Reciprocal Discipline For Violations of Rule 1.9

The District of Columbia Circuit has imposed reciprocal discipline on Larry Klayman for violations of Rule 1.9. Klayman, who at one time worked at Judicial Watch, represented clients who were adverse to Judicial Watch. The opinion sets forth the facts in this fashion:

“Larry Klayman founded Judicial Watch in 1994 and served as its general counsel until he left in 2003. Since then, he has worked as “a public interest attorney and advocate.” Br. 13.

Following the filing of a complaint with the District of Columbia Bar in 2013, the Bar’s Hearing Committee Number Nine concluded that Mr. Klayman violated Rules 8.4(d) and 1.9 of the District of Columbia Rules of Professional Conduct.

See Report and Recommendation, In re Klayman, No. 13-BD-084, slip op. at 2 (D.C. Bd. of Prof. Resp. Hearing Comm. June 19, 2017). Rule 1.9 provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.” D.C. Rule of Professional Conduct 1.9. According to the comments to Rule 1.9, the relevant “matter” is not limited to litigation: “[w]hen a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited.” Id. The D.C. Bar complaint against Mr. Klayman focused on his representation of three clients in suits against his former employer, Judicial Watch.

The first client, Sandra Cobas, served as director of Judicial Watch’s Miami Regional Office. While there, Cobas alleged that she faced a hostile work environment, and Mr. Klayman, as general counsel, advised Judicial Watch about her complaints. After ending her employment with Judicial Watch, Cobas filed suit against the organization in Florida state court. The Florida court dismissed her complaint, calling it “silly and vindictive.” In re Klayman, 228 A.3d 713, 716 (D.C. 2020) (internal quotation marks omitted). Then, after Mr. Klayman left Judicial Watch and without seeking its consent, he entered an appearance on Cobas’s behalf and filed a motion asking the court to vacate its order of dismissal. When the motion was denied, Mr. Klayman initiated and briefed an appeal. The appellate court affirmed the dismissal.

The second client was Louise Benson, from whom Mr. Klayman, while serving as Judicial Watch’s chairman and general counsel, solicited a commitment to donate $50,000 for a fund to purchase a building. She made an initial payment of $15,000, but Judicial Watch ultimately did not purchase a building. Years later, after Mr. Klayman had left Judicial Watch, Benson sued the organization, seeking the return of her donation. She was initially represented by another attorney, but Mr. Klayman later entered an appearance as co-counsel, again without seeking consent from Judicial Watch. Judicial Watch asked Mr. Klayman to withdraw, pointing out that he had “organized the fundraising effort” and that “Benson had identified him as a fact witness.” Id. When Mr. Klayman failed to withdraw, Judicial Watch moved to disqualify him, but the motion was never resolved because the parties agreed to dismiss the case.

Last is Peter Paul. Judicial Watch represented Paul with respect to several legal issues, including an investigation and potential litigation arising from Paul’s fundraising activities during his campaign for the New York State Senate. On behalf of Judicial Watch, Mr. Klayman prepared the representation agreement and authorized its signing as well as a subsequent modification. Judicial Watch lawyers later represented Paul in a civil lawsuit in California state court. After Mr. Klayman left Judicial Watch, the organization’s lawyers withdrew from the representation. Paul then sued Judicial Watch in the United States District Court for the District of Columbia, alleging that the organization’s lawyers had breached the representation agreement. Although Paul was initially represented by other counsel, Mr. Klayman later entered an appearance—again without seeking Judicial Watch’s consent.

Judicial Watch moved to disqualify Mr. Klayman, and the district court, then-Chief Judge Royce Lamberth, granted the motion. Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 27 (D.D.C. 2008). He first concluded that “it [wa]s clear that Mr. Klayman’s representation of Mr. Paul” was an “unambiguous violation” of Rule 1.9. Id. at 21. The representation, Judge Lamberth explained, was “the very type of `changing of sides in the matter’ forbidden by Rule 1.9.” Id. (quoting D.C. Rule of Professional Conduct 1.9). And although “not unsympathetic” to the prejudice that Paul might suffer due to Mr. Klayman’s disqualification, Judge Lamberth explained that he “simply [could not] condone such a flagrant violation of a Rule of Professional Conduct essential to the proper functioning of our system of justice.” Id. at 27.

Following a hearing, Hearing Committee Number Nine found that “Mr. Klayman violated Rule 1.9 (or its Florida equivalent) in all three” representations. In re Klayman, 228 A.3d at 717. The Hearing Committee also found that Mr. Klayman’s representation of Paul violated Rule 8.4(d), which prohibits lawyers from “[e]ngag[ing] in conduct that seriously interferes with the administration of justice.” Lastly, it found that Mr. Klayman gave false testimony before the Hearing Committee. The Committee recommended that Mr. Klayman “be suspended for ninety days, with reinstatement contingent upon a showing of his fitness to practice law.” Id.

The Board on Professional Responsibility agreed that Mr. Klayman had violated Rule 1.9 and recommended that he “be suspended for ninety days.” Id. The Board, however, “disagreed with the Hearing Committee’s finding that Disciplinary Counsel proved a violation of Rule 8.4(d),” as well as with its finding that Mr. Klayman had “provided false testimony,” and it rejected the Hearing Committee’s reinstatement condition. Id.

In the District of Columbia Court of Appeals, Mr. Klayman chose not to challenge the Board’s conclusion that he had violated Rule 1.9. See id. at 717 (“Before this court, neither Mr. Klayman nor Disciplinary Counsel takes issue with the finding that Mr. Klayman violated Rule 1.9 or its Florida equivalent.”). On June 11, 2020, the Court of Appeals accepted the Board’s findings; suspended Mr. Klayman for ninety days, effective July 11, 2020; and required that he complete a continuing legal education course on conflicts of interest as a condition of reinstatement.

Under Rule X of this court’s Rules of Disciplinary Enforcement, Mr. Klayman was obligated to “notify the Clerk of this Court in writing within ten days of such discipline”— his suspension by the D.C. Court of Appeals. D.C. Cir. Rules, App. II, Rule X. He failed to do so.

On July 24, this court received notice from the D.C. Court of Appeals of Mr. Klayman’s ninety-day suspension. See Certified Copy of Order, In re Klayman, No. 20-8511 (D.C. Cir. Aug. 4, 2020). Almost two weeks later, on August 4, we ordered Mr. Klayman to “show cause . . . why the imposition of identical discipline by this court would be unwarranted.” Order, In re Klayman, No. 20-8511 (D.C. Cir. Aug. 4, 2020). In response, Mr. Klayman filed the brief now before us. Mr. Klayman was reinstated to the District of Columbia Bar effective December 10, 2020….

Because Mr. Klayman has failed to carry his “burden of showing why the court should not impose reciprocal discipline,” In re Sibley, 564 F.3d at 1340, we shall impose a ninety-day suspension. Mr. Klayman protests that he “has already served a 90-day suspension period,” claiming that from August 12 to December 18, he made no appearances in the D.C. Circuit. Br. 15.

This argument rests on a flawed assumption: that our ninety-day suspension will apply nunc pro tunc to the date when the D.C. Court of Appeals imposed its suspension. Although we sometimes do impose reciprocal discipline retroactively, we do so only in limited situations, such as where the attorney, pursuant to Disciplinary Rule X, promptly notifies this court of the discipline imposed, and/or refrains from representing clients in this court while suspended before another court. Mr. Klayman did neither.

When asked at oral argument why he had failed to notify the court pursuant to Rule X, Mr. Klayman offered no coherent explanation. See Oral Arg. Tr. 10-12. In a self-styled “Supplement to Respondent’s Initial Brief,” filed just after oral argument, Mr. Klayman told us that “[t]he reason that he did not immediately inform” this court of his suspension “was because” his petitions for rehearing and rehearing en banc of his suspension “were pending [in the D.C. Court of Appeals] at the time and Mr. Klayman believed that he would be successful in obtaining a favorable ruling.” Supplement to Respondent’s Initial Br. 2. This is an astonishing argument. Rule X is crystal clear: “an attorney admitted to practice before this Court” who is “subjected to public discipline for professional misconduct. . . shall so notify the Clerk of this Court in writing within ten days of such discipline.” See Disciplinary Rule X (emphasis added). “Shall” means shall, and, unsurprisingly, the rule contains no exceptions for lawyers who think they might successfully challenge their discipline on appeal.

With respect to the second basis for considering imposing discipline retroactively—voluntary withdrawal from practice before this court—Mr. Klayman failed to withdraw from representing three clients until after we issued our order to show cause. See Motion to Withdraw as Counsel, Luhn v. Scott, No. 19-7146 (D.C. Cir. Aug. 10, 2020); Motion to Withdraw as Counsel, Lovelien v. United States, No. 19-5325 (D.C. Cir. Aug. 12, 2020); Motion to Withdraw as Counsel, Corsi v. Mueller,No. 19-5314 (D.C. Cir. Aug. 12, 2020). Indeed, Mr. Klayman failed to mention one of those cases in his brief, see Br. 15, and even filed a brief on behalf of one client two days after his D.C. suspension took effect, see Appellants’ Final Reply Br., Lovelien v. United States, No. 19-5325 (D.C. Cir. July 13, 2020).

For the foregoing reasons, Larry Klayman is suspended from practice before this court for ninety days, effective as of the date of this opinion and the accompanying order. Mr. Klayman is prohibited from holding himself out to be an attorney at law licensed to practice before the United States Court of Appeals for the District of Columbia Circuit during the suspension. In addition, pursuant to Disciplinary Rule II(d), this matter is referred to the Committee on Admissions and Grievances for recommendations about any further discipline warranted by Mr. Klayman’s failure to comply with Rule X.

So ordered.

Comment: should you have a question or concern about a legal ethics issue or matter, I am available to assist you. My email is ed@clintonlaw.net. We can be reached at 312-357-1515.

https://www.clintonlaw.net/legal-ethics.html