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Judge Faults Former SEC Enforcement Chief Over Conduct

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A federal judge has admonished former Securities and Exchange Commission enforcement chief Alex Oh for violating a federal rule in a legal spat over a deposition.

Senior Judge Royce Lamberth last month ordered Oh and several attorneys at Paul, Weiss, Rifkind, Wharton & Garrison, to show why they shouldn’t face sanctions for claiming in papers that opposing counsel, Cohen Milstein Sellers & Toll partner Kit Pierson, was aggressive and “unhinged” at a deposition without supporting those allegations.

The dispute has been linked to Oh’s abrupt exit from the SEC, as she left the agency only days after becoming the chief of its enforcement division soon after Lamberth’s order.

Lamberth said in Wednesday’s opinion that, despite filings from Paul Weiss and Oh opposing sanctions, he would admonish them, finding they “should have known better than to impugn another attorney’s character without reviewing the entire record.”

Paul Weiss chairman Brad Karp and an attorney for Oh did not immediately return requests for comment. In court filings, Oh and her former firm defended their conduct, stating that claims made about opposing counsel were made in “good faith.”

Details in Judge’s Opinion

In the 15-page opinion, Lamberth addressed discrepancies between Paul Weiss’ characterization of the opposing counsel’s conduct at the deposition and video of the questioning. The judge said that “returning to the video would have assisted defense counsel in providing an objective perspective on the deposition,” and failing to do so violated the rule.

“A reasonable attorney would have reviewed the deposition video before making serious allegations about another attorney’s professional conduct. Although defense counsel had access to the video, nothing in the record reflects that defense counsel took that simple step,” Lamberth wrote. 

He added that by citing the transcript and not the video in filings, the Paul Weiss attorneys “provided a misleading account of the deposition.”

However, Lamberth decided against referring the matter for disciplinary action or ordering monetary sanctions, noting Paul Weiss and Oh apologized to the court and he had already ordered the firm to pay opposing counsels’ attorney fees and costs related to the deposition.

Lamberth instead issued an “admonishment” against the lawyers, writing that he “cannot allow such misconduct to occur without at least rebuking counsel, especially when the misconduct created a substantial complication in resolving the cross-motions for sanctions.”

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Lamberth last week unsealed an opinion he issued in late April in which he granted sanctions against Exxon Mobil, which Paul Weiss is defending against human rights claims in a 20-year lawsuit. He found Oh, who led the defense of the Exxon Mobil witness during the deposition, appeared to have assisted the witness in reading prewritten answers that didn’t address the questions and Oh didn’t take action to prevent the witness’ misconduct.

royce lamberth Judge Royce Lamberth of District of Columbia’s federal district court. Credit: Diego M. Radzinschi / ALM

“The court implores counsel to conduct themselves in a manner befitting their profession. For the law is a noble profession,” Lamberth wrote, quoting a 1945 speech by Harrison Tweed as he became president of the New York City Bar Association. “But that only remains true when attorneys uphold their ethical obligations. Counsel should behave accordingly.”

Oh’s Apology

In filings submitted Friday, shortly after the opinion was unsealed, both Paul Weiss and Oh, represented by attorneys at Kellogg, Hansen, Todd, Figel & Frederick, apologized to Lamberth. 

However, each maintained that they made the allegations against their opposing counsel “in good faith,” with Oh filing a declaration outlining her recollection of the deposition.

“Regrettably, on this occasion, I allowed my strong convictions to get the better of me,” Oh said. “I believed in good faith that my approach to the deposition was appropriate, and that my characterizations of opposing counsel’s demeanor, based on my personal observations, were fair and supported by evidence. But I regret using the language in question and should have let myself be guided by a higher standard.

“I have learned from this experience that, when tempers have risen in litigation, greater care is required in the words that I choose,” Oh said in concluding her declaration.

In the Paul Weiss filing, attorneys wrote that the firm “has always striven to treat opposing counsel with respect and civility while zealously defending its clients’ interests, and it pledges to redouble its efforts to do so in this case.”

Plaintiffs’ counsel, including Cohen Milstein, on Monday pushed for the sanctions, calling the briefs from defense counsel “half-apologies.”

“Here, baseless defense accusations were made in an effort to respond aggressively and inappropriately to a meritorious sanctions motion,” the brief reads.

“The accusations falsely impugned the integrity of plaintiffs’ counsel and, in essence, counsel’s temperament to practice law. And they were made not in the heat of the moment, but in a pleading bearing the names of five Paul Weiss attorneys and Exxon’s in-house counsel, filed weeks after the deposition was completed and with a full opportunity to review both the transcript and the videotape. This was sanctionable conduct,” it explains.

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