Current Ethical Issues in the Practice of Securities Law

Synopsis

This program addresses many of the ethical and legal issues that corporate and outside counsel face in advising corporations, directors and officers, handling shareholder and derivative suits, and responding to government investigations. The program is presented using a role-playing scenario in which the presenters discover some possible accounting irregularities at a public company. The presenters play various parts, including that of corporate counsel, outside counsel, auditor's counsel, and SEC counsel. The scenario is followed by an in-depth discussion of topics which include attorney-client privilege when representing a corporate entity, multiple representations, issues regarding internal investigations, responses to client misconduct, issues dealing with outside auditors, and the impact of the Sarbanes-Oxley legislation.



Outline
I. Public Company Ethical Issues
    A. Introductions
    B. The Case Study
        1. Background
        2. The Issues Unfold
        3. After the Initial Look
        4. Outside Auditors Counsel's View
        5. Getting on the Right Track
        6. Things Get Worse
        7. Need to Contact the SEC
        9. A Chat with the SEC
      10. The SEC Contacts the Audit Firm
      11. Addressing the Whistleblower Issue
      12. CFO Counsel Joins the Team
      13. Who Represents Who? Getting It Straight
      14. Plan of Action Once Investigation is Complete
    C. The Panel's Advice
    D. Panel and Audience Discussion
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The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of Daniel J. Kramer

Daniel J. Kramer
Paul, Weiss, Rifkind, Wharton, & Garrison LLP 

Daniel J. Kramer is Co-chair of the Securities Litigation and Enforcement Group at Paul, Weiss, Rifkind, Wharton & Garrison LLP,. He is a leading trial lawyer and litigator. Called “one of the stars of his generation” by Chambers USA and a “quiet giant” by Lawdragon, Dan has handled complex litigations for some of the world's largest companies and has significant experience representing boards of directors on corporate governance issues and special committees in internal investigations. Mr. Kramer has been selected as a Band 1 securities lawyer in the United States by Chambers, as one of America’s leading lawyers handling “Bet the Company” litigation by Best Lawyers in America, as one of “New York's Top 10 Lawyers” by Super Lawyers, as one of the “500 leading lawyers in America” by Lawdragon and as “one of the most influential people in corporate governance and the boardroom” by Directorship Magazine.

Mr. Kramer is the co-editor of Corporate Internal Investigations: An International Guide (Oxford University Press) and co-author of Federal Securities Litigation: A Deskbook for the Practitioner (Data Press) and of Regulation of Market Manipulation (Matthew Bender).

Mr. Kramer received his bachelor’s degree magna cum laude from Wesleyan University in 1980 and J.D. from New York University Law School in 1984. He served as a law clerk to the Honorable Wilfred Feinberg, Chief Judge of the United States Court of Appeals for the Second Circuit.

Photo of Pierre Gentin

Pierre Gentin
Credit Suisse

Pierre Gentin is a Managing Director and Global Head of Litigation for Credit Suisse. He is responsible for the worldwide management of the firm’s private litigation, government investigations and regulatory enforcement matters, and employment disputes. He is also the firm’s Head of Reputational Risk for the Americas.

Mr. Gentin joined Credit Suisse in 1998 from the U.S. Department of Justice where he served as Assistant United States Attorney for the Southern District of New York. Mr. Gentin has taught law as Adjunct Professor of Law at Fordham University and he currently serves on the executive committee of the Practicing Law Institute and as Vice-Chair of the World Economic Forum’s Global Agenda Council on Values in Decision-Making.

Mr. Gentin received his A.B. magna cum laude, Phi Beta Kappa, from Princeton University in 1989, and his J.D. from Columbia University in 1992.

Photo of Joanna C. Hendon

Joanna C. Hendon
Morgan Lewis & Bockius LLP

Joanna C. Hendon is a litigation partner at Morgan Lewis & Bockius LLP where she represents clients in white collar, SEC and SRO enforcement matters, in complex civil litigation and at trial. In 2011 Ms. Hendon defended the first of the “expert network” insider trading cases tried to a jury, United States v. Jiau, 11 Cr. 161 (JSR). For six years Ms. Hendon served as an Assistant United States Attorney in the U.S. Attorney’s Office for the SDNY where she was a member of the Securities & Commodities Fraud Task Force.

In 2001 Ms. Hendon received the John Marshall award, the highest award given by the U.S. Department of Justice to an Assistant United States Attorney for excellence at trial. Between 2006 and 2009, Ms. Hendon was First Vice President and Assistant General Counsel at Merrill Lynch & Co. where she had global responsibility for criminal investigations and certain civil enforcement matters arising from the financial crisis. Ms. Hendon is an adjunct professor at the Fordham Law School where she teaches a course in securities fraud and insider trading. She is a member of the Criminal Justice Act Panel of attorneys who represent indigent defendants in criminal cases pending in the SDNY. Ms. Hendon is the co-chair of the NYSBA’s White Collar litigation subcommittee, a position she has held for five years.

Ms. Hendon reciever her J.D. in 1991 from Yale Law School and her B.A. in 1987 from the University of British Columbia. She served as a law clerk to the Hon. Frank M. Coffin, United States Court of Appeals for the First Circuit.

Photo of Barry W. Rashkover

Barry W. Rashkover
Sidley Austin LLP

Barry W. Rashkover is a partner in Sidley Austin’s New York litigation group and co-global coordinator of Sidley's SEC Enforcement Practice group. His practice focuses on representing institutions and individuals in federal securities investigations and litigation, including matters with the SEC, FINRA, NYSE and other regulators.

Until June 2004, Mr. Rashkover was a senior official in the Enforcement Division of the SEC where, among other positions, he served as Co-Head of Enforcement and Associate Regional Director for the SEC's Northeast Regional Office. At Sidley, Mr. Rashkover's matters have involved asset-backed securities, hedge fund trading, information barriers and alleged insider trading, alleged stock manipulation, SEC Regulation SHO and other short-sale issues, broker-dealer trade execution, broker-dealer regulatory reporting and operational issues, accountant liability, alleged mutual fund and brokerdealer conflicts of interest, and financial reporting by public companies. Mr. Rashkover also defends clients in parallel class actions and criminal investigations, represents clients in regulatory "sweep" inquiries and examinations, counsels’ regulated entities on securities compliance, and conducts internal investigations.

At the SEC, Mr. Rashkover headed some of the agency's most important enforcement matters, including enforcement actions against NYSE specialist firms for unlawful proprietary trading (resulting in a $240 million global settlement); fraud cases involving Adelphia Communications Corp. and Computer Associates International, Inc.; cases arising out of improper proprietary trading by NYSE floor brokers; insider trading cases such as SEC v. Samuel Waksal and SEC v. Martha Stewart and Peter Bacanovic; and federal court cases halting ongoing fraud, including SEC v. The Bennett Funding Group, Inc., which involved one of the largest securities "Ponzi" schemes to date.

In 1999, Mr. Rashkover received the SEC’s Stanley Sporkin Award for outstanding contributions to the agency’s enforcement program. Mr. Rashkover is a frequent speaker and writer on SEC enforcement and related issues. He is an adjunct professor at Fordham Law School, where he teaches a course on insider trading and other securities fraud issues. He has participated in recent programs concerning SEC enforcement and litigation sponsored by the New York City Bar Association, American Conference Institute, Directors Roundtable, Glasser LegalWorks, PLI, Legal IQ, SEC and Department of Justice, among others.

Mr. Rashkover received his J.D. in 1986 from Cornell Law School, where he was Note Editor of Cornell Law Review from 1985 - 1986, and received his A.B. from Columbia University in 1983.

Photo of Michael R. Young

Michael R. Young
Wilkie Farr & Gallagher LLP

Michael R. Young is a litigation partner in the firm of Wilkie Farr & Gallagher LLP, whose practice concentrates on securities and financial reporting with a particular emphasis in accounting irregularities.

Mr. Young is Chair of the firm’s Securities Litigation & Enforcement Practice Group with a practice involving the representation of companies, audit committees, officers, directors, accounting firms, and investment banks in domestic and international securities class actions, SEC and other governmental proceedings, and special investigations. His trial work has included financial reporting matters in federal, state, and bankruptcy courts throughout the United States. His experience includes the landmark jury verdict for the defense in the first securities class action tried before a jury pursuant to the Private Securities Litigation Reform Act of 1995.

Mr. Young has served as a member of the Financial Accounting Standards Advisory Council to the Financial Accounting Standards Board. He also serves as Chair of the Financial Reporting Committee of the New York City Bar Association and as counsel to the American Institute of Certified Public Accountants and the newly-formed Center for Audit Quality. He has been described by Chambers (USA) as "the best lawyer in the city" for accounting firm-related disputes, been profiled in Lawdragon magazine among its "500 Leading Lawyers in America," been named by U.S. News as one of the "best lawyers" in the U.S., been described by New York magazine as one of New York City’s "best lawyers," and been named by Accounting Today as one of the "top 100 most influential people in accounting." Mr. Young’s clients include a former Chairman of the SEC, a former Chief Accountant of the SEC, a former Chairman of a Senate investigative committee, and other such officials in their capacity as members of boards of directors or audit committees. They also include most of the largest accounting firms and numerous public companies and their officials.

A frequent author on the subjects of financial reporting, audit committee effectiveness and the role and responsibilities of the independent auditor, Mr. Young’s publications include The Financial Reporting Handbook (2003) and Accounting Irregularities and Financial Fraud (3d ed. 2006). He has also submitted testimony in hearings before the Senate Banking Committee’s Subcommittee on Securities, the Treasury Department’s Advisory Committee on the Auditing Profession, the New York Stock Exchange’s Blue Ribbon Committee on Improving the Effectiveness of Corporate Audit Committees, and the Panel on Audit Effectiveness of the Public Oversight Board. He is also a member of the New York Mayor’s Advisory Committee on the Judiciary.

Mr. Young received his J.D. from Duke University School of Law in 1981 and his B.A. from Alleghany College in 1978.

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Details

Course Code : 773165
Release Date : 11/30/2012 12:00:00 AM
Recorded Date : 7/26/2012
Length : 1hr 49min
Format Type : Video

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