Business, money and regulation
How to Select a Securities Attorney: A Complete Guide
“Securities attorney” describes several different kinds of work. An attorney who structures a private offering for a company, an attorney who answers a subpoena from the Securities and Exchange Commission, an attorney who sets up compliance for an investment adviser, and an attorney who brings an investor’s claim against a brokerage firm in arbitration all practice securities law, but they do different things for different clients, and experience on one route does not automatically carry over to another. The useful first question is not “who is a good securities lawyer” but “which of these four routes am I on.” Everything about the comparison, from which records you check to which questions you ask, follows from that answer.
Step 1: Place Your Matter on One of Four Routes
| Route | What happened | What the attorney actually does |
|---|---|---|
| <strong>Raising capital</strong> | A company plans to sell shares, notes, SAFEs, or other securities | chooses an offering route, sets rules for how you market and whom you accept, prepares documents, makes filings |
| <strong>Regulatory contact</strong> | You, your company, or an employee received a letter, subpoena, or request from the SEC or a state regulator | responds, prepares people for testimony, manages document production, defends the matter if it proceeds |
| <strong>Adviser compliance</strong> | You are forming or running an investment advisory business | registration and continuing compliance, which is ongoing work rather than a single transaction |
| <strong>Investor claim</strong> | You believe a broker or brokerage firm mishandled your account | evaluates the claim, chooses the forum your agreement allows, brings the case |
Some matters sit on two routes. A company that raised money privately may later receive an inquiry about that offering. If that is your situation, ask whether the attorney handles both kinds of work or would bring in a colleague, and how the two would share the file.
Founders choosing counsel for a startup financing face a related but different decision, centered on whom the attorney represents and how the round is structured; the securities questions here concern the regulatory route itself.
Step 2: Confirm the Attorney Can Appear Where Your Matter Will Be Heard
Two kinds of admission matter, and they answer different questions.
Before the SEC. The SEC’s Rules of Practice allow a party to 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” (17 CFR § 201.102). Admission to federal court is not required for that. The same rule also lets the Commission bar a person from appearing before it after a hearing, on grounds that include lacking the qualifications to represent others or engaging in unethical or improper professional conduct. A direct question covers it: has the attorney ever been the subject of a proceeding under Rule 102(e)?
In court. If your matter could end up in a federal or state court, admission there is a separate question, set by that court’s own rules. Ask whether the attorney is admitted in the court where your matter would land, or who would appear if not.
A state bar directory confirms the license and its status. Treat it as a licensing check only: it says nothing about whether securities work is the attorney’s main practice, and it cannot tell you which of the four routes the attorney knows.
Step 3: If You Are Raising Capital
What the offering route changes for you
A private raise relies on an exemption from registration, and the exemptions are not interchangeable. The choice changes how you are allowed to find investors, whom you may accept, what you must document, and what you must file. Under Regulation D, for example, one route under Rule 506(b) caps the number of purchasers, counted as the rules provide, and requires each non-accredited purchaser to be able to evaluate the investment, while another route under Rule 506(c) is limited to accredited investors and requires the issuer to take reasonable steps to verify their status (17 CFR § 230.506). Rule 152 governs when two offerings close together in time are treated as one, which matters if you plan more than one raise (17 CFR § 230.152).
You do not need to master those rules. What you need is an attorney who can turn them into operating instructions. In a consultation, describe your plan, then listen for whether the attorney asks:
- how you intend to find investors, and whether anything will be said publicly;
- who the likely investors are, and how you would confirm their status;
- whether you raised money recently or expect to raise again soon;
- who in your company will speak to investors, and what they will say.
Then ask: “For a plan like ours, which route would you choose, and what would it require us to do differently in marketing and investor screening?” An answer with concrete instructions, such as what may go on your website, what an investor must provide before closing, and how long to wait between raises, gives you a compliance plan you can compare. If you hear only the name of an exemption, ask what it would require of you in practice before relying on that answer.
The filing deadline that runs from the first sale
One deadline is precise. An issuer relying on Rule 504 or Rule 506 must file a notice on Form D “no later than 15 calendar days after the first sale of securities in the offering,” with the date moving to the next business day if it falls on a weekend or holiday (17 CFR § 230.503). The trigger is the first sale, not the first conversation with an investor and not the final closing. Ask who on the attorney’s team will learn when your first sale happens and who files. State notice filings may follow; ask which states the attorney expects and who tracks them.
Two plans that change the analysis
- Crowdfunding. If you are considering Regulation Crowdfunding, the exemption caps the amount sold in a 12-month period at “$5,000,000” and limits how much a non-accredited investor may put in, based on income or net worth (17 CFR § 227.100). Ask whether your raise fits those limits before you plan around them.
- Resales by early holders. If founders, employees, or early investors will want to sell, holding periods apply under Rule 144: six months after acquisition for a company that has been filing Exchange Act reports for at least 90 days, and one year otherwise (17 CFR § 230.144). Ask how that affects the people who will hold your shares.
Bring: your planned terms, a dated list of any earlier sales, anything already sent to investors, and your formation documents.
Step 4: If a Regulator Has Contacted You
The first week
A letter or subpoena may carry its own dates. Bring it to every consultation and ask each attorney the same three things: what the document requires, by when, and what he or she would do in the first week. Compare the answers side by side. A concrete sequence, such as preserving documents, identifying custodians, and contacting the staff to discuss scope, gives you a plan you can evaluate. A response that dwells only on how serious SEC matters are leaves your document unaddressed, so ask for the first-week sequence before you decide.
Where the matter could be heard
The forum for an enforcement action shapes strategy from the start. In SEC v. Jarkesy, the Supreme Court held that “when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial” (SEC v. Jarkesy). Ask the attorney how that decision bears on a matter like yours and whether it changes what he or she would do now. You are not testing whether the attorney can recite the case; you are listening for whether the attorney connects the forum to concrete choices in your response.
Whom the attorney represents
When a regulator contacts a company, the company’s counsel represents the company. An officer or employee asked to testify should find out, before the testimony, whether that counsel represents him or her personally, and what happens if the company’s interests and the individual’s diverge. If there is any sign of a criminal investigation alongside the civil one, the choice of counsel changes, and you should ask directly about experience in that setting before engaging anyone.
Experience you can describe, not just claim
Ask which stages of SEC matters the attorney has personally handled, such as document requests, testimony, written submissions to the staff, or litigation, and in what role. Then ask about the most recent one. Self-reported experience is not a record, but specific, recent, stage-by-stage answers are harder to inflate than a general claim of “extensive SEC experience.”
Bring: the letter or subpoena with the date you received it, and a list of people who may hold relevant documents.
Step 5: If You Advise Investors for Compensation
Adviser work is continuing. You are hiring someone to set up registration and then to keep you in compliance as rules and your business change. That makes three things more important than in a one-time transaction:
- Continuity. Who will answer questions next year, and what happens if that person leaves the firm?
- Responsiveness. How quickly does the attorney turn around a compliance question, and is that in writing?
- Scope. Does the engagement include periodic review of your policies and filings, or only questions you raise?
Ask for an example of how the attorney would handle a change in your business, such as adding a new type of client or service, from the first question to the updated filing. A step-by-step account points to a working process; an answer that ends at the filing points to registration sold as a one-time product, and deserves a follow-up question.
Bring: a description of your business, your clients, and your current registration status.
Step 6: If You Are an Investor With a Claim
Who represents investors, and the free option
FINRA’s own guidance states: “You should consider hiring an attorney to represent you during FINRA arbitration or mediation proceedings. Even if you choose not to hire an attorney, brokerage firms are generally represented by an attorney.” FINRA staff “cannot endorse or recommend a specific attorney to you,” and FINRA lists law school securities arbitration clinics that, “under the supervision of attorneys,” represent qualified parties “who lack the means to hire an attorney and who have smaller claims” (FINRA, Find an Attorney). If your claim and income may fit a clinic’s limits, ask the clinic before deciding you do not qualify. A clinic is a real alternative, not a fallback.
An admission question specific to arbitration
The same FINRA page warns that “in some jurisdictions, an out-of-state attorney cannot represent a client in arbitration.” If the attorney you are considering is licensed in a different state from the one where the arbitration would be held, ask how he or she confirmed the right to appear there. It is a short question that can change who is able to represent you.
Checking what an attorney says about past awards
FINRA’s Arbitration Awards Online lets anyone search awards “by Case ID, Keyword, Name, Date of Award” and other fields, free of charge (FINRA Arbitration Awards Online). Ask the attorney for case numbers of matters that went to an award and what his or her role was in each, then look them up. The award confirms that the case existed and what the panel decided. It may not show who did the work, it misses cases that settled, and FINRA notes that the database “may not reflect whether a court has confirmed, modified, or vacated an award.” Use it to check the attorney’s description, not to score the attorney.
Two kinds of deadline
For a private lawsuit in court, 28 U.S.C. § 1658(b) allows a securities fraud claim to be brought “not later than the earlier of (1) 2 years after the discovery of the facts constituting the violation; or (2) 5 years after such violation” (28 U.S.C. § 1658). The two triggering events are discovery of the facts and the violation itself, and whichever deadline arrives first controls. FINRA arbitration may have its own time rules. Ask each attorney which limits apply in each forum, measured from which event, and how much time you have left.
What to settle before signing
- Whether your account agreement sends the dispute to arbitration, and before which forum. The answer should come from the agreement itself, so bring it to the meeting.
- How the attorney is paid if the claim recovers nothing, and what costs you might owe.
- Who will present the case at the hearing.
Bring: your account agreement, statements for the period in question, and every communication with the broker.
Step 7: Compare Fee Proposals by What They Cover
Securities engagements can be priced by the hour, by a fixed fee for a defined task, or, for some investor claims, on contingency. Ask each attorney which model he or she proposes, then compare what is inside it:
| Route | Coverage to compare |
|---|---|
| Raising capital | offering documents, investor questions, Form D, state notices, a second raise |
| Regulatory contact | the first response only, or testimony, written submissions, and later stages |
| Adviser compliance | initial registration only, or periodic review and ongoing questions |
| Investor claim | the hearing, expert costs, and what happens to costs if the claim fails |
For every route, ask who pays for experts, document hosting, filing fees, and travel, and whether you must approve them first. Get the scope in writing, then compare it against what the attorney said in the meeting.
Matching Counsel to Your Route
| If you are | The attorney you want can show you |
|---|---|
| Raising capital | operating rules for your marketing and investor screening, a named person tracking the Form D date |
| Contacted by a regulator | a first-week plan built from your actual document, and a clear answer on whom the engagement covers |
| Running an advisory business | a continuity plan and a process for handling changes in your business |
| Pursuing an investor claim | a reading of your account agreement, a forum and deadline analysis, and awards you can look up |
Where two attorneys place your plan on different routes, settle it on the table itself: ask each which row your facts belong in, and what you would have to do differently under the other row’s rules. The route you choose decides the steps that follow, so it is worth settling before you sign.
Legal disclaimer: This guide provides general information about selecting a securities attorney and about rules that bear on that choice. It is not legal advice. Securities rules and dollar limits change; confirm current requirements with a licensed attorney.