Can I Have a Lawyer Present During SEC Testimony?

When the Securities and Exchange Commission requests your testimony, everything you thought you knew about legal protection gets turned upside down. At Spodek Law Group, we understand the fear that comes with receiving an SEC subpoena or voluntary testimony request. The question keeping you up at night is simple: Can I have a lawyer there with me? The answer is yes. But that yes comes with conditions that most people never learn about until it is far too late.

Your right to counsel during SEC testimony is guaranteed under federal rules. Any person compelled to appear before the SEC, or who appears voluntarily, may be accompanied, represented, and advised by legal counsel. That language sounds protective. It sounds like what you would expect from any legal proceeding in America. Todd Spodek and our team at Spodek Law Group have represented clients through SEC investigations for years, and we can tell you that the reality of attorney representation during SEC testimony is nothing like what most people imagine.

The short answer gives you comfort. Yes, bring your lawyer. But the long answer should concern you deeply because the role your attorney plays during SEC testimony is fundamentally different from any other legal setting you have ever experienced.

Yes You Can Have a Lawyer - But Not the Lawyer You Think

Heres the thing that changes everything. Your attorney sits there in an "advisory capacity only." That's the official term the SEC uses, and it's not just bureaucratic language. Advisory capacity means your lawyer can take notes. Your lawyer can talk to you during breaks. Your lawyer can ask a few clarifying questions at the end of your testimony. But that's basically it.

Your lawyer cannot object to questions. Think about that for a second. In a regular civil deposition, your attorney can say "objection, that question is improper," and in many cases instruct you not to answer. They can fight about scope. They can protect you from unfair questioning. In SEC testimony, none of that works. There is no judge present to rule on objections. The SEC staff controls the record completely - they decide when to go on the record and when to go off.

So your sitting in a conference room across from SEC enforcement attorneys who have been investigating your case for months or even years. They know exactly what questions to ask. They know what answers their looking for. And your lawyer sits next to you, unable to do anything except watch and take notes. The normal rules of evidence dont apply. SEC staff can ask you anything they want, for as long as they want, in any manner they want.

Lets be direct about what this means. Your attorney cannot object to questions during SEC testimony. Your attorney cannot instruct you not to answer. Your attorney cannot stop improper questioning or fishing expeditions. Your attorney watches while you testify, and the most they can do is ask you clarifying questions after the SEC is done with you.

What Your Attorney Actualy Cannot Do During SEC Testimony

The limitations are more extensive then most people realize. Heres a breakdown of what your lawyer cannot do during your SEC testimony:

First, no objections. In court or a regular deposition, objections preserve issues for later and can stop problematic lines of questioning. In SEC testimony, there is nobody to object to. The SEC staff runs the proceeding. Your attorney's objections would go nowhere becuase there is no judge, no arbitrator, no neutral party to rule on wheather a question is proper.

Second, no instructions not to answer. In other legal settings, your attorney might say "I'm instructing my client not to answer that question." That instruction carries weight. In SEC testimony, such an instruction has no procedural force. You can choose not to answer - invoking your Fifth Amendment rights - but your lawyer cant instruct you to refuse on procedural grounds.

Third, no control over the record. Here's where things get particularly troubling. In a deposition, you or your attorney can request to go off the record for a break or a consultation. The court reporter tipically complies. In SEC testimony, the reporter will not go off the record at your direction or your counsels direction. The SEC staff decides when breaks happen and when the record pauses. Your attorney can request a break, but the SEC can refuse or limit the time.

Fourth, no ability to stop the proceeding. If SEC staff are being abusive, aggressive, or asking clearly improper questions, your attorney cannot walk you out. Well, technically you can leave if it's voluntary testimony. But leaving voluntary testimony often triggers a subpoena for compelled testimony, which removes your option to leave.

Think about what this adds up to. Your attorney is physically present but procedurally powerless. They sit there as a witness to your testimony rather then an active defender of your rights.

Form 1662 and the Rights You Think You Have

Before your testimony, the SEC provides you with something called Form 1662. The full title is "Supplemental Information for Persons Requested to Supply Information Voluntarily or Directed to Supply Information Pursuant to a Commission Subpoena." This form is supposed to inform you of your rights.

Heres what the form actualy says. It tells you that you have the right to be accompanied by counsel. It tells you that for voluntary testimony, you need not answer any question and may leave whenever you wish. It tells you that information you provide may be used against you in federal court, administrative proceedings, criminal prosecution, or any enforcement action.

Read that again. Criminal prosecution. The form explicity warns you that your SEC testimony can be used against you criminaly. Most people sign the Form 1662 acknowledgment without understanding that theyve just documented there awareness of rights they dont actualy understand.

The form exists to protect the SEC - not you. Its a paper trail documenting that they told you about your rights before you waived them. It dosent exist to help you exercise those rights effectivly. And heres the kicker: most people focus on the counsel right and the voluntary nature, missing the criminal prosecution warning entirely.

The SEC is not required to tell you about parallel criminal investigations. Form 1662 mentions criminal prosecution as a posibility, but it dosent tell you wheather a criminal investigation is already underway. You could be testifying to SEC staff while DOJ prosecutors are building a criminal case in the next building, and the SEC has no obligation to mention this.

The Criminal Pipeline Nobody Told You About

This is were most people lose everything. The SEC is a civil enforcement agency. They cannot charge you with crimes. Zero criminal authority. But they have every authority to collect your testimony, gather your documents, and hand everything to the Department of Justice for prosecution.

The mechanism that destroys most defendants is something called an "Access Request." The DOJ can file an Access Request to obtain copies of documents and information the SEC collected during its investigation. Everything you voluntarily provided - your testimony, your documents, your explanations, your attempts to cooperate - flows directly to criminal prosecutors without any additional subpoena.

Let that sink in. Through the Access Request system, the SEC provides everything to DOJ - the transcript, the documents you produced, the investigative notes. Your civil testimony walks right into your criminal prosecution.

About 27% of SEC cases have a criminal component. More then one in four. Recent research shows an average SEC enforcement action involves 0.56 criminal filings. Those numbers might seem abstract until your the one sitting in the testimony room, answering questions that you think are for a civil investigation, while actualy building the evidence for your own criminal indictment.

The SEC investigator wants to build the strongest possible case. If that case has criminal potential, they want the DOJ to prosecute because it makes their enforcement numbers look better. So your cooperating with an agency whos success is measured partly by how many of there cases result in criminal charges.

By the time someone tells you the DOJ has "taken an interest" in your case, you've already given them what they need. The Access Request happened after you testified. You cant unring that bell.

The Fifth Amendment Trap

So your thinking just take the Fifth, right? Refuse to answer, invoke your constitutional right against self-incrimination, and protect yourself from the criminal pipeline. Thats what the Fifth Amendment is for.

Heres the trap. In criminal proceedings, the court must instruct the jury that it cannot draw an inference of guilt from your refusal to testify. That's a fundamental constitutional protection. The prosecution can't stand up and say "he wouldn't answer, so he must be guilty."

But in civil cases - including SEC investigations - the Fifth Amendment does not forbid adverse inferences. The court can, and will, assume that the testimony you are withholding would have been unfavorable to you. Your silence becomes evidence of guilt in the civil case.

So your choices are: Cooperate with the SEC and potentially hand prosecutors the evidence they need to convict you criminally. Or invoke the Fifth, protect yourself from criminal prosecution, but get destroyed in the civil case through adverse inference.

Everything you say can be shared with criminal prosecutors through Access Requests. But everything you dont say can be held against you in the civil proceeding. That's the dilemma nobody explains until you're already in it.

A party facing both criminal and civil proceedings often faces this impossible choice. Assert the privilege in response to civil discovery, triggering an adverse inference of guilt. Or cooperate with civil discovery, waiving the Fifth Amendment privilege, and letting prosecutors use your civil testimony in the criminal case.

Strategic Preparation That Actually Protects You

So what actualy works? How do you navigate testimony where your lawyer can't object, your words become criminal evidence, and your silence becomes civil guilt?

The answer isnt to avoid cooperating entirely. In FY 2024, 75% of public-company defendants had cooperation noted favorably by the SEC. Cooperation genuinely matters. The SEC obtained record-setting $8.2 billion in financial remedies, but they also recognized cooperation in three-quarters of cases. Being adversarial from the start often escalates enforcement and increases criminal referral likelihood.

Heres the difference. Strategic cooperation through experienced counsel is completly different from naive cooperation through general practice attorneys. Strategic cooperation means:

Understanding before you testify wheather a parallel criminal investigation exists or is likely. Your attorney should be making inquiries, assessing risk factors, and preparing you for both possibilities.

Preparing exhaustivly for every question the SEC might ask. You shouldn't be figuring out your answers in the testimony room. Every response should be carefully considered in advance, with your attorney, understanding both the civil and criminal implications.

Knowing exactly when and how to invoke the Fifth Amendment if necessary. This isnt an all-or-nothing decision. You can invoke on specific questions while answering others. But you need counsel who understands the strategic implications of each choice.

Having representation that understands both securities enforcement and criminal defense. Most securities lawyers have never defended a criminal case. Most criminal lawyers dont understand SEC procedure. You need someone who operates in both worlds.

Why Spodek Law Group Handles SEC Testimony Defense Differently

Most firms treat SEC investigations as pure regulatory matters. They focus on document production, negotiating with enforcement staff, and maybe preparing you for testimony as an afterthought. But they dont integrate criminal defense thinking from day one.

At Spodek Law Group, we understand that your SEC testimony could become criminal evidence. We prepare every client for that reality. Todd Spodek has handled federal securities matters that other attorneys wouldnt touch, cases were the line between civil penalty and criminal prosecution was razor thin.

When you work with us before SEC testimony, you get preparation that accounts for:

The Access Request pipeline - we assume DOJ may request your testimony and prepare you accordingly.

Fifth Amendment strategy - we analyze each area of questioning and develop a coherent approach to privilege invocation that protects you criminaly without unnecessarily destroying your civil position.

Parallel investigation awareness - we make inquiries and assess wheather criminal prosecutors are already involved.

Testimony technique - not just what to say, but how to say it, how to handle aggressive questioning, and how to recognize when a question is designed to trap you.

You have the right to have counsel present during SEC testimony. But that right is meaningless if your counsel dosent understand the criminal dimension, cant prepare you for the Access Request reality, and sits there powerless while you build the case against yourself.

Dont walk into SEC testimony thinking your lawyer's presence makes you safe. Call Spodek Law Group at 212-300-5196 before your testimony date. We offer consultations for anyone facing SEC investigations, and we can explain exactly what you're facing and how to protect yourself.

Your future depends on what happens in that testimony room. Make sure you walk in prepared.