis
§ 2.06 Alternative Provisions
§ 2.07 Controlling Person Liability
§ 2.08 Conclusion

Client Fraud

§ 3.01 Overview
§ 3.02 Ethical Rules
§ 3.03 Duty to Blow the Whistle
§ 3.04 SEC Action
[1] In General
[2] Rule 102(e)
[3] Standards of Professional Conduct
§ 3.05 Noisy Withdrawal
§ 3.06 Responding to Auditor Requests
§ 3.07 Predecessor-Successor Counsel Communications
§ 3.08 Reality Check—The Role of Circumstantial Evidence

SEC Enforcement

§ 4.01 Overview
§ 4.02 Types of Attorney Misconduct in the Post-Sarbanes-Oxley Era
§ 4.03 Provisions Invoked Against Counsel
§ 4.04 Settlement of SEC Proceedings
§ 4.05 SEC Remedies and Sanctions Ordered Against Attorneys
[1] Injunctions
[2] Cease-and-Desist Orders
[3] Section 15(c)(4) Proceedings
[4] Equitable Relief and Undertakings
[5] Monetary Penalties
[6] Rule 102(e) Proceedings [7] SEC Standards of Professional Conduct Proceedings
§ 4.06 Conclusion

Attorney Liability Under the State Securities Laws

§ 5.01 Introduction
§ 5.02 Overview of Attorney Liability Under State Securities Law
§ 5.03 Attorney Liability Under the Uniform Securities Act
[1] Primary Liability
[2] Secondary Liability (Status, Control Person, and Aider Liability)—Uniform Securities Acts
§ 5.04 Attorney Liability Under More “Flexible”State Securities Statutes
[1] Texas
[2] California
§ 5.05 Conclusion

Attorney Liability Under the Common Law

§ 6.01 Introduction
§ 6.02 Legal Malpractice
[1] Overview of Elements
[2] Existence of a Duty
[3] Attorney-Client Relationship
[4] Liability to Non-Clients
[5] Breach of Duty
[6] Causation
§ 6.03 Negligent Misrepresentation
[1] The ALI Restatement of Torts Approach
[2] Review of Case Law
§ 6.04 Fraud
§ 6.05 Breach of Fiduciary Duty
§ 6.06 Aiding and Abetting and Conspiracy
§ 6.07 Conclusion

Internal Investigations

§ 7.01 Introduction
§ 7.02 Attorney-Client and Work Product Privileges
§ 7.03 Disclosure of Internal Investigation Reports to the Government—The Waiver Dilemma
§ 7.04 Conducting the Internal Investigation
[1] In General
[2] The Document Review
[3] The Employee Interview
§ 7.05 Conclusion

Employee Whistleblowing in the Post-Sarbanes-Oxley Era

§ 8.01 Introduction
§ 8.02 Overview
[1] Coverage
[2] Protected Activity
[3] Adverse Action
[4] Contributing Factor
[5] Remedies
§ 8.03 Issues
§ 8.04 Possible Solutions
[1] Intake Process
[2] Company Policy
[3] Educational Programs
[4] Documentation
§ 8.05 Conclusion

Counsel Conflict Dilemmas

§ 9.01 Overview
§ 9.02 Impact of the Sarbanes-Oxley Act (SOX)
§ 9.03 Simultaneous Representation of Multiple Clients
[1] Standards Applied
[2] Specific Contexts
§ 9.04 Successive Representation
§ 9.05 “Screening”Post-Enron in the Mega Firm
[1] Imputed Disqualification
[2] Rebutting the Presumption
[3] “Screening”Mechanisms
§ 9.06 Counsel Conflict Dilemmas in Mergers and Acquisitions
[1] Takeover Bids
[2] Parent Squeeze-Outs and Leveraged Buyouts
[3] Substantive Effect of Procedural Mechanisms
[4] Summation
§ 9.07 Conclusion

Inside Counsel

§ 10.01 Role of Inside Counsel
§ 10.02 Client Identification
§ 10.03 Duty to Inquire and Take Action
§ 10.04 Duty to Warn
§ 10.05 Counsel’s Role Inside the Boardroom
§ 10.06 Law Compliance Programs

Selected Topics

§ 11.01 Introduction
§ 11.02 Insider Trading
[1] Overview
[2] Law Firm Policies and Procedures
§ 11.03 Opinion Letters
§ 11.04 Taking Equity Interests in Clients
§ 11.05 Counsel as Director
§ 11.06 Conclusion

“Tips”to Avoid Liability

§ 12.01 Introduction
§ 12.02 Steps Worthy of Consideration
[1] Client “Intake”Procedures
[2] Written Letter of Engagement
[3] Written Letters to the Client and/or Memos to the File
[4] Termination and “Change of Scope”Letters
[5] Multiple Representation—Client Waiver
[6] Supervision of Associates
[7] Senior Partner Oversight Dilemmas
[8] Communication Within Law Firms
[9] Other Protective Measures
[10] Investing in Clients
[11] Counsel as Director
§ 12.03 Conclusion