Not too long ago, I wrote about the Shareholder Rights Project (SRP) at Harvard Law School, noting that the SRP's website and correspondence to the Securities and Exchange Commission explicitly stated that the SRP was "representing and advising" third persons that it referred to as "clients". Not being sure what this representation and advice might entail, I contacted the Harvard Law School. I was told that the SRP “did not engage in the practice of law”. Thereafter, the SRP changed is website to delete the phrase "representing and advising". See Shareholder Rights Project Rewrites Website.
This caused me to look into just who can represent others before the SEC. The SEC does have a rule entitled "Appearance and practice before the Commission", 17 C.F.R. § 201.102. This rule comes close, but doesn't quite answer the question. It begins by providing: "A person shall not be represented before the Commission or a hearing officer except as stated in paragraphs (a) and (b) of this section or as otherwise permitted by the Commission or a hearing officer." Paragraph (a) permits an individual to appear on his or own behalf in a proceeding (Query: does it make sense to say that an individual is represented when she speaks for herself?). Paragraph (b) concerns representations by others:
In any proceeding, a person may be represented by an attorney at law admitted to practice before the Supreme Court of the United States or the highest court of any State (as defined in Section 3(a)(16) of the Exchange Act, 15 U.S.C. 78c(a)(16)); a member of a partnership may represent the partnership; a bona fide officer of a corporation, trust or association may represent the corporation, trust or association; and an officer or employee of a state commission or of a department or political subdivision of a state may represent the state commission or the department or political subdivision of the state.
It is important to note, however, that both of these paragraphs address representation "in a proceeding", a term defined in 17 C.F.R. § 201.101(a)(9). A "proceeding" under Rule 101(a)(9) is an agency process that is initiated in one of nine specified ways. A Rule 14a-8 request doesn't appear to be a "proceeding" as defined. Thus, to the extent that representing a person in a Rule 14a-8 matter constitutes representation before the Commission, any authority to do so must be under the rubric of "as otherwise permitted by the Commission". Note that "Commission" is also a defined term. 17 C.F.R. § 201.101(a)(1) ("the United States Securities and Exchange Commission, or a panel of Commissioners constituting a quorum of the Commission, or a single Commissioner acting as duty officer pursuant to 17 CFR 200.43").
Rule 102(e) also deals with the SEC's ability to censure, bar and take other actions against persons "appearing or practicing before" the Commission "in any way". Until the enactment of the Sarbanes-Oxley Act, the SEC had no explicit statutory authority to adopt Rule 102(e) or its predecessor Rule 2(e). Section 602 of the Sarbanes-Oxley Act added a new Section 4C to the Securities and Exchange Act to grant the SEC authority to censure or deny any person the privilege of "appearing or practicing before the Commission in any way" if the Commission finds, among other things, that the person does not "possess the requisite qualification to represent others". Section 602 doesn't define "appearing or practicing" and doesn't spell out what it means to possess the requisite qualifications".
