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Boston Bar Association Email: rule-comments@sec.gov April 7, 2003 Jonathan G. Katz, Secretary Re: Release No. 33-8186; S7-45-02 Dear Secretary Katz: On behalf of the Boston Bar Association ("BBA"), I write in connection with the SEC's notice of proposed rulemaking with respect to section 307 of the Sarbanes-Oxley Act of 2002 ("Act"), 15 U.S.C. §§ 7201 et seq., set forth in Release 33-8186 (the "Release"), proposing an alternative to the "noisy withdrawal" provisions set forth in SEC Release 33-8150.1 More particularly, the BBA writes in response to the Commission's solicitation of comment concerning "whether an attorney who is required to withdraw under this paragraph should be required to withdraw from all representation of the issuer, or only from representation on the matter concerning the material violation?" Release 33-8186, III(C)(1). The following comments are limited to this particular question, and are not intended to address other aspects of or questions raised under the Release. The BBA respectfully opposes any requirement that lawyers (and their law firms) withdraw from all representations of the issuer where the issuer client does not "respond appropriately" to reports of evidence of a possible securities law violation or up-the-ladder reporting. Instead, the BBA proposes that mandatory withdrawal be limited to the representation triggering the up-the-ladder report, or be limited to that representation plus other pending matters in which the attorney and her law firm are deemed to be appearing and practicing before the Commission. Thus, under the BBA's proposal, withdrawing counsel will be permitted to continue representing the issuer client in matters unrelated to the SEC engagement, such as in criminal matters, tort law claims, employment law claims and other types of matters have no relationship to the securities law representation addressed by the Act. Withdrawal in all matters, even if permitted by court rules in these circumstances, provokes needless disruption of court dockets and justice delayed, without any corresponding and meaningful benefit in terms of the goals of the Act. Furthermore, a sweeping mandatory withdrawal rule denying issuers counsel of choice in all matters will cause financial harm to issuers, and their stockholders, as a result of inefficiency and duplication of expense inherent whenever counsel must withdraw and be replaced by new counsel, without any measurable benefit in return. Thank you, and if you have any questions about these comments, please contact the undersigned at joe.kociubes@bingham.com.
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