In 2010, Fredrick Oberlander requested for Wilson Elser attorneys to represent him in cases regarding disclosure of sealed federal files. Oberlander’s public filing of sealed materials caused huge legal uproar, and quickly resulted in several sealing and gag orders. As such, Oberlander’s attorney, Richard Lerner, spent 18 months between 2010 and 2012 arguing that the files in question had been in the public record, and as such, had been used legally by Oberlander.
First, who is Richard Lerner? According to several sources, Lerner is a “lawsuit happy attorney”. He worked for Wilson Elser for 23 years, eventually becoming a partner at the firm, where the average annual compensation for partners was more than $600K. However, Lerner is also known for aggressive tactics and even defying the court in several instances, including while representing Oberlander. His conduct in the Bayrock suit was so harsh that even their original client in the suit, began to distance himself from them, eventually firing them as his counsel. Despite this, Lerner has continued to defend Oberlander and his disclosure of federally sealed documents.
However, the courts and even Lerner’s own law firm are clear that the filing of these documents was in violation of court orders. After conducting a four-day hearing in 2010, Judge Glasser concluded that Oberlander had intentionally flouted a court order by “unilaterally deciding” to disclose information from the sealed file. When he took the same case to the US Second Circuit, the judge came to the same conclusion, and appointed an Eastern District attorney to ensure that the two were complying with the rules of the court. Consequently, the US Eastern District opened an investigation into both Lerner and Oberlander for criminal contempt. Judge Cogan, the justice presiding over the proceedings in the Eastern District, ruled that Lerner and Oberlander had disrespected the authority of the court by releasing sealed documents without a proper court order. As such, the courts were of the clear opinion that the use of these sealed files was illegal and warranted further investigation of both Lerner and Oberlander.
As a result, Lerner’s firm requested to withdraw their legal counsel of Oberlander. It wanted nothing to do with Oberlander and the possible legal mess in which it could become embroiled. However, Lerner argued that the motion to withdraw could only be filed by himself – as he is the counsel on record. In response to this, Wilson Elser reportedly threatened Lerner with termination if he continued to represent Oberlander in this case. Clearly, Wilson Elser did not want the case on their record. Closer scrutiny of the case reveals the extent of Oberlander’s foul play.
Wilson Elser is a major US law firm, with 35 offices across the country. The firm was founded in 1944 and was among the first multinational law firms. Today, it employs over 800 attorneys and has a good reputation. In 2017, it was ranked in the top 200 American law firms by American Lawyer, and as number 53 by the National Law Journal. As a highly respected law firm, why would it so urgently demand that one of its partners withdraw from a case?
Like the judges on the Eastern District Circuit, Wilson Elser must have understood that this case was bad news. Oberlander broke several ethical codes when he released the sealed files as evidence. The documents would not be permitted in a court of law, thus diminishing Oberlander’s case. With both the legal system and his own firm against Lerner, why would he remain committed to representing Oberlander?
Perhaps the answer lies back in time, when Lerner and Oberlander worked as co-counsels on a similar whistleblower case in 2005. Did they build a close friendship or even working agreement during this time? Whatever the reason, Lerner’s defense of Oberlander is reported to have resulted in his parting ways with Wilson Elser in 2012.
Subsequently, Lerner opened his own legal practice: Richard E. Lerner, Attorney at Law. His complicity in the case may indicate his own ethical shortcomings. No matter the reason for his continued defense of Oberlander, neither of the two men can be trusted. One was pushed to leave a major law firm, after 23 years of practice, and both have been under ongoing investigations by federal prosecutors. Clearly, in the face of these facts, these are not attorneys that anyone in their right mind would want to represent them in a court of law.