SEC Whistleblower Lawyer Rules And Statutes
One question that potential SEC whistleblowers often ask is whether a particular lawyer can handle their case. SEC whistleblower lawyers themselves may ask, especially new lawyers or those who are representing an SEC whistleblower client for the first time, what rules and procedures govern their practice before the SEC? The answer is that there are rules that apply to lawyers generally, and there are SEC whistleblower lawyer rules and statutes specifically pertaining to the representation of clients in cases before the SEC.
Good starting points are the rules and regulations of the State and Federal courts where a particular SEC whistleblower lawyer is licensed. An SEC whistleblower lawyer who is licensed in a particular State must follow the laws, regulations, and rules of professional of conduct that apply to lawyers in that State.
A State might be able to bar a lawyer who is not licensed in that State from appearing in the courts of that State, and perhaps from doing other things in that State. The laws about what lawyers can and cannot do vary from State to State.
The SEC’s Rules Of Practice
The SEC’s Rules of Practice generally authorize SEC whistleblower lawyers to represent clients in proceedings before the SEC.
Specifically, SEC Rule of Practice 102(b) states that “In any proceeding [before the SEC], a person may be represented by an attorney at law admitted to practice before the Supreme Court of the United States or the highest court of any State…” (SEC Rule of Practice 102(b) (2006)) (italics added.)
Lawyers Representing Clients In Investigations By Federal Agencies
The U.S. Supreme Court has ruled that if a Federal agency has authorized a lawyer to appear and practice in front of it, a State cannot prevent that lawyer from representing clients before that Federal agency. This authorization would be limited to practicing before that Federal agency; it would not give the lawyer carte blanche to do other kinds of legal work or other things that might be prohibited by State law.
Because of this, an SEC whistleblower lawyer who is licensed in New York, for example, might be able to represent a client in an SEC whistleblower case that is being investigated by the SEC’s regional office in California, Florida, Texas, or some other State. This could include filing the client’s complaint and providing his or her information to the SEC, interacting with the SEC on the client’s behalf, meeting with the SEC staff, submitting the client’s application for an SEC whistleblower reward to the SEC, and taking an administrative appeal of an adverse preliminary award determination to the Commission itself, among other things.
The SEC Whistleblower Statute
The SEC whistleblower statute gives people who participate in the SEC whistleblower program the right to be represented by counsel. In one particular instance, the statute says that an SEC whistleblower must be represented by an SEC whistleblower attorney.
The statute also mandates that a whistleblower who wishes to proceed anonymously must be represented by an SEC whistleblower attorney. (15 U.S.C. § 78u-6(d)(2)(A).) For differences between anonymity and confidentiality in the SEC whistleblower program, click here.
The Commission’s SEC Whistleblower Lawyer Rules
Like the statute, the Commission’s SEC whistleblower lawyer rules acknowledge a whistleblower’s right to be represented by an attorney.
For example, one of the SEC whistleblower rules states that the SEC “will assess the degree of assistance provided by the whistleblower and any legal representative [i.e., lawyer] of the whistleblower in the Commission action …” (Rule 21F-6(a)(2)) (italics added.)
The SEC whistleblower lawyer rules expand on the statute’s requirement that someone must be represented by an attorney to proceed anonymously: “You must have an attorney represent you in connection with both your submission of information and your claim for an award…” (Rule 21F-7(b)(1).) In addition, the SEC whistleblower lawyer rules contain certain other procedures that an anonymous whistleblower and his or her attorney must follow.