Alan Wolper already thought he had a good shot at overturning an SEC ruling that permanently barred his client, a financial adviser, from the industry. The SEC went further than its own judge had recommended, and Wolper led his argument by saying the commission had clearly misinterpreted a well-established definition of liability.

But following a Dec. 27, 2016, appeals court ruling that the process the SEC had used was unconstitutional, the defendant's case now feels like a slam-dunk.

This was a welcome development for industry lawyers who feel it offers a compelling defense against an aggressive SEC that uses a process said to deprive defendants of their due process rights. The use of administrative proceedings by the SEC, allowed by a provision in the Dodd-Frank Act, can be used more frequently. Or, the SEC can pursue a case in federal court, which guarantees due process rights for defendants.

Because judges overseeing administrative proceeding cases are hired by the SEC, some claim the agency has a home-court advantage. Differing rulings by two appeals courts on the constitutionality of the appointments of those judges has some lawyers anticipating the Supreme Court may take up the issue. When that may occur is unknown.

M. Norman Goldberger, a partner for Ballard Spahr LLP, also said he does not expect the Supreme Court to take action in the short-term, saying it was "highly unlikely" the case would be heard in the current term, meaning clarity on the issue appears more than a year away.

Regardless, lawyers expect an immediate effect on the SEC’s enforcement pipeline. Goldberger said the agency would likely avoid administrative proceedings in the 10th Circuit, which covers cases in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. It is possible the effect is even broader.