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I Received an SEC Subpoena — What Should I Do Now?
The subpoena is not the beginning. By the time an SEC subpoena reaches a desk, a majority of the Commissioners have already voted to authorize a formal investigation, staff attorneys have already assembled a theory of violation, and the agency has already decided that your conduct (or conduct adjacent to yours) warrants the exercise of compulsory process. Most of the advice available on this subject reduces to a sequence: preserve documents, retain counsel, comply. That sequence is correct as far as it goes. An SEC subpoena is not a compliance exercise. It is the first moment in a strategic relationship with an agency that will, over the coming months or years, decide whether you face civil penalties, industry bars, disgorgement of profits, or a referral to the Department of Justice for criminal prosecution. Every decision made during that period compounds.
What the Formal Order Reveals
Before March 2025, the Director of the Division of Enforcement could issue formal orders of investigation without a single Commissioner reviewing the matter. Staff attorneys could open investigations and issue subpoenas on the Director’s authority alone. That authority was rescinded in a party-line vote on March 10, 2025, and the revised Enforcement Manual published in February 2026 formalized the change: staff must now obtain approval from the Office of the Director and then from a majority of the Commission before a formal order issues.
This matters for the recipient of a subpoena in a way that most commentary overlooks. Under the prior regime, a subpoena might have reflected a preliminary inquiry by a single enforcement attorney following a tip or complaint. Under the current structure, the subpoena you hold means the full Commission reviewed a memorandum describing the relevant conduct and the potential violations at issue, and voted to authorize the investigation. The threshold has risen. The signal has changed.
One is entitled to request a copy of the formal order. This should be done through counsel, because the formal order is often the first indication of the SEC’s legal theory. It will name the staff members authorized to issue subpoenas and compel testimony, and it will outline, however broadly, the suspected violations. Practitioners tend to read formal orders for what they omit as much as for what they contain. A formal order that references Section 10(b) of the Exchange Act and Rule 10b-5 tells you something different from one that references Sections 206(1) and 206(2) of the Advisers Act. The statutes absent from it indicate where the staff has not yet looked, or has chosen not to look.
Whether that absence is permanent is a question worth considering, though it is not one the formal order can answer.
We read them the way one reads an opening statement: as a map of intention, not of destination. The described conduct will sometimes indicate which transactions or communications prompted the investigation. But formal orders are drafted to be broad enough to encompass future investigative directions, and a theory articulated in the order may bear little resemblance to the theory that forms the basis of any eventual enforcement action. We have found, in practice, that the formal order is both more and less revealing than it appears, and that the temptation to over-read it is as dangerous as the temptation to ignore it.
The Fourteen-Day Objection Window
The compliance deadline printed on the subpoena is, in most cases, a starting position. Extensions are routine when requested through counsel before the deadline passes. The SEC staff understands that a thorough privilege review and document collection cannot be completed in two weeks.
The objection deadline is a different matter. Under SEC rules, objections to the scope or terms of a subpoena must be filed within fourteen days of service. This window is not negotiable in the way the production deadline is. Failure to preserve objection rights within those fourteen days constitutes a waiver. The production deadline may be thirty days away. The objection deadline is half that, and missing it forecloses the ability to challenge overbroad requests, assert privilege over specific categories, or resist demands that exceed the investigation’s scope as described in the formal order. But rights not preserved within fourteen days are rights that no longer exist.
Document Preservation and the Mechanics of Production
The obligation to preserve documents attaches the moment the subpoena is received, and in some cases earlier. If there was reason to anticipate the investigation (a voluntary request for documents, a phone call from SEC staff, a communication from a compliance officer), the duty may have already commenced. Destruction of documents after the duty attaches, even through routine deletion policies, can result in obstruction charges that carry consequences beyond the underlying investigation.
A litigation hold must go out at once. For a company, this means notifying the relevant departments and every custodian whose files might be responsive. For an individual, it means suspending any automatic deletion on email, messaging platforms, and cloud storage. The SEC’s requests tend to cover emails between specified dates, communications with specified individuals, trading records for specific securities, financial statements, internal memoranda, and text messages. The categories tend to be described in language capacious enough to capture material the staff has not yet identified.
The production itself is expensive and consumes time. A privilege review, depending on the volume, can occupy weeks. We approach productions in rolling batches, which the staff will accept if the arrangement is communicated early and in good faith. The first production should target the categories the staff considers most important, which is something experienced counsel can determine from the subpoena’s structure and from the formal order. There is a tendency among recipients to treat every category with equal urgency. That instinct is wrong. The SEC staff has priorities. Identifying those priorities early, through the language of the subpoena and through initial communications with the assigned staff attorney, allows for a production schedule that demonstrates cooperation while preserving time for the privilege review on less critical categories.
A subpoena is a relationship. The first production is the first conversation.
One point on which our approach differs from the standard sequence: we negotiate scope before beginning collection, not after. The standard method is to collect broadly, review for responsiveness and privilege, and then produce. We engage with staff early to narrow the categories, which reduces the volume of material subject to review and signals a cooperative posture from the outset. There are exceptions to this, though in practice those exceptions tend to confirm what the rule already implies. Staff attorneys are not, as a rule, hostile to narrowing. They are hostile to silence.
The Fifth Amendment Calculation
A subpoena ad testificandum compels testimony under oath. The question of whether to testify, and what protections apply, is among the most consequential decisions in the early stages of an investigation.
Individuals possess a Fifth Amendment right against compelled self-incrimination. That right can be asserted in response to SEC testimony subpoenas, question by question. But the assertion carries complications that are not always apparent. In a civil enforcement proceeding, an adverse inference can be drawn from the invocation of the privilege: the SEC, and later a court, may infer from silence that the answer would have been unfavorable. In Baxter v. Palmigiano, the Supreme Court held that the Fifth Amendment does not prohibit adverse inferences in civil proceedings, and the SEC has relied on that principle in enforcement actions since.
Corporations do not possess Fifth Amendment rights. A corporate officer acting as custodian of records (who, under Braswell v. United States, cannot invoke the privilege to resist producing corporate documents, even if those documents incriminate the officer personally) faces a specific problem when the officer is also a potential target in an individual capacity. The documents compelled in one role may become the evidentiary basis for charges in the other.
For professionals registered with FINRA, the calculus is harsher. FINRA Rule 8210 requires cooperation with regulatory inquiries. A registered representative who invokes the Fifth in response to a FINRA inquiry faces an automatic industry bar. Someone subject to parallel SEC and FINRA proceedings must weigh constitutional protection against professional survival.
Whether the investigation carries criminal exposure is the question that determines how the Fifth Amendment should be invoked, and that question is rarely answerable from the subpoena alone.
Cooperation Under the Current Administration
The SEC under Chairman Paul Atkins has signaled, through structural reform, that cooperation will be rewarded more consistently than it was under prior leadership. The revised Enforcement Manual, published in February 2026, codifies a framework for evaluating cooperation that is more transparent than any prior version.
The Wells process has been transformed. Under the previous administration, a Wells notice (the notification that staff intends to recommend enforcement action) was often followed by a compressed timeline of two weeks for a written submission, limited access to the investigative file, and uncertain prospects for a meeting with senior leadership. The current Manual requires four weeks for a Wells submission, mandates that staff disclose salient evidence to the recipient, and guarantees a post-submission meeting with leadership at the associate director level or above. These are not minor procedural adjustments. They represent a substantive shift in how the agency treats the period between investigation and enforcement.
What this means at the subpoena stage is that the cooperation posture adopted during document production and testimony carries forward. Staff evaluating whether to recommend enforcement action will consider whether the recipient was responsive to requests, cooperative in scheduling, and forthcoming with information. The cooperation framework accounts for self-reporting, remediation, and the quality of cooperation during the investigation. A recipient who obstructed or delayed during the subpoena phase will find less room to argue cooperation credit when a Wells notice arrives.
We approach cooperation, if we are being precise, not as a binary choice between resistance and capitulation but as a sequence of calibrated decisions. Full cooperation is not always in the client’s interest. Selective resistance on privilege grounds, or on scope, or on timing, is sometimes necessary and is recognized by the staff as legitimate advocacy. The line between legitimate resistance and obstruction is one that experienced counsel can identify: a challenge to the scope of a subpoena, filed within the fourteen-day window and supported by a specific argument about relevance or burden, is advocacy. Silence in the face of a production deadline is not.
The reduced enforcement activity under the current administration may provide some recipients a false sense of comfort. Actions against public companies declined by something like thirty percent in fiscal year 2025, and the new Director of Enforcement has stated that the quality of investigations matters more than volume. But a reduction in the total number of cases does not diminish the seriousness of the cases that are brought. The investigations that survive the new formal order process (the ones that a majority of Commissioners vote to authorize) carry, if anything, greater institutional commitment behind them. A subpoena issued under the current regime reflects a deliberate choice by the Commission.
When the Investigation Becomes Criminal
SEC investigations are civil proceedings. They can become criminal ones.
The June 2025 Policy Statement on criminal referrals, now incorporated into the Enforcement Manual, formalizes the factors staff must consider when evaluating whether to refer a matter to the Department of Justice: the degree of harm, the gain to the defendant, the presence of scienter, and whether criminal enforcement would provide additional investor protection. The referral decision requires approval at the associate director or unit chief level. The formalization of this process is, in one sense, a protection.
In another sense, it confirms that the pathway from civil investigation to criminal prosecution is a permanent feature of the system. If you are an individual who received a subpoena, and the underlying conduct could constitute criminal fraud, the Fifth Amendment calculation changes substantially. The adverse inference in the civil proceeding becomes less costly than the risk of providing testimony that the SEC can share with federal prosecutors. Every statement made to the SEC can be disclosed to the DOJ. The Enforcement Manual is explicit on this point.
What a First Consultation Addresses
The value of early counsel is not, or not principally, legal knowledge. It is orientation. A person who has received an SEC subpoena is, in our experience, processing two problems at the same time: the practical problem of what to do with the document, and the less defined problem of what the document means about their future. The first problem is solvable. The second is not, at least not at the outset, but it is the one that drives most of the early mistakes.
The most common error is delay. Not willful obstruction, but the paralysis that comes from not knowing whether to retain counsel, which counsel to retain, whether the matter is serious enough to warrant the expense, or whether responding without counsel might resolve things more quickly. The second most common error is calling the SEC staff attorney directly, without representation, to ask what the investigation concerns. The staff will answer, or will appear to answer, and what you say in that conversation becomes part of the record.
A consultation determines whether the subpoena identifies you as a target, a subject, or a witness (though the SEC does not always make this distinction clear). It determines whether the formal order suggests civil or criminal exposure. It assesses the scope of the document request against what exists in your records and identifies categories where privilege may apply. It establishes a timeline for the objection deadline and the production schedule. It provides an initial assessment of whether cooperation should be the default posture or whether more protective measures are warranted.
A first call costs nothing and assumes nothing; it is the beginning of a diagnosis. The questions that matter most are the ones that most people do not think to ask until the deadline has already begun to run.