DC Appeals Court Affirms Sidelining Of Attorney Larry Klayman, Who Attempted To 'Change Sides' In Litigation

Legal Issues

from the saving-yourself-by-setting-yourself-on-fire dept

Update: This piece has been updated for clarification after Klayman contested some of the points in the article that were based on the Appeals Court Opinion, but could have been worded more clearly.

Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he’s a lawyer in every jurisdiction he hasn’t been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.

Own the libs, he may. But federal courts refused to be owned. And Klayman — who I will freely admit was at least willing to mount a solid challenge to NSA surveillance — will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.

The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman’s litigational escapades.

So, how owned are the libs? Let’s ask the court [PDF]. (via Reason)

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.

Bingo and/or bango:

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.

[waits for laughter to die down]

How did Klayman manage to get this smacked down by a federal court? Let us count the ways. And by “the ways,” I mean “holy shit, bro, what even the fuck.”

A brief history: Larry Klayman founded Judicial Watch in 1994. Since then, he has engaged in plenty of litigation, not all of it misguided. When not defending people who don’t have legitimate grievances, Klayman has also engaged in FOIA litigation and challenges of domestic surveillance. He’s not a totally useless lawyer. But he’s become more useless thanks to a Trump presidency and a rabid “conservative” base that has encouraged all of his worst instincts.

But this case has nothing to do with his political leanings or his inability to choose clients worthy of representation. The courts have cautioned Klayman before about changing sides when criticized by clients for his ineffective representation. In 2013, the DC Circuit handled a complaint against Judicial Watch brought by a former director of Judicial Watch’s Miami office, who accused Judicial Watch of creating a “hostile work environment.”

After this, Klayman left Judicial Watch and struck out on his own. Then he approached the court, informing it he was now representing the person who accused his former organization of creating a “hostile work environment” and asked the court to vacate its dismissal of the former director’s lawsuit.

Then he decided to insert himself into another court case against his former organization — again, without Judicial Watch’s approval. Louise Benson sued Judicial Watch after her $15,000 donation towards the purchase of a building was swallowed by Judicial Watch and no building was ever secured.

Finally, Klayman represented Peter Paul in a case involving campaign fundraising via Judicial Watch. After Klayman left Judicial Watch, the organization decided to stop representing Peter Paul. But that didn’t stop Klayman, who decided he could continue to represent Paul, even without the permission of his former employer, Judicial Watch.

This string of events ended with Klayman being suspended by the DC Circuit for ninety days. The court also ordered Klayman to attend a legal education class on conflicts of interest.

Klayman appealed, apparently suggesting the court system should allow him to continue to engage in such conflicts of interest.

The Appeals Court disagrees. There’s nothing in Klayman’s arguments that demand a reversal of any disciplinary steps taken against him.

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.”

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). 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.

A house divided against itself by an interloping legal “representative” cannot stand.

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.

This is not the sort of thing you want to hear from a federal court… unless you’ve convinced yourself this is a compliment.

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.” […] This is an astonishing argument.

Enjoy the pejorative, Larry.

The suspension survives Klayman’s “astonishing” attempt to overturn it. Trying to “change sides” in a lawsuit never plays well in court, no matter what court system level this tactic is deployed in. The court quotes a lower court judge noting that Klayman’s activity was “the very type of ‘changing of sides in the matter’ forbidden” by local rules. Klayman is relegated to sidelines in the DC Circuit, a place he has historically done a great deal of business.

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