Laccetti v. SEC
Laccetti v. SEC
Laccetti v. SEC
No. 16-1368
MARK E. LACCETTI,
PETITIONER
v.
***
1
This is not a case where the Board sought to exclude all
company-affiliated personnel from the interview on the ground that
Laccetti wished to keep his testimony confidential from the company
and there was a legitimate concern that company-affiliated personnel
either could not or would not comply with Laccetti’s request. See,
e.g., D.C. Bar Ass’n, Ethics Op. 296, Joint Representation:
Confidentiality of Information (a client whose attorney represents
someone else in the same matter must provide informed consent
before attorney may disclose client’s confidences to the co-
client). Perhaps the Board could do that in an appropriate case if it
wished. But we need not consider that hypothetical in this case
because that is not what the Board did here. This is also not a case
where the Board identified some specific reason why the company-
affiliated accounting expert could not be present even if the
company-affiliated attorney could be present. We do not suggest
that such a distinction could never be drawn. But the Board did not
do so in this case.
5
Second, even if the Board wanted to bar an Ernst & Young-
affiliated accounting expert, that explanation would not justify
the Board’s denying Laccetti any accounting expert. Instead,
the Board could have told Laccetti that he could bring to the
interview an accounting expert who was not affiliated with
Ernst & Young. The Board did not do so. Rather, the
Board’s letter to Laccetti flatly stated that “the presence of a
technical expert consultant” is “not appropriate at this time.”
JA 458.
Under the Board’s rules, the Board therefore may not bar
a witness from bringing an accounting expert who could assist
the witness’s counsel during an investigative interview. (To
prevent monitoring, the Board may exclude a company-
affiliated accounting expert when no other company-affiliated
personnel are allowed at the interview.) To be clear, the Board
is always free to change its rules, subject to constitutional and
statutory constraints. Our holding on this point is therefore
exceedingly narrow. All we conclude in this case is that the
Board, under its current rules, must allow a witness the
assistance of an accounting expert when such an expert could
assist counsel at an investigative interview. Our conclusion is
especially narrow because the Board itself has long directed its
staff to “permit a technical consultant to be present during
investigative testimony.” PCAOB Release No. 2003-15 at
2
If the Board in the future wants to argue that Whitman was
wrongly decided, we can consider that argument. But the Board has
not advanced such an argument in this case. On the contrary, at oral
argument, the Board’s counsel was specifically asked about
Whitman, and the Board’s counsel did not say that Whitman was
wrongly decided or that the Court should consider that question here.
See Tr. of Oral Arg. at 37. Rather, counsel simply argued that the
right to counsel in the APA was broader than the right to counsel in
the Board’s rules.
8
A2-18. So our decision on this point means no more than that
the Board must apply its rules as the Board already applies its
rules. The problem is that the Board did not follow its rules in
this particular case.
***
So ordered.