SEC Releases its Internal Enforcement Division Manual

NACDL Update - October 6, 2008

The Securities Exchange Commission recently made its Enforcement Division Manual, dated October 6, 2008, available to the public. Until now, this manual, known to practitioners in the securities field as the “Red Book,” has never been available to those outside the SEC. The stated purpose of the manual is “to be a reference for the staff in the [SEC Division of Enforcement] in the investigation of potential violations of the federal securities law. It contains various general policies and procedures and is intended to provide guidance only to the staff of the Division.”

While its primary goal may be to aid SEC staff, this important reference will undoubtedly serve as an invaluable tool to our practitioners in the securities field. Most important, the manual addresses a topic of particular concern to NACDL – the Attorney-Client Privilege and privilege waiver requests. Specifically, section 4.3, titled “Waiver of Privilege” (text pages 98-100), forbids and directs “staff” from “ask[ing] a party to waive the attorney-client or work product privileges,” while simultaneously allowing “all decisions regarding a potential waiver of privilege” to be reviewed by supervisors.

The PDF version of the Enforcement Division Manual is available here.

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