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Abstract

Reforms in Corporate Governance around the world have focussed primarily on the strengthening of independent directors, introduction of audit committees and reforms concerning the audit profession. However, the securities lawyers and commercial law firms who advised the fallen corporations have overwhelmingly avoided the spotlight despite the fact that some of the top-tier firms were involved in allegedly criminal or at least, from a legal perspective, highly risky transactions.

This article tries to explore to what extent the securities attorney can or should serve as a gatekeeper with ‘guardian-like responsibilities to investors who rely upon the disclosures [and transactions] that the securities attorney typically prepares or at least reviews.’ The spotlight will be on the question of whether corporate lawyers, particularly securities lawyers, should blow the whistle in cases of suspected financial fraud, i.e. reporting (potential) illegal or illegitimate practices of the client’s employees and management either up to higher authorities within the corporation or as a last resort to regulatory bodies outside the corporation.

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