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Paul Weiss Sanctions Shine Light on ‘Tidal Wave’ of Incivility

May 14, 2021, 8:33 PM

A terse exchange during a Zoom deposition that ended in sanctions probably won’t tarnish the reputation of Paul, Weiss, Rifkind, Wharton & Garrison, a firm with deep ties to the Biden administration.

But the incident is a rare example of a prestigious firm finding itself in hot water for unprofessional behavior. It also has become an example of judges cracking down on incivility—a trend that ethics lawyers say has sharply increased in recent years.

“Civility is always important, but the emphasis on it seems to come in waves, and I think we are in a tidal wave right now,” said Jan Jacobowitz, a legal ethics consultant and former director of the professional responsibility and ethics program at the University of Miami’s School of Law.

The incident also appears to have cost former partner Alex Oh her position as chief of enforcement at the U.S. Securities Exchange Commission.

Oh resigned from the SEC last month, just days after accepting the job as the agency’s enforcement chief. Her resignation came after a judge indicated he’d sanction her and Paul Weiss for describing opposing counsel during a Zoom deposition as “unhinged,” and “agitated and aggressive,” and for demonstrating “a lack of respect.”

The deposition occurred in February in a case filed nearly 20 years ago by plaintiffs alleging they or their decedents were detained, tortured, sexually assaulted, and killed by security guards contracted by Exxon Mobil Corp. to guard a natural gas plant in Indonesia in 2000.

Tensions between Oh and her opposing counsel, Kit Pierson, at plaintiff’s firm Cohen Milstein, became clear almost immediately.

The witness, an in-house lawyer at Exxon Mobil, appeared to the plaintiff’s counsel to obstruct the deposition by referring to an 85-page document prepared with the help of Paul Weiss lawyers. Oh said the extensive notes were needed because some of the questions the witness answered related to a time period before he worked at Exxon, according to court documents.

After the plaintiff’s counsel sought sanctions for obstructing the deposition, Paul Weiss countered by seeking sanctions of its own. The firm’s request described the opposing lawyer’s behavior as “unhinged,” and Oh said she perceived his body language over video as “showing anger and irritation.” The memo noted Oh had been wearing noise-canceling headphones, which may have made him sound louder than a video recording of the event.

The judge, Royce Lamberth, said the descriptions of Pierson didn’t match what he saw on a video of the deposition. He sanctioned Oh and Paul Weiss for making their claims without reviewing the tapes. While Paul Weiss was ordered to pay for the work done to file and respond to the sanctions requests, the judge did not impose further monetary sanctions. He noted Oh’s apology, which acknowledged her role in “the breakdown of civility.”

Lawyers for Paul Weiss and Oh did not respond to requests for comment.

Civility Breakdown

Tensions can flare in depositions, and that can lead to attorney discipline proceedings.

A Florida attorney in April was admonished after three complaints were filed against him, including for repeatedly insisting a witness was lying during a deposition. An Illinois attorney, Charles Cohn, in February was suspended for six months after calling opposing counsel a “bitch” during a 2016 deposition.

“A man who insults on a daily basis everybody he does business with has now been elected President of the United States,” Cohn said during the deposition, according to an Illinois bar filing. “The standards have changed. I’ll say what I want.”

Trisha Rich, co-chair of Holland & Knight’s legal profession team, which represents lawyers, law firms, and in-house counsel, said there is a perception in the legal profession that incivility has become a greater problem in the past few years.

“We’ve seen sharp increases in recent years of courts punishing lawyers for uncivil behavior,” she said. “There is a sense, whether right or wrong, that incivility in the law has gotten a little bit out of control, and state supreme courts are taking notice—and so are bar associations.”

Oh likely will not face further discipline in the Paul Weiss case, said Michael Frisch, ethics counsel at Georgetown University Law Center. Repeated incivility or personal insults based on someone’s race or gender are more likely to result in bar discipline, he said.

“This is the kind of thing a lot of judges would let pass with a verbal warning of some sort,” Frisch said of Oh’s case. “My experience with Judge Lamberth is he is very interested in appropriate lawyer behavior and also not shy about expressing his opinions in that regard.”

Frisch added that the behavior was, in general, not a “good marketing tool.” But he said some clients are drawn to lawyers they think will push the limits.

“A lot of times when lawyers get negative publicity for being an aggressive, zealous advocate, it can have the opposite effect,” he said. “It is, in fact, marketing that some potential clients will find attractive.”

To contact the reporter on this story: Roy Strom in Chicago at rstrom@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; John Hughes at jhughes@bloombergindustry.com

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