Wilson Elser Moskowitz Edelman & Dicker and one of its prominent partners are at loggerheads as the firm attempts to withdraw from a controversial case in which the partner and one of the firm’s clients are under investigation for criminal contempt.
Longtime partner Richard Lerner, cochair of the appellate practice at Wilson Elser, and the client, Long Island attorney Frederick Oberlander, claim the firm went around both their backs to get out of a tangled case. The two are attempting to keep Lerner on the case, even if that means Lerner has to leave the firm where he has practiced since 1989.
The underlying case involves a convicted racketeer, real estate developer Felix Sater, whose file was sealed 14-years ago under a cooperation agreement, and Oberlander’s actions in revealing the identity of the protected felon.
Oberlander, who is representing the plaintiff in a civil racketeering case against a development company in which Sater was a partner, obtained and attached to his complaint sealed records showing that the “John Doe” who pleaded guilty to racketeering in 1998 was Sater. He argued that Sater’s ability to conceal his criminal history— with the help of the government—enabled him to entice unwitting investors who were defrauded of $500 million.
After Oberlander was gagged by a number of courts, Lerner undertook his representation in various forums, including the U.S. Supreme Court. Sater has asked a federal judge to hold both Oberlander and Lerner in civil contempt, apparently alleging that they are responsible for media leaks, and Eastern District Judge Brian Cogan (See Profile) has directed the U.S. attorney to investigate both Lerner and Oberlander for criminal contempt.
The Wilson Elser controversy erupted after the firm moved to withdraw from the Supreme Court case, where Oberlander is seeking certiorari to appeal on First Amendment grounds a gag order issued by the U.S. Court of Appeals for the Second Circuit.
Wilson Elser contends that Oberlander is not Lerner’s client, but the firm’s, and that the firm as a whole is attorney of record, with standing to make a motion for withdrawal. The Supreme Court rejected that argument and denied the withdrawal motion.
However, Wilson Elser brought a separate withdrawal motion before Cogan, who granted it after concluding that Lerner joined in the motion to withdraw—which Lerner claims is not true. Cogan said Lerner is conflicted since he is a target of the same contempt charge and investigation as Oberlander.
In a document filed late yesterday, Oberlander stressed that no one at Wilson Elser other than Lerner is authorized to speak on his behalf. He urged Cogan to make clear that “no matter what, a client has the absolute, indefeasible right to forbid any attorney to speak in court in his behalf and to revoke any prior authorization to the contrary.”
Oberlander alleges that Wilson Elser’s general counsel, Thomas Hyland, partner Thomas Leghorn, who is cochair of the firm’s lawyers liability practice, and an associate, Colleen Middleton, have purported to represent him, even after he sent the firm a series of letters forbidding anyone other than Lerner from appearing on his behalf.
“Were this court to hold…that an attorney like Hyland may force feed upon an unwilling client an unwanted advocate to appear and speak for him in court—like a farmer may force-feed corn down the gullet of a goose—showing no more regard for the client than the farmer shows for the goose, it would upend the fundamental tenet of American jurisprudence, [that] every client is free to choose who may speak for him in court and who may not,” Oberlander said.
He also claims that Hyland, and Leghorn in acting on Hyland’s direction, put themselves in a compromising and absurd position by purporting to supervise Lerner in the handling of his case. He argues that if Lerner is guilty of contempt, Hyland and Leghorn have now assumed that guilt.
“If what [Hyland and Leghorn say] is true, we have a first, suicide by memorandum,” Oberlander said. “To state in papers that you directly supervised the actions of a subordinate, knowing that the subordinate is under criminal investigation by the United States Attorney for some of those very same actions is suicidal, because if false, you’ve subjected yourself to charges of sanctions, fraud, obstruction and contempt, and if true, you’ve slit your own throat and the firm’s throat.”
Hyland and Leghorn did not return calls for comment. Middleton declined to comment.
In a declaration attached to Oberlander’s motion, Lerner said he never moved to withdraw from the case and that no one at the firm moved on his behalf. He denied that there is any conflict in representing Oberlander and maintains that even if there were, the client has given his “informed consent” to remain on the case.
“Mr. Oberlander has communicated to me and to others in my firm on numerous occasions his emphatic insistence that he would not consent to the substitution of any other attorney in my firm for me as attorney of record,” Lerner said in the declaration. “I wish to state with clarity that I reasonably believe I can represent Mr. Oberlander on all matters involved.”
Oberlander said in the Sept. 25 memorandum that Lerner “gave me notice of his likely imminent departure from the firm,” and said he plans to stay with Lerner wherever he ends up.
It is unclear from the pleadings if and under what terms Lerner— who is touted on the Wilson Elser website as “an exceptional writer and tenacious advocate” and “one of the most active appellate attorneys in New York”—will leave the firm.
Lerner, who declined comment, has retained an employment law expert, Jonathan Sack of Sack & Sack in Manhattan. Sack declined to comment.
John Caher is a reporter for the New York Law Journal, a Legal affiliate.