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Bon mots

"You can observe a lot just by watching." Yogi Berra

"We do not distain to borrow wit or wisdom from any man who is capable of lending us either." Henry Fielding, Tom Jones

"In our complex society the accountant's certificate and the lawyer's opinion can be instruments for inflicting pecuniary loss more potent than the chisel or the crowbar." United States v. Benjamin, 328 F.2d 854, 862 (2d Cir. 1964)

Barred Lawyer's Motion For Reconsideration and Stay Pending Appeal Denied

Steven Altman, Esq., Exchange Act Rel. 63665, January 6, 2011

In a previous order the Commission barred Altman from appearing or practicing before the Commission. It found that he engaged in unethical and improper conduct in connection with his representation of a witness in a Commission administrative proceeding.

Altman moved for reconsideration of that order. Altman's motion runs afoul of the truism that such a motion may not be used to reiterate arguments already made or authority previously available. In denying the motion the Commission found his argument that the ALJ's nine month suspension should have been adopted by the Commission meritless as once it accepts an appeal the ALJ's initial decision ceases to have any effect and the Commission was free to decide a sanction de novo.

The Commission also denied Altman's motion for a stay of the sanctions pending his appeal of the Commission's order. It based its denial on the egregiousness of his conduct. It also noted that on appeal courts of review are very deferential to the Commission's factual findings. In evaluating stays pending appeal the Commission uses a four part test: 1) likelihood of success on appeal; 2) likelihood of irreparable by the party seeking the stay; 3) whether any third party will suffer substantial harm; and 4) whether the stay is in the public interest.

Thus, practitioners should note that when an ALJ issues an initial decision with something less than the ultimate sanction an appeal is not risk free – the ALJ's proposed sanction is often increased by the Commission on appeal as was done here.