Yogi Berra’s famous quote seems like it was written for SEC Enforcement Division Director Robert Khuzami, and what has become his all too frequent outcry regarding lawyers who practice before the SEC.  He claims that attorney misconduct is occurring frequently enough that he has to raise these issues once again.  Khuzami claims that problematic attorney misconduct includes: multiple representation in a single case; delayed document production until the eleventh hour of a case; internal investigations that are more advocacy than investigation; and witness coaching. 

Khuzami noted that the SEC can address this perceived misconduct three ways: (1) the attorneys can be charged under the federal securities laws; (2) the lawyers can be referred to administrative proceedings and lose their ability to practice before the SEC; and (3) referral to the DOJ of attorneys who engage in perjury or obstruction. 

Whether the problems with lawyers are real or perceived, something has to give.  First and foremost, lawyers have rules of ethics by which they must conduct themselves.  Failure to do so could result in censure or worse from their licensing bar.  At the same time, however, those rules require lawyers to be zealous aadvocates.  The SEC has to respect zealous advocacy, and not expect that a lawyer is simply going to lead a flock of sheep to slaughter.  It is this balance between advocacy and ethics for which lawyers who practice before the SEC, not the SEC itself have to be gatekeepers.  If not, than do not be surprised if you are subject to the one of three options laid out above.