Tuesday, February 6, 2018

D.C. BPR: No Fitness For Larry Klayman

The District of Columbia Board on Professional Responsibility recommends a 90-day suspension - but with automatic reinstatement - of Larry Klayman for his misconduct toward former client Judicial Watch

Although Respondent did not engage in dishonesty in either the underlying events or these proceedings, his conduct was as serious as that in Shay and Jones Terrell because it was motivated by animus toward Judicial Watch. These were not three innocent mistakes by a busy lawyer who lost track of an old client. Indeed, Respondent never claimed that the conflict resulted from mistake, carelessness, or inadvertence. He also shows no remorse for his obvious misconduct. Instead, he argued to the Hearing Committee that he engaged in these three obviously conflicting representations pursuant to his ethical obligation under Rule 1.3 to zealously represent his new clients, who had been abandoned by Judicial Watch and would have been without representation were if not for him.

The Hearing Committee rejected this argument, as do we. HC Rpt. 31. To advance his personal crusade against Judicial Watch, Respondent “switched sides,” and represented three individuals after representing Judicial Watch in the same matters involving those same three people. This vindictiveness strikes at the very heart of the attorney-client relationship, and deserves a serious sanction of ninety-day suspension. We expect that this suspension will send a message to Respondent and others who may be similarly tempted to turn on former clients to whom they owe a continuing duty of confidentiality.

The Hearing Committee’s fitness recommendation relied heavily on its finding that Respondent testified dishonestly and its consideration of prior discipline in Florida. As discussed above, we do not find clear and convincing evidence that Respondent testified falsely, and we see the Florida discipline as less serious than the Hearing Committee saw it. Although we find Respondent’s lack of remorse troubling, it does not rise to the level of clear and convincing evidence of a serious doubt as to Respondent’s ability to practice law following his suspension. See Cater, 887 A.2d at 24. We thus reject the Hearing Committee’s recommendation that we impose a fitness requirement.

On the false testimony finding

The Hearing Committee also found that Respondent testified falsely in the hearing and misrepresented his testimony in his brief. HC Rpt. 41. It concluded that Respondent’s testimony and argument falsely claimed that he relied on his co counsel’s advice that he could ethically appear in the litigations. Id. at 29-30. The Hearing Committee also decided that a fitness requirement was necessary, in considerable part because of (1) Respondent’s dishonesty before the Committee and (2) a disciplinary matter in Florida, which suggested that Respondent will not act ethically after his period of suspension has run. Id. at 42; see In re Cater, 887 A.2d 1, 24 (D.C. 2005).

Since the Hearing Committee’s findings of uncharged falsehoods were material to the sanction recommendation, we must review them de novo. See In re Bradley, 70 A.3d 1189, 1194 (D.C. 2013) (per curiam). The Committee relied virtually entirely on the testimony of Respondent’s co-counsel in the Benson matter, who testified that he did not endorse Respondent’s appearance. However, the forcefulness of that testimony was undercut by the witness’s repeated, yet understandable, inability to recall the substance of key conversations in which he had participated with Respondent more than eight years earlier. See Resp. Br. 39- 41; Tr. 677-79. For example, when asked if he had advised Respondent if he could enter his appearance on behalf of Ms. Benson, he testified “I don’t recall.” Tr. 676; see Tr. 688. Moreover, a contemporaneous court filing quoted him as stating that there “was no ethical issue” arising from Respondent’s representation of Benson. DCX 29 at 5. The witness, who co-signed Respondent’s opposition to the disqualification motion, testified in the disciplinary hearing that he did not think the opposition was frivolous (Tr. 689) and would not have “put [his] name on a pleading that [he] thought was in violation of any pleading rule or ethical rule.” Tr. 696.

The Court has noted that in disciplinary proceedings the passage of time “dims memories and so distorts the truth finding process” such that mitigation, rather than enhancement of proposed sanctions, is “particularly suitable.” In re Williams, 513 A.2d 793, 798 (D.C. 1986) (per curiam). Here, the witness’s diminished recollection and his prior, apparently inconsistent, statements convince us that Disciplinary Counsel (who did not argue to the Hearing Committee that Respondent was dishonest) failed to prove dishonesty by clear and convincing evidence. See In re Downey, 162 A.3d 162, 168-69 (D.C. 2017).

I am more than dubious that the Board has the de novo power asserted here. Perhaps the Court of Appeals will enlighten us on the point. 

As the Assistant Bar Counsel in In re Williams, I can assure the reader that it is a pathetic citation for the claimed proposition.

It is, however, a notable example of the Board overstepping its authority.

False testimony by accused attorneys in bar proceedings is not, as the BPR suggests, an "uncharged falsehood." Rather, it is a breach of a fundamental ethical obligation and highly sanctionable misconduct that has serious consequences.

As the court said in rejecting the Board 's sanction recommendation in In re Cleaver-Bascombe where the attorney had testified falsely in the discipline case

 ...we reject the Board's recommended sanction of a two-year suspension with a fitness requirement. We likewise reject respondent's contention that a three-month suspension coupled with a requirement that she complete a CLE course in record-keeping is the appropriate sanction.

What we said in Cleaver-Bascombe I bears repeating here:

The allegations in this case are extremely serious. The compensation of attorneys who represent criminal defendants in the District of Columbia courts pursuant to the Criminal Justice Act is based upon the assumption that members of our Bar are honorable men and women who will accurately report the work that they have done, and who will not demean their noble calling and bring disgrace to themselves and to their profession by swearing that they performed work that they did not do. Attorneys who accept CJA appointments are therefore expected to be scrupulously honest and to exercise a high degree of care in completing their vouchers, which are paid out of taxpayer funds, and which are submitted to the court under penalty of perjury. Where an attorney has deliberately falsified a voucher and sought compensation for work that he or she has not performed, or for time that he or she has not devoted to the case, that attorney's fitness to practice is called into serious question. This is especially true if the attorney has compounded his or her initial fraud by testifying falsely during the resulting disciplinary proceedings.

 

In re Klayman can be found at this link. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/02/the-district-of-columbia-board-on-professional-responsibility-although-respondent-did-not-engage-in-dishonesty-in-either-the.html

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