On yesterday’s ABA webcast on “Reporting Up,” there was an interesting discussion on when in-house counsel can be considered the “supervisor” of outside counsel. Richard Humes, Associate General Counsel of the SEC (speaking on behalf of himself and not the Commission) expressed the view that this scenario could exist in certain circumstances.
In other words, if an in-house lawyer is acting as “supervisory attorney,” within the meaning of Rule 205.4, for all outside securities lawyers who are appearing and practicing before the Commission in the representation of the issuer, and one of those outside securities lawyers reports evidence of a material violation to the inhouse attorney, that outside lawyer is then relieved of any further Rule 205 obligations with respect to that evidence. [I will blog more after I listen to the program again – and note that more complete notes from this webcast will be in the upcoming August Eminders.]
This interpretation of Rule 205 could be quite problematic in practice – and create some unwieldly results as companies might be pressed to engage in active review of their outside counsel’s reporting up policies. Of course, it is unreasonable for both companies and their outside counsel to be negotiating policies on a “one-off” basis. And I can’t imagine how a mid-level in-house lawyer who has asked a senior partner in a firm to review his or her work would intuitively view themselves the “supervisor” of that partner. More to come…
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