Creating Law at the Securities and Exchange Commission: The Lawyer as Prosecutor

Abstract

This essay discusses the role of the SEC prosecutor when expanding the SEC's authority through the development of new legal theories in the context of the ethical obligations of a government lawyer. Two basic questions are raised concerning such ethical obligations. If the obligation of a government prosecutor is not simply zealous representation of a client, but also the obligation to seek justice, is it appropriate to use enforcement cases as policy instruments to achieve new legal standards? How does a government lawyer acting as a prosecutor in a novel case balance obligations to the public at large against fair treatment of an individual defendant? This essay also discusses the tensions between the enforcement staff and SEC Commissioners with respect to the process of law creation.