Comments of the Corporation, Finance and Securities
Law Section: Part Five
- The Attorney Documentation and Recordkeeping Provisions
Our concern with these provisions is three-fold. First, it is unnecessary,
as most attorneys would maintain some documentation of their decision-making
process regardless of a specific requirement. Second, because the
Commission would be mandating the preparation and retention of such
documents, attorneys would tend to be overinclusive, in order to obviate
their being second-guessed. The time and resources that attorneys
would devote would be disproportionate to the benefit gained by the
creation of this obligation (especially because such costs ultimately
would be borne by Issuers). Third, rather than being overinclusive,
attorneys might be underinclusive in order to avoid creating an audit
trail. Such sketchy documentation would provide no benefit and—in
fact—would be counterproductive in any subsequent inquiry.
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