Loyalty and Disclosure in Legal Ethics

2020 ◽  
Vol 65 (1) ◽  
pp. 83-107
Author(s):  
Benjamin C Zipursky
Keyword(s):  
United States ◽  
The United States ◽  
Securities And Exchange Commission ◽  
Third Parties ◽  
Financial Fraud ◽  
Duty Of Care ◽  
Legal Ethics ◽  
Duty Of Loyalty ◽  
Role Based ◽  
Government Institution

Abstract: As fiduciaries, lawyers owe duties of loyalty to their clients, and such duties are widely understood to entail strong duties of confidentiality. This article addresses the question of whether loyalty-based duties of confidentiality preclude the legal system from imposing on lawyers duties to disclose that their clients have been engaging in financial fraud. It distinguishes two possible bases for such duties of disclosure: alleged duties of care to investors who will suffer financial harm if these frauds are not revealed, and legislative mandates requiring lawyers to report evidence of legal violations to a government institution. The latter—driven by a “gatekeeping” rationale, and illustrated here by a (failed) proposal of the United States Securities and Exchange Commission—is different in substance and structure from the former, “duty-of-care” rationale. The article argues that, while there may be good arguments based on a lawyer’s role-based duty of loyalty to a reject a duty-of-care based rationale for disclosure duties, these arguments do not defeat the gatekeeping, legislative-mandate rationales for disclosure duties. While a stringent duty of loyalty to a client may indeed conflict with the structure of duties of care to third parties, it need not conflict with a positive mandate to report legal violations.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

scholarly journals Prevalence of Financial Fraud and Scams Among Older Adults in the United States: A Systematic Review and Meta-Analysis

2017 ◽  
Vol 107 (8) ◽  
pp. e13-e21 ◽  
Author(s):  
David Burnes ◽  
Charles R. Henderson ◽  
Christine Sheppard ◽  
Rebecca Zhao ◽  
Karl Pillemer ◽  
...  
Keyword(s):  
United States ◽  
Systematic Review ◽  
Older Adults ◽  
Meta Analysis ◽  
The United States ◽  
Financial Fraud

Significant Differences in Proved Reserves Estimates Using SPE/WPC Definitions Compared to United States Securities and Exchange Commission (SEC) Definitions

2005 ◽  
Vol 8 (06) ◽  
pp. 520-527 ◽  
Author(s):  
D.R. Harrell ◽  
Thomas L. Gardner
Keyword(s):  
United States ◽  
Oil And Gas ◽  
The United States ◽  
Securities And Exchange Commission ◽  
Classification Systems ◽  
Direct Function ◽  
Oil Companies ◽  
Publicly Owned ◽  
Hydrocarbon Reserves ◽  
The U.S

Summary A casual reading of the SPE/WPC (World Petroleum Congresses) Petroleum Reserves Definitions (1997) and the U.S. Securities and Exchange Commission(SEC) definitions (1978) would suggest very little, if any, difference in the quantities of proved hydrocarbon reserves estimated under those two classification systems. The differences in many circumstances for both volumetric and performance-based estimates may be small. In 1999, the SEC began to increase its review process, seeking greater understanding and compliance with its oil and gas reserves reporting requirements. The agency's definitions had been promulgated in 1978 in connection with the Energy Policy and Conservation Act of 1975 and at a time when most publicly owned oil and gas companies and their reserves were located in the United States. Oil and gas prices were relatively stable, and virtually all natural gas was marketed through long-term contracts at fixed or determinable prices. Development drilling was subject to well-spacing regulations as established through field rules set by state agencies. Reservoir-evaluation technology has advanced far beyond that used in 1978;production-sharing contracts were uncommon then, and probabilistic reserves assessment was not widely recognized or appreciated in the U.S. These changes in industry practice plus many other considerations have created problems in adapting the 1978 vintage definitions to the technical and commercial realities of the 21st century. This paper presents several real-world examples of how the SEC engineering staff has updated its approach to reserves assessment as well as numerous remaining unresolved areas of concern. These remaining issues are important, can lead to significant differences in reported quantities and values, and may result in questions about the "full disclosure" obligations to the SEC. Introduction For virtually all oil and gas producers, their company assets are the hydrocarbon reserves that they own through various forms of mineral interests, licensing agreements, or other contracts and that produce revenues from production and sale. Reserves are almost always reported as static quantities as of a specific date and classified into one or more categories to describe the uncertainty and production status associated with each category. The economic value of these reserves is a direct function of how the quantities are to be produced and sold over the physical or contract lives of the properties. Reserves owned by private and publicly owned companies are always assumed to be those quantities of oil and gas that can be produced and sold at a profit under assumed future prices and costs. Reserves under the control of state-owned or national oil companies may reflect quantities that exceed those deemed profitable under the commercial terms typically imposed on private or publicly owned companies.

Part I General Aspects, 5 The Disclosure Paradigm: Conventional Understandings and Modern Divergences

2020 ◽  
Author(s):  
Hu Henry T C
Keyword(s):  
United States ◽  
Technological Innovation ◽  
Financial Innovation ◽  
The United States ◽  
Securities And Exchange Commission ◽  
Financial Innovations ◽  
The Core ◽  
Corporate Governance Mechanisms ◽  
Core Mission ◽  
General Aspects

This chapter focuses on the United States' (US) disclosure paradigm. It explains that the disclosure paradigm contemplates a unique regulatory role for the Securities and Exchange Commission (SEC). Here, the fulfilment of its core mission is essential not only to investor protection and market efficiency, but to a wide variety of transparency-dependent corporate governance mechanisms. Financial innovation is contributing to a ‘too complex to depict’ problem that brings into question the sufficiency of the core approach to information that the SEC has used since its creation. Moreover, particular financial innovations pose product-specific challenges to the fulfilment of the SEC's mission. Additionally, changing conceptions of the ends to be achieved by public disclosure, within the SEC disclosure system itself and pursuant to a new disclosure system driven by regulators with far different mindsets, raise new issues. It is now demonstrable that the new modes of information and the alternative data made possible by technological innovation can help address some of the disclosure challenges posed by financial innovation. At the same time, these new modes and alternative data introduce regulatory complexities. The chapter thus concludes that modern divergences are making life interesting for regulators, practitioners, and academics alike.

The Need to Amend Article 12 of the ICC Statute: Remedying the Effects of Multilateral Treaties upon Third Parties

2009 ◽  
Vol 12 (4) ◽  
pp. 485-497
Author(s):  
Ilias Bantekas
Keyword(s):  
United States ◽  
Member State ◽  
International Law ◽  
The United States ◽  
Third Parties ◽  
Third Party ◽  
Peacekeeping Missions ◽  
Multilateral Treaties

The rule in the ICC Statute whereby a third party national may be validly surrendered to the jurisdiction of the Court by a member state offends a most fundamental rule of international law, which is moreover of a customary nature. In addition, it causes more conflicts as compared to its purported benefits, given that it constitutes a major stumbling block for the United States and has upset the U.N.'s peacekeeping missions. The rule should therefore be abandoned in order to alleviate these concerns.

Part IV Financial Market Conduct and Misconduct, 11 Market Integrity

2016 ◽  
Author(s):  
Arner Douglas W ◽  
Hsu Berry FC ◽  
Goo Say H ◽  
Johnstone Syren ◽  
Lejot Paul ◽  
...  
Keyword(s):  
United States ◽  
Hong Kong ◽  
The United States ◽  
Financial Fraud ◽  
Market Manipulation ◽  
The European Union ◽  
Regulatory Structure ◽  
Market Conduct ◽  
The United Kingdom ◽  
Insider Dealing

The chapter evaluates Hong Kong’s regulation of market misconduct. The chapter argues that much of Hong Kong’s regulatory structure addressing market misconduct is derived from overseas jurisdictions (Australia and the United States, and reflecting the European Union and the United Kingdom). In relation to insider dealing, market misconduct, and disclosure Hong Kong’s approach largely follows the legislative, regulatory, and common law development in the United States. The chapter concludes that following the enactment of the Securities and Futures Ordinance (SFO), Hong Kong has implemented a comprehensive system addressing market misconduct, through both disclosure regulation and market conduct regulation. This is especially the case in relation to insider dealing, market manipulation, and financial fraud and deception. Regulation addressing such issues in Hong Kong is generally of an international standard.

Arrests are unlikely to derail Russian cyberespionage

2017 ◽  
Keyword(s):  
United States ◽  
The United States ◽  
Third Parties ◽  
Content Type ◽  
Intelligence Agencies

Significance Media outlets provided unusually detailed coverage of the story that the FSB had arrested two of its own officers and another individual. The investigation has receded into secrecy and the allegations are unclear, ranging from allowing information to reach US intelligence to collusion with hackers who blackmailed Russian victims. More generally, the case opens a window on how Russian intelligence agencies use third parties to carry out hacking. Impacts Implicit confirmation of Russian hacking will harden suspicions of Moscow in Western states. Cyber intrusions targeting the United States will continue but leaks may moderate while Moscow assesses Trump's intentions. Political hacking is likely before the French and German elections, while Ukraine can expect more cyberattacks on infrastructure.

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