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Villanova University School of Law




This Article examines the legal and ethical duties of lawyers after Sarbanes-Oxley, focusing on the application, interpretation and ambiguities of the SEC rule implementing Section 307. Although our primary frame of reference will be on the SEC's new rules as an aspect of lawyer regulation, those rules are part of federal securities laws and should be considered in that aspect, i.e., whether they advance the purposes of the federal securities laws. The rules affecting lawyers should not be assessed in a vacuum as a mere turf war between federal regulators on the one hand and the organized bar and its state regulators on the other, although that is one relevant aspect.

Federal securities laws exist to protect investors, largely through compulsory issuer disclosure. The SEC exists for this purpose. Its rules, including the rules governing lawyers, must be evaluated in light of this overarching purpose. In our view, this purpose, and the SEC's rules, are largely consistent with what a prudent lawyer, representing an entity client, would do both for the good of the client and for the lawyer's own risk management. The bar's discomfort with the rules measures in large part the degree to which everyday corporate practice deviates from what one would expect from a prudent and faithful entity agent.

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