Former SEC Attorneys as Defense Lawyers.

Last Updated on: 4th August 2026, 01:33 am

A former SEC title does not necessarily mean a lawyer has the ability to represent you in an SEC enforcement matter. On its own, this title reveals very little about a lawyer’s experience or skills. The key is not necessarily having the former title, but how the attorney’s former SEC experience is relevant to your matter. Along with this, you need to make sure that they have experience as a trial attorney. The prior agency experience of a former SEC attorney should not replace experience in securities law or trial skills. When comparing candidates for your defense, it is important to assess former SEC attorneys based on their tenure, former agency experience, number of matters handled, level of litigation experience, and recency of their time at the SEC. At the same time, remember that a biographical case list cannot establish that the attorney’s former-SEC status had any impact on the outcome of the matter. If you’re currently undergoing an SEC examination, you need to be mindful of the fact that this examination can uncover issues that will later be referred to Enforcement. In these circumstances, you will want the legal team at Spodek Law Group to advise you on whether you need to take action. In these cases, we will advise you regarding remediation prior to the start of any government investigation. Once the SEC is involved, you will have to make an informed decision about self-reporting. In any event, if you believe that you may have been involved in a securities violation, you will need to decide what strategy is in your best interests at this stage. While many cases involve issues with publicly traded companies, the SEC is also able to bring enforcement actions against entities such as investment advisers, private funds, and broker-dealers.

What Former SEC Experience Actually Matters for My Case?

Depending on where a lawyer spent time at the SEC, their experience can be quite different. For example, lawyers that worked within the Enforcement division will not have the same experience as lawyers that worked within the Corporation Finance division or on the Executive Staff. Many senior SEC lawyers will have served as regional supervisors, too; these lawyers have likely managed many investigations without personally trying many cases. When facing an SEC enforcement action, your legal defense may begin as soon as you have first been contacted by the regulator. This may involve conducting interviews, taking testimony, proffering information, and responding to subpoenas. Defending against an SEC enforcement action can also involve drafting a Wells submission, which is a pre-commission legal brief that attempts to convince the commission not to authorize an enforcement action. It also can involve representing you in commission proceedings after the commission authorizes enforcement. Prior to going to the U.S. District Court, former SEC lawyers may be able to help conduct internal investigations and help you come prepared to deal with the situation before regulators file any charges. We understand the importance of having prior SEC experience. For this reason, we emphasize working with former SEC lawyers, while we also emphasize that prior experience is not the only important factor. When it comes to Rule 102(e) proceedings, you will want to make sure your lawyer has handled these proceedings previously and has experience representing clients in similar situations. Rule 102(e) proceedings are frequently conducted by the SEC against lawyers and accounting professionals. Accounting professionals commonly face these proceedings for revenue recognition violations and accounting fraud. As a result, former SEC lawyers often assist with cases involving these types of matters.

While most cases involve securities laws, including the Securities Act of 1933 and the Securities Exchange Act of 1934, we also defend against cases involving other federal laws. When facing an SEC enforcement action, you need to engage a defense team that is fully experienced and prepared to address your situation.

Do I Also Need a Criminal Defense Lawyer?

The SEC is a civil enforcement agency, while criminal prosecutions are the responsibility of the DOJ. A former SEC enforcement lawyer is not automatically a criminal prosecutor, though many of them have experience in this area as well. Those who are former Special Assistant United States Attorneys, however, have extensive experience handling federal prosecutions.

The SEC and DOJ can both investigate the same conduct, and often these investigations proceed simultaneously. C.F.R. § 240.24c-1 expressly allows the SEC to share information about its investigations with specified federal, state, and local government authorities. Therefore, if you are facing an SEC enforcement action, you will need a defense strategy that addresses both potential civil and criminal outcomes. This includes having an understanding of how both the SEC and DOJ have different roles and authorities.

At this stage, you will also need to decide whether or not to invoke your Fifth Amendment privilege during any questioning. If you are facing an SEC enforcement action, your attorney must also help you determine how it might affect you if you invoke the Fifth Amendment during a civil enforcement proceeding, because you could be at risk of facing an adverse inference. This is very different from how the Fifth Amendment works in a federal criminal case, where the government generally may not invite an adverse inference from a defendant’s failure to testify at trial. Additionally, if you reach a resolution with the SEC, the DOJ is not bound to it unless it agrees. Resolving your case with the SEC will not mean that your case is dismissed by the DOJ.

For example, conduct that could lead to violations of the FCPA is most likely to result in parallel investigations from both the SEC and DOJ. Foreign dealings that raise questions at the SEC may also trigger questions from the DOJ. These types of cases should be handled by a legal team that includes a former SEC attorney with experience in criminal cases.

When Do Companies and Employees Need Separate Lawyers?

In some cases, companies need to retain independent investigative counsel to conduct internal investigations. This means a law firm or an attorney who is not involved in the company’s day-to-day activities, or more importantly, who is not the attorney who drafted the disclosures or documents currently under scrutiny. Boards and audit committees generally are responsible for selecting counsel to conduct these internal investigations. Often, this is not the same counsel that the company previously used to handle these matters. When a company retains a firm to conduct internal investigations, the company’s board may also make informed decisions about the necessity of hiring a law firm to represent individuals who may be subject to the same investigation.

Individuals in the company who are subject to the same investigation can be represented by the same law firm. However, as specified in ABA Model Rule 1.13, if a company has internal or external counsel, then the lawyer may represent its constituents only subject to Rule 1.7.

ABA Model Rule 1.13 identifies the organization rather than its constituents as counsel’s client in this type of situation. However, as ABA Model Rule 1.7 explains, it may be possible to represent both the organization and individuals within the organization in certain cases. When it is possible for the lawyer to represent both parties, the lawyer will need to obtain informed written consent after explaining the potential for conflicts of interest.

Employees who speak with their employer’s counsel need to be given Upjohn warnings. These warnings clarify that counsel represents the company, not the employee, and that the company has control over the privilege. These warnings also clarify that the company can waive this privilege if it wants to, and it can do so without the employee’s consent.

In most cases, the corporation has the right to waive any privilege that covers any communications between company counsel and an employee. When individuals participate in SEC investigations or other federal investigations, their communications with a lawyer may not have privilege protection if the lawyer is representing the company.

These issues apply to PCAOB proceedings as well. Accounting firms and individual auditors both have the same responsibilities to respond to the PCAOB when faced with these proceedings. When the PCAOB conducts these proceedings, the accounting firms and auditors need representation that has experience specifically in these types of cases.

Can a Former SEC Attorney Legally Handle My Matter?

If you are thinking about hiring a former SEC attorney to represent you or your organization, it may be worth making sure that your choice of counsel is legal.

If you are thinking about hiring a lawyer who is currently employed by the SEC, you will need to look at the post-employment restrictions that are imposed under 18 U.S.C. § 207.

Former SEC attorneys and all other federal government employees are subject to post-employment restrictions under 18 U.S.C. § 207. In some cases, these restrictions may prevent a lawyer from representing a client in a matter involving the SEC.

For example, 18 U.S.C. § 207(a)(1) permanently restricts former employees from making, with intent to influence, communications to or appearances before the government on behalf of another person concerning a particular matter involving specific parties in which they participated personally and substantially.

18 U.S.C. § 207(a)(2) prohibits former employees from contacting the government on any particular matter that was under their official responsibility during their last year of government employment, and this restriction applies for two years following their employment.

18 U.S.C. § 207(c) imposes a one-year “cooling-off” period on certain former senior employees. This section prohibits these employees from contacting the agency that employed them on behalf of a client.

Along with these statutory restrictions, former SEC attorneys are subject to restriction under ABA Model Rule 1.11. This rule generally prohibits lawyers from representing a client in a matter in which they participated personally and substantially as a public officer or employee, unless the appropriate government agency gives informed consent confirmed in writing.

If you have any questions regarding the legal experience of an attorney, you may be able to find helpful information in SEC personnel announcements. Archived biographies of SEC employees may also be available on the SEC website, and they can establish the public-service date and title for the attorneys concerned. Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

How Can I Verify a Lawyer’s SEC Claims?

When interviewing former SEC enforcement attorneys, you can ask for proof of their prior experience and outcomes. At Spodek Law Group, we encourage our clients to do this. You can use the public-access system PACER to read the docket entries, judgments, and other relevant documents for litigation matters. You may also be able to find SEC litigation releases and administrative orders for enforcement proceedings. This will help you confirm the date the proceeding began, the allegations, the proceeding number, and who the parties were.

It is important to be able to identify whether a case ended with a dismissal, settlement, defense verdict, or staff declination. With this in mind, it is also important to understand the significance of each outcome. For example, a closing notice from the SEC staff is an informal communication that the SEC does not intend to take enforcement action. It is not a judicial ruling on the merits of the case. Similarly, if a case ended with a settlement where the defendant neither admitted nor denied the charges, then there was no adjudicated finding of the merits. These are all outcomes that may look good on a lawyer’s resume, but you need to make informed decisions about what each of these outcomes means for your case.

If you can’t find relevant information in litigation releases or PACER, a former SEC attorney may be able to explain how a matter reached its outcome. For example, a former SEC attorney’s biographical case list should distinguish between matters in which they were the trial lawyer and matters in which they merely had a support role. This will allow you to make informed decisions when comparing different candidates.

Another issue to keep in mind is the relevance of the candidate’s experience in light of changes to federal securities laws, rules, and Commission policy. This will be particularly important when a case is many years old. The more recent the lawyer’s experience, the more likely it is that their experience is relevant.

Professional rankings and awards can be helpful for getting an initial idea of a candidate’s standing in the legal profession, but they will not provide enough information on their own. Each publisher that publishes professional rankings and awards does so based on its own criteria, and those rankings or awards may not be relevant to the issues that are at stake in your case.

With this in mind, a lawyer’s prior experience will be especially important when the former attorney’s case was a litigation matter that ended in a defense verdict.

What Should the Engagement Cover Besides Attorney Fees?

ABA Model Rule 1.5(b) calls for counsel to “communicate or promptly supplement in writing, directly, the scope of the representation and the basis or rate of the fee or fees.” When facing an SEC enforcement action, you will need to make sure that you fully understand the legal representation you have engaged. This involves more than just attorney fees. For example, if you only know the attorneys’ hourly rates, then you do not know the expected staffing of your case, expert fees, vendor expenses, or any other costs you may incur. Similarly, attorney budget figures generally are estimates. You need to know whether your attorney has agreed to a maximum cost or whether he will be limited by an agreed-upon budget.

Are There Other Protections for Documents and Communication With Your Lawyers?

For companies, clients can rely on attorney-client privilege and the work product doctrine to protect documents and communications with company counsel. Federal Rule of Civil Procedure 26(b)(3) protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” These qualifying materials may be protected even before the litigation is filed if it has become reasonably anticipated. For example, if a company faces an SEC inquiry, litigation might be reasonably anticipated at this stage. At this stage, the company will need to fulfill its duty to preserve all relevant information, and that includes information on computers, cell phones, and in cloud-based services.

For individual defense counsel, protections can also be found in the defendant’s corporate documents, contractual agreements, and applicable law. Many corporate documents require company shareholders to indemnify a company’s executives for all necessary expenditures for their defense. Indemnity is the obligation to cover the ultimate cost of the defense and any liability if the defense is unsuccessful. On the other hand, advancement is the obligation to pay defense costs up front. A corporation’s bylaws and shareholders’ agreement can give these rights to the corporate officers. The law governing the business, including state law, may also apply. Many cases will have overlapping requirements, and individuals who are covered by indemnity provisions and advancement will want to make sure that their defense attorneys adequately understand the specific requirements that apply in their case.

Companies can also secure coverage under directors and officers (D&O) insurance. D&O insurance is optional and provides coverage for defense and settlement costs. When facing an SEC enforcement action, however, it is important to remember that D&O policies can include stringent requirements. You may need to timely notify your insurer before engaging counsel or filing charges. You will need to obtain consent to advance your expenses, and you may need your insurer’s consent to settle any case that your insurer is paying for.

Should I Change Lawyers During an SEC Investigation?

Defendants can continue their representation from their investigation through their trial and appeal. They can also decide to retain new counsel. While a defendant is not prohibited from retaining new counsel during an ongoing investigation, this will not necessarily stop the investigation. For example, new counsel does not have the authority to suspend SEC subpoenas, Wells notice response deadlines, or court schedules. If these deadlines will remain the same, then the best option for many defendants is to hire a lawyer who can take on the case on an emergency basis. In litigation, court rules may require a lawyer’s permission to withdraw from representation. In addition to complying with these rules, ABA Model Rule 1.16(d) requires lawyers to do what is “reasonable to avoid foreseeable prejudice” to their clients when they withdraw from representation. This includes requests for a reasonable period of time to allow the clients’ new counsel to take over their case. If you’ve received a Wells notice from the SEC, this does not mean that you have been charged. At this stage, you will still have the opportunity to respond to the SEC, and your response could convince the SEC staff to not recommend charges. As a result, you can decide to hire new counsel at this stage as well.

If the SEC staff does not recommend that the Commission take action against you, then you have not been charged. As long as the SEC staff does not recommend prosecution, you can continue to focus on your business or job while the SEC closes out its investigation. In these cases, the SEC staff closes the investigation without filing charges.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.