tag:blogger.com,1999:blog-2494261085549436083.post6414814799617492685..comments2010-03-13T16:05:04.127-05:00Comments on Forward Movement: Holy Crap: Rakoff refuses to approve BofA settlement - trial in February?Stephanie Soondarhttp://www.blogger.com/profile/10641501848328041087noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-2494261085549436083.post-25377157739670367232009-09-16T22:02:24.563-04:002009-09-16T22:02:24.563-04:00Hi Anon,
Thanks for your comments.
I think peopl...Hi Anon,<br /><br />Thanks for your comments.<br /><br />I think people are talking about whether the attorneys should be held liable ... it's just a conversation that only a few professional groups know to bring up, though. Namely: bankers and lawyers (and I doubt either one of them is going to assume this sort of responsibility). <br /><br />Particularly considering that one of the BofA defenses may really rock the practice if it is overturned; that defense: this is just the way it is done (adverse info is kept undisclosed in private schedules apart from the proxy statements but referenced by the proxy statements).<br /><br />As a young attorney, I have to admit the NYAG's argument resonates with me: that the proxy, which precedes the vote, should clearly inform the shareholder of pertinent info. But not yet accumulating practice experience, I don't know if that's an academic ideal ... <br /><br />But people are starting to talk. An ATL thread a few weeks ago raised the question of attorney liability, and next week I'm attending a Bar eventthat is convening to discuss the issue.<br /><br />I agree with you - as practitioners, we have a responsibility to be ethical, and inform our clients about the consequences of their choices. But then the choice is theirs, right? Also: as attorneys, isn't our job to make possible what the client wants? <br /><br />I don't know the answers - and I don't think the legal community does right now, either ... which means a very interesting several months ahead (not to mention blawg posts).<br /><br />Thanks again - Sls.Stephanie Soondarhttps://www.blogger.com/profile/10641501848328041087noreply@blogger.comtag:blogger.com,1999:blog-2494261085549436083.post-22100273023397709662009-09-16T17:16:24.552-04:002009-09-16T17:16:24.552-04:00See also footnotes 2 & 3...See also footnotes 2 & 3...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2494261085549436083.post-13775024584714418292009-09-16T17:07:04.465-04:002009-09-16T17:07:04.465-04:00In fact, to emphasize his gruff against the lawyer...In fact, to emphasize his gruff against the lawyers, the judge goes on to specifically note that BOA "never actually provides the Court with the particularized facts taht the Court requested, such as precisely how the proxy statemetn came to be prepared, exactly who made the relevant decisions as to what to include and not include so far as teh Merrill bonuses were concerned, etc."<br /><br />One would expect BOA to argue this stuff is privileged/confidential/work product, etc. After all, what is "material" (and hence needs to be disclosed) is a legal question on which executives would (rightly) rely on legal advice. If reliance on advice of counsel comes up as a defense, good bye privilege and hello legal malpractice suit. <br /><br />Anyway, it's a possibility. There is sometimes a fine and often blurry line betweeen law and business in securities practice, and this case could become a very good study about that line.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-2494261085549436083.post-23983223916788878582009-09-16T16:53:31.420-04:002009-09-16T16:53:31.420-04:00Here's the part I thought was most interesting...Here's the part I thought was most interesting (and pertinent to this blog): <br /><br />"The S.E.C., while also conceding that its normal policy in such situations is to go after the company executives who were responsible for the lie, rather than innocent shareholders, says it cannot do so here because '[t]he uncontroverted evidence in the investigative record is that lawyers for bank of America and Merrill drafted the documents at issue and made the relevant decisions concerning disclosures of the bonuses.' Id. BUT IF THAT IS THE CASE, WHY ARE THE PENALTIES NOT THEN SOUGHT FROM THE LAWYERS?" (all caps emphasis added).<br /><br />yea - why NOT the lawyers? and why aren't more folks discussing THAT aspect of this mess? If this was fraudulent and the lawyers not only failed to report it (in violation of up-the-ladder reporting rules in SOX), but in fact, facilitated the fraud, is this not a HUGE ethical violation that could and perhaps should cost folks their very legal careers? <br /><br />Fraud is never in the client's best interest. That could (and should) be one of the lessons here.Anonymousnoreply@blogger.com