In re: Larry Klayman ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 17, 2021 Decided March 26, 2021
No. 20-7110
IN RE: LARRY ELLIOTT KLAYMAN,
RESPONDENT
Larry Klayman argued the cause and filed the brief for
respondent.
Before: HENDERSON and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Suspended for ninety days by the
District of Columbia Court of Appeals, Larry Klayman, a
member of this court’s bar, seeks to avoid reciprocal discipline.
For the reasons set forth below, we impose a reciprocal ninety-
day suspension and refer this matter to the Committee on
Admissions and Grievances for recommendations on whether
further discipline is warranted.
I.
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.
2
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.
3
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
4
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.
5
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.
II.
As our court has explained, “[a] member of this court’s bar
who ‘has been suspended or disbarred from practice in any
other court’ is subject to reciprocal discipline in this court.” In
re Zdravkovich, 634 F.3d 574, 577 (D.C. Cir. 2011) (quoting
Fed. R. App. P. 46(b)(1)(A)). In determining whether to impose
reciprocal discipline, “we must undertake an ‘intrinsic
6
consideration of the state record,’ recognizing that a state
court’s decision to impose a particular sanction ‘is not
conclusively binding on the federal courts.’” Id. at 577 (citation
omitted) (quoting Selling v. Radford, 243 U.S. 46, 51 (1917);
In re Ruffalo, 390 U.S. 544, 547 (1968)). “Nevertheless, the
state court’s substantive findings are entitled to a high degree
of respect,” id., as “we are not sitting as a court of review to
discover error in the [judge’s] or the [state] courts’
proceedings,” In re Sibley, 564 F.3d 1335, 1341 (D.C. Cir.
2009). “The burden of showing why the court should not
impose reciprocal discipline rests with” Mr. Klayman. See id.
at 1340.
Under Rule IV(c) of our Rules of Disciplinary
Enforcement, “this Court shall impose the identical discipline”
imposed by the D.C. Court of Appeals “unless the attorney
demonstrates, or this Court is satisfied that:”
(1) the procedure was so lacking in notice or
opportunity to be heard as to constitute a
deprivation of due process; or
(2) there was such an infirmity of proof
establishing the misconduct as to give rise to the
clear conviction that this Court could not,
consistent with its duty, accept as final the
conclusion on that subject; or
(3) the imposition of the same discipline by this
Court would result in grave injustice; or
(4) the misconduct warrants substantially
different discipline.
D.C. Cir. Rules, App. II, Rule IV(c).
7
Mr. Klayman does not challenge the Hearing Committee’s
finding that, in violation of Rule 1.9, he represented Cobas,
Benson, and Paul in the same or substantially similar matters
on which he advised Judicial Watch, all without seeking
consent from Judicial Watch. Instead, Mr. Klayman argues that
he qualifies for three of the four Rule IV(c) exceptions. We
consider each, though in a slightly different order.
A.
We begin with the second exception, which requires that
we consider whether “there was such an infirmity of proof
establishing the misconduct as to give rise to the clear
conviction that this Court could not, consistent with its duty,
accept as final the conclusion on that subject.” As noted above,
Mr. Klayman acknowledges that he represented Cobas,
Benson, and Paul in the same or substantially similar matters
on which he advised Judicial Watch without seeking Judicial
Watch’s consent. It is thus hardly surprising that he never even
tries to make the “difficult showing” that there was an infirmity
of proof. In re Zdravkovich, 634 F.3d at 579.
Relying on a letter from “renowned legal ethics expert”
Ronald Rotunda, Br. 4, Mr. Klayman argues that he committed
no ethical violation because he was “simply pursu[ing] an
obligation that he knew that he owed to Sandra Cobas, Peter
Paul, and Louise Benson,” Br. 6 (internal quotation marks
omitted). According to Mr. Klayman, he was fulfilling his duty
under Rule 1.3(a), which requires lawyers to represent clients
“zealously and diligently,” as Cobas, Benson, and Paul were
otherwise unable to afford counsel and they would have “los[t]
their legal rights.” Br. 7 (internal quotation marks omitted).
Insisting that he had an “ethical obligation . . . to zealously and
diligently represent” the three clients, Mr. Klayman contends
that he committed no ethical violation despite representing
8
them without seeking consent from Judicial Watch. Id.
(internal quotation marks omitted).
This argument is entirely without merit. Even though Mr.
Klayman owed a duty of zealous representation to Cobas,
Benson, and Paul, Rule 1.9 is absolute. Absent informed
consent from Judicial Watch, Mr. Klayman may not “represent
another person in the same or a substantially related matter in
which that person’s interests are materially adverse to the
interests of” Judicial Watch. As Judge Lamberth put it, “Rule
1.9 provides no exception to its prohibition on successive
representation.” Paul, 571 F. Supp. 2d at 27.
Next, Mr. Klayman quotes at length from a portion of the
Rotunda letter that relies heavily on the Supreme Court’s
decision in Maples v. Thomas, 565 U.S. 266 (2012). See Br.
6–7. There, the Court concluded that counsel’s failure to
properly withdraw from representation of a death row inmate
excused the inmate’s failure to meet a crucial filing deadline
because counsel’s effective abandonment was an
“extraordinary circumstance.” See Maples, 565 U.S. at 289.
From this, Rotunda concludes that “it [was] reasonable and
understandable that Mr. Klayman believed that he had an
ethical obligation . . . to zealously and diligently represent”
Cobas, Benson, and Paul. Br. 7 (internal quotation marks
omitted). Maples, however, has nothing whatsoever to do with
this case, as the lawyers involved there were not representing a
client whose interests were adverse to a former client. Maples
is about client abandonment, not switching sides.
Seeking support from Judge Lamberth, Mr. Klayman
points out that the judge found “ambiguity with respect to the
standard for disqualification in the face of a violation of Rule
1.9.” Br. 8 (internal quotation marks omitted). But as the plain
language of this quote demonstrates, the ambiguity Judge
9
Lamberth found related to the standard for “disqualification”
of a lawyer who violated Rule 1.9. He found no ambiguity at
all with respect to whether Mr. Klayman had in fact violated
Rule 1.9. Quite to the contrary, Judge Lamberth thought it
“clear” that Mr. Klayman’s representation of Paul amounted to
“an unambiguous violation” of the rule. Id. at 21. In any event,
Judge Lamberth ultimately disqualified Mr. Klayman. Id. at
26–27.
B.
Invoking the first Rule IV(c) exception—whether “the
procedure was so lacking in notice or opportunity to be heard
as to constitute a deprivation of due process”—Mr. Klayman
argues that because “the bar proceeding was instituted nearly
eight (8) years after the alleged ethical infractions occurred,”
he suffered “undue prejudice,” as he was unable to “produce
all of the documentary evidence and witnesses in support of his
defenses.” Br. 10.
On its face, however, the exception concerns due process
violations arising from “lack[] [of] notice or opportunity to be
heard,” and it is undisputed that Mr. Klayman “was given
notice of the charges against him and . . . had the opportunity
to call and cross-examine witnesses, make arguments, and
submit evidence.” In re Zdravkovich, 634 F.3d at 578. Even if
due process concerns extend beyond the exception’s plain
language, Mr. Klayman has failed to show any prejudice. See
In re Ekekwe-Kauffman, 210 A.3d 775, 785 (D.C. 2019)
(explaining that in disciplinary proceedings, an “[u]ndue delay
may result in a due process violation” when “the respondent
demonstrates actual prejudice—that is, that the delay in
prosecution impaired [his] defense”). He quotes the Rotunda
letter for the proposition that, at the time of the disciplinary
proceedings, Paul “[was] in federal prison in Texas,” “Cobas
ha[d] health problems,” and “Benson [was] an 83-year-old
10
woman.” Br. 11 (internal quotation marks omitted). But when
pressed at oral argument, Mr. Klayman was unable to explain
how any of this—or indeed anything else—actually prejudiced
him. See Oral Arg. Tr. 15–16.
Mr. Klayman’s remaining arguments are equally without
merit. He invokes the doctrine of laches but fails to cite a case
from either this circuit or the D.C. Court of Appeals that applies
laches to disciplinary proceedings, nor are we aware of one.
Quoting the Rotunda letter, he claims that “Judicial Watch
submitted boxes full of voluminous documents to the Bar
Counsel’s office in secret” and those documents were not
served to “Mr. Klayman until the Petition was filed,” Br. 13
(internal quotation marks omitted), but he provides no evidence
of this alleged due process violation. See Allen v. District of
Columbia, 969 F.3d 397, 405 (D.C. Cir. 2020) (explaining that
this court does not “consider arguments raised in such skeletal
form”).
C.
In support of his argument under Rule IV(c)’s third
exception, which applies when “imposition of the same
discipline by this Court would result in grave injustice,” Mr.
Klayman largely reiterates his unmeritorious infirmity of proof
and due process arguments, and then urges us to consider his
“course of work as a public interest attorney.” Br. 13.
Specifically, he explains that he “often takes cases on pro bono
. . . to try to make society a better place.” Br. 13.
Rule 1.9, however, contains no exception for public
interest lawyers. Indeed, many fine public interest lawyers
appear in this court, and we think they would be stunned at the
suggestion that the rule does not apply to them. As Judge
Lamberth emphasized, Rule 1.9’s bar is “essential to the proper
functioning of our system of justice.” Paul, 571 F. Supp. 2d at
11
27. Underlying the rule is counsel’s “duty of loyalty” to a
client, which incorporates “a duty to avoid conflicts of
interest.” Strickland v. Washington, 466 U.S. 668, 688 (1984).
“Without such a rule, clients may be reluctant to confide
completely in their attorneys.” In re Corn Derivatives Antitrust
Litigation, 748 F.2d 157, 162 (3d Cir. 1984). In view of the
principles animating Rule 1.9, recognizing the public interest
exception Mr. Klayman urges would in fact be contrary to the
public interest.
III.
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
12
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).
IV.
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
13
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.