2021 Commencement Program

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Why Does the SEC Hate Lawyers and Will the Bitterness Ever Go Away: A Review of the Reasons for the Current State of this Relationship and a Proposed Path Forward

The United States Securities and Exchange Commission (“SEC” or “Commission”) and its staff (“Staff”) have brought numerous actions against lawyers in a variety of contexts over the last several years. These enforcement actions have arguably prevented zealous advocacy as well as potentially leaving lawyers reluctant to make certain arguments on behalf of their clients so as to avoid potential disciplinary actions against them. While it is important for the Commission and its Staff to ensure that lawyers do not engage in violative conduct, this Article notes that the SEC and its Staff’s actions should be limited to only those occasions where the conduct is notorious and obvious. To avoid unwarranted interference in the right to counsel, this Article argues, at the very least, that the SEC should instead of bringing circumspect actions: (1) clarify the SEC’s approach to its use of Rule 102(e); (2) make mandatory referrals to state bar associations; and (3) create an independent board to review potential SEC actions against lawyers to ensure the good faith nature of the proposed action

Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents

This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief to these corporate employees. This Article suggests that courts need to move beyond the Upjohn decision and recognize this new landscape. It advocates for corporate fair dealing and provides a multi-faceted approach to achieve this aim. Ultimately this Article considers how best to level the playing field between corporations and their employees in matters related to the corporate internal investigation

Regulating Kenya’s securities markets: an assessment of the capital markets

International Journal of Humanities and Social Science Vol. 2 No. 20 [Special Issue – October 2012]The importance of an optimal regulatory and enforcement matrix in enhancing securities markets cannot be overemphasized. Countries with deep and vibrant securities markets generally have effective regulatoryand enforcement philosophies. This paper seeks to characterize the regulatory and enforcement paradigms ofKenya’s securities markets in the context of the global regulatory and enforcement philosophies. From the analysis, it is evident that the regulatory paradigm is indissolubly government or national with nominal self-regulation. Although the statutory framework enshrines self-regulation, the relevant provisions are ambiguous and remain ineffectual. The notion of self-regulation remains an illusion. The regulator enjoys plenary legislative and supervisory powers over market intermediaries and listed companies without being subject to meaningful accountability mechanisms. Amendments to the Capital Markets Act and its Regulations have consolidated the Capital Markets Authority’s position as a paramountregulator. Finally, the enforcement history of the Capital Markets Authority discloses no decipherable philosophy. Enforcement actions have been intermittent andreflect no imperatives.The importance of an optimal regulatory and enforcement matrix in enhancing securities markets cannot be overemphasized. Countries with deep and vibrant securities markets generally have effective regulatory and enforcement philosophies. This paper seeks to characterize the regulatory and enforcement paradigms of Kenya's securities markets in the context of the global regulatory and enforcement philosophies. From the analysis, it is evident that the regulatory paradigm is indissolubly government or national with nominal self-regulation. Although the statutory framework enshrines self-regulation, the relevant provisions are ambiguous and remain ineffectual. The notion of self-regulation remains an illusion. The regulator enjoys plenary legislative and supervisory powers over market intermediaries and listed companies without being subject to meaningful accountability mechanisms. Amendments to the Capital Markets Act and its Regulations have consolidated the Capital Markets Authority’s position as a paramount regulator. Finally, the enforcement history of the Capital Markets Authority discloses no decipherable philosophy. Enforcement actions have been intermittent and reflect no imperatives