Submitted Comment Name Jeremy Weinstein Affiliation Law Offices of Jeremy D. Weinstein, P.C. Subject Change §95914(c)(3) and §95923(c)(3) to conform to California statute Message Under ARB's §95914(c)(3)(C)3, “[i]f an entity participating in an auction has retained the services of a Cap-and-Trade Consultant or Advisor, as defined in Section 95923, regarding auction bidding strategy, then … The Consultant or Advisor must provide to [ARB], the following information: … Description of advisory services being performed.” This requires an attorney to disclose to ARB information concerning the advice it has given to its client on participating in the Cap-and-Trade program auctions. California Business & Professions Code 6068(e)(1) requires every California lawyer “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Accordingly, it seems against California law for an attorney to perform §95914(c)(3)(C). And, the content of counsel’s advice is not a proper subject of inquiry by the government. Under ARB's §95923(c)(3), a company: “must disclose the information pursuant to section 95923(b) to [ARB] …[w]ithin 30 days of a change to the information disclosed on Consultants or Advisors.” Under §95923(a), “[a] ‘Cap-and-Trade Consultant or Advisor’ is a person or entity that is not an employee of an entity … but is providing services listed in §95979(b)(2).” Section 95979(b)(2)(R) is “any legal services.” According to this language, if ARB threatened an enforcement action against a company, that company would be required to provide ARB with the name, “contact information,” and “physical work address” of any lawyer it spoke to within 30 days, including any from which it sought advice with respect tot he enforcement action. How a company plans to defend against an ARB allegation of violation is not a proper subject of government inquiry. When CARB first added these provisions, the law firms of Latham & Watkins, Barker McKenzie, Beveridge & Diamond, Gibson Dunn, Hunton & Williams, Paul Hastings, Pillsbury Winthrop, Norton Rose Fulbright, Reed Smith, and Law Offices of Jeremy D. Weinstein wrote a joint objection to CARB. That letter is available at https://bit.ly/3Ql5vJ0 . There have been recent legal developments concerning administrative agencies seeking attorney-client information from law firms, including the Judge Magistrate's 7/24/23 Opinion in Securities and Exchange Commission v. Covington & Burling LLP, case number 1:23-mc-00002, Dist. D.C., which did not approve a blanket subpoena. -Jeremy Weinstein Walnut Creek, CA 925-943-3103 jweinstein@jweinsteinlaw.com File Upload (i.e., Attachments): N/A
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