In re Klayman ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 20-BG-583
IN RE LARRY E. KLAYMAN, RESPONDENT.
A Suspended Member of the Bar
of the District of Columbia Court of Appeals
(Bar Registration No. 334581)
On Report and Recommendation
of the Board on Professional Responsibility
(17-BD-063; DDN-028-11)
(Argued June 16, 2022 Decided September 15, 2022)
Melissa Isaak for respondent.
Myles V. Lynk, Senior Assistant Disciplinary Counsel, with whom Hamilton
P. Fox, III, Disciplinary Counsel, was on the brief, for petitioner.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and MCLEESE,
Associate Judges.
PER CURIAM: The Board on Professional Responsibility concluded that
respondent Larry E. Klayman violated numerous District of Columbia Rules of
Professional Conduct during his representation of former client E.S. The Board
recommended that Mr. Klayman be suspended for eighteen months, with a
requirement that he show fitness before being permitted to return to the practice of
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law. We accept the Board’s conclusion that Mr. Klayman violated the Rules of
Professional Conduct, and we adopt the Board’s recommended sanction.
I. Factual Background
In sum, the evidence presented by Disciplinary Counsel to the Hearing
Committee was as follows. The evidence largely consisted of E.S.’s testimony but
also included numerous documents, including written correspondence between E.S.
and Mr. Klayman.
E.S. met Mr. Klayman in 2009, while she was covering a story for Voice of
America (VOA). E.S. told Mr. Klayman that she was being sexually harassed by
her cohost and that after she reported the harassment to her supervisor, she was
transferred to a different position. Early in 2010, Mr. Klayman and E.S. agreed that
he would represent her in a case against VOA. E.S. did not believe that Mr. Klayman
provided her with a written document setting out the scope and nature of the
representation. Mr. Klayman and E.S. agreed that Mr. Klayman would work on a
contingent basis, receiving forty percent of any award E.S. won. Mr. Klayman later
unilaterally increased his fee to fifty percent.
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Mr. Klayman initially attempted to negotiate a settlement with VOA. After
the negotiations were unsuccessful, Mr. Klayman encouraged E.S. to move from the
District of Columbia to Los Angeles, assuring her that he could get her transferred
to the VOA office in Los Angeles. Mr. Klayman paid for the move and for E.S.’s
living expenses in Los Angeles. E.S. and Mr. Klayman agreed that the money Mr.
Klayman was providing would be paid out of any award E.S. won, in addition to the
contingency fee. VOA denied E.S.’s request for a transfer, at which point Mr.
Klayman filed a civil suit against E.S.’s alleged harasser and supervisors.
E.S. had wanted her case to be “very quietly handled,” with as few people as
possible finding out about the harassment. She explained her concerns about
publicity to Mr. Klayman, and he initially respected her wishes. Mr. Klayman later
began to pursue a strategy designed to draw attention to E.S.’s case. For example,
shortly after filing suit against E.S.’s harasser and supervisors, Mr. Klayman filed
suit against the members of VOA’s governing board, the Broadcasting Board of
Governors (BBG). The BBG included prominent public figures, particularly then-
Secretary of State Hillary Rodham Clinton. E.S. did not agree to the BBG suit,
worrying that the case “was getting too big” and preferring to focus on her harasser
and supervisors. Mr. Klayman subsequently filed motions to disqualify the district-
court judge who had been assigned to both of E.S.’s cases, arguing that the judge
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was politically biased against him. Mr. Klayman also wrote numerous articles
mentioning E.S.’s case and providing confidential information about E.S. Although
E.S. was initially “completely against” the articles, she ultimately agreed to the
publicity after Mr. Klayman explained that it would help her case.
In April 2010, Mr. Klayman began to repeatedly express romantic feelings
towards E.S. Mr. Klayman told E.S. that he loved her, and E.S. replied that he was
her attorney and they could only be friends. For months thereafter, Mr. Klayman
kept saying that “he wanted to have a relationship with [E.S.] and [E.S. kept] saying
no, and it was ongoing and ongoing and it wouldn’t stop . . . it was very, very, very
uncomfortable” for E.S. For example, Mr. Klayman sent an email to E.S. saying
“You are . . . the only woman I’ve ever really loved. . . . [W]hen I walk down the
street . . . and see an attractive woman, my thoughts immediately flip to you. I see
no one else. . . . My loving you has given me true meaning in my life.”
E.S. believed that Mr. Klayman’s feelings for her were causing him to act
unprofessionally in his representation, which Mr. Klayman himself acknowledged
in writing several times. For example, in one letter, Mr. Klayman said that “I do
truly love [E.S]. . . . [A]nd my own emotions have rendered me non-functional even
as a lawyer.” In an email, Mr. Klayman said “It[’]s very hard to be a lawyer and feel
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so much for your client.” In a second email, Mr. Klayman said that he had “not been
able to function lately, because [he was] out there so far emotionally and got nothing
back,” and that E.S. would “get better legal representation with someone else . . .
who does not have an emotional conflict and can keep his mind clear.”
In July 2010, E.S. wrote to Mr. Klayman and directed him to withdraw the
case against the BBG, which was by then the only active case. Several days later,
E.S. wrote to an executive at VOA stating that she had “instructed Larry Klayman
to withdraw any and all civil actions that he may have filed in my name and that he
is no longer representing me.” This letter was not sent directly to Mr. Klayman, but
by the next day he had received a copy. Mr. Klayman, however, did not dismiss the
entirety of the case against the BBG. He also continued to act on E.S.’s behalf. For
example, after the trial court granted defendants’ motion to dismiss the BBG case,
Mr. Klayman filed a motion to reconsider.
In November 2010, because Mr. Klayman continued to contact her about her
case, E.S wrote another letter to him reiterating his termination. That letter was
incorrectly addressed, and Mr. Klayman testified that he did not receive it. E.S.
wrote to Mr. Klayman a third time in January 2011, stating that he was “not
representing [her] in any way or shape.” Mr. Klayman replied to E.S., implying that
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she had not written the email and explaining that he “[could not] allow her legal
rights and obligations to be compromised or lost altogether.” Several days later, Mr.
Klayman filed a notice of appeal in the BBG case, despite not having had any
communication with E.S. about filing the appeal. E.S. later personally filed a notice
of appeal in that case.
Mr. Klayman’s testimony was contrary to E.S.’s in many respects. Generally,
Mr. Klayman testified that E.S. was seeking revenge against him because she was
angry that her case had not gone well. Mr. Klayman denied having any romantic
intentions toward E.S. To the extent he did have feelings for E.S., they “actually
made [him] work harder” on her behalf. Mr. Klayman also contested the existence
of a contingent fee agreement. Mr. Klayman testified that he consulted with E.S.
about his actions in the case, such as filing the disqualification motion. Finally, he
acknowledged E.S.’s initial reluctance to pursue publicity but testified that she later
agreed to do so. He denied pressuring E.S. on the issue.
Mr. Klayman offered testimony from several other witnesses. Gloria Allred,
a women’s rights attorney, testified that she and Mr. Klayman had discussed E.S.’s
case and that she had twice declined to take E.S.’s case. Former Judge Stanley
Sporkin testified that he had found Mr. Klayman to be an honest and ethical lawyer
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and had no reason to doubt Mr. Klayman’s character. Former Judge Sporkin also
testified that he and Mr. Klayman had discussed E.S.’s case and that he had agreed
with aspects of Mr. Klayman’s litigation strategy. Timothy Shamble, who was
E.S.’s union representative at VOA, testified, among other things, that E.S. had
agreed to publicize her case and had herself distributed one of the articles Mr.
Klayman wrote about her case at a VOA event. Keya Dash, a family friend, testified
that Mr. Klayman did not seek a romantic relationship with E.S., although Mr. Dash
was unaware of the emails that Mr. Klayman had sent E.S. stating that he loved her.
Finally, Joshua Ashley Klayman, Mr. Klayman’s sister, testified that E.S. agreed
with Mr. Klayman’s publicity strategy and that Mr. Klayman was not in love with
E.S.
II. Procedural Background
In 2010, E.S. filed a complaint with Disciplinary Counsel, alleging that Mr.
Klayman was harassing her even though she had terminated his representation of
her. Disciplinary counsel notified Mr. Klayman of the complaint and began to
investigate, but apparently lost contact with E.S. for several years. Counsel brought
charges in 2017.
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After the evidentiary hearing, the Hearing Committee issued a lengthy report
and recommendation. The Hearing Committee largely credited E.S.’s testimony
over that of Mr. Klayman. The Hearing Committee concluded that Mr. Klayman
had committed numerous disciplinary violations. Specifically, the Hearing
Committee concluded that Mr. Klayman violated: (1) D.C. R. Prof. Cond. 1.2(a)
(lawyer shall abide by client’s decisions as to objectives of representation and shall
consult with client as to means used) and 1.4(b) (lawyer shall appropriately explain
matter to client), by, among other things, failing to inform E.S. before taking
important steps in the litigation, including the filing of the motion to disqualify, and
refusing to dismiss the BBG suit as E.S. had directed; (2) D.C. R. Prof. Cond. 1.5(b)
(requiring written agreement regarding representation) and (c) (contingent fee
agreement shall be in writing), by not entering into a written fee agreement with
E.S.; (3) D.C. R. Prof. Cond. 1.6(a)(1) and (a)(3) (lawyer shall not reveal client
confidence or secret for lawyer’s advantage), by disclosing E.S.’s secrets, without
her informed consent, in the articles he wrote, and making these disclosures for
personal gain; (4) D.C. R. Prof. Cond. 1.7(b)(4) (lawyer shall not represent client if
lawyer’s professional judgment will be or reasonably may be adversely affected by
personal interest), by, among other things, representing E.S. without informing her
about the conflicts of interest created by his feelings for her, his animus towards the
Clinton family and the district-court judge, and his desire for publicity; and (5) D.C.
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R. Prof. Cond. 1.16(a)(3) (discharged lawyer shall withdraw from representation),
by continuing to act on E.S.’s behalf after she terminated the representation. The
Hearing Committee recommended that Mr. Klayman be suspended for thirty-three
months and that he be required to demonstrate fitness to practice law before being
reinstated.
The Board largely adopted the findings and recommendations of the Hearing
Committee, with several exceptions. First, the Board’s analysis of the Rule 1.4(b)
violation differed from the Hearing Committee’s. The Board concluded that Mr.
Klayman had violated that rule because his communications with E.S. about his
feelings for her were not “the kind of communication . . . that a client ought to
receive from her lawyer” and had “drowned out” any legitimate communications
about E.S.’s case. Second, the Board noted that Mr. Klayman appeared to concede
a violation of Rule 1.5(b), but the Board did not explicitly find a violation of that
Rule. Third, the Board concluded that Mr. Klayman’s personal interest in E.S., not
his animosity towards the Clintons and the trial judge or his interest in publicity,
provided the sole basis for the conflict-of-interest violation. Fourth, the Board
recommended an eighteen-month suspension with a fitness requirement.
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After the Board issued its Report and Recommendation, this court issued an
order to show cause why Mr. Klayman should not be temporarily suspended pending
final action by this court. See D.C. Bar R. XI, § 9(g)(1) (if Board recommends
suspension of one year or more, court will issue order to show cause why attorney
should not be temporarily suspended pending final action by court); id. (to avoid
temporary suspension, attorney bears burden of showing substantial likelihood of
success on merits). Mr. Klayman opposed the temporary suspension, but this court
ordered a temporary suspension in January 2021. The court also denied Mr.
Klayman’s motion to reconsider. Mr. Klayman subsequently filed additional
challenges in this court to his temporary suspension. By separate order, we deny
those challenges as moot in light of this decision adopting the sanction of suspension
recommended by the Board.
Mr. Klayman also filed a federal lawsuit challenging his temporary
suspension. Klayman v. Blackburne-Rigsby, No. 21-0409, 2021 WL 2652335, at *1
(D.D.C. June 28, 2021). The federal district court denied relief, and the United
States Court of Appeals for the District of Columbia Circuit summarily affirmed.
Id. at *3; Klayman v. Blackburne-Rigsby, No. 21-7069, 2022 WL 298933, at *1
(D.C. Cir. Jan. 20, 2022) (per curiam).
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Under D.C. Bar R. XI, § 9(g)(4), an attorney who is temporarily suspended
pending final action by this court is required to comply with the requirements of
D.C. Bar R. XI, § 14. Among other things, § 14 requires suspended attorneys (1) to
notify clients and adverse parties of the suspension; and (2) to file an affidavit with
the court, the Board, and Disciplinary Counsel stating that the attorney has complied
with the order of suspension and the requirements of § 14. D.C. Bar R. XI,
§ 14(a)-(c), (g). The order temporarily suspending Mr. Klayman directed Mr.
Klayman’s attention to those requirements. The temporary suspension order also
advised Mr. Klayman that his eligibility for reinstatement after suspension was tied
to compliance with the requirements of § 14. See D.C. Bar R. XI, § 16(c) (“[A]
suspended attorney shall not be eligible for reinstatement until a period of time equal
to the period of suspension shall have elapsed following the attorney’s compliance
with section 14 . . . .”). In February 2021, Disciplinary Counsel advised the court
that Mr. Klayman had failed to file the required affidavit. As of the date of this
opinion, Mr. Klayman apparently still has not submitted the required affidavit.
III. Delay
Mr. Klayman argues that the court should dismiss this matter because of the
seven-year delay in bringing charges. We agree that the delay in this case was very
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unfortunate. We have held, however, that “mere delay in the disciplinary process
generally does not provide a legitimate ground for dismissal of the complaint,”
because “[t]he public interest in regulating members of the bar takes precedence over
the attorney’s interest in having claims speedily resolved.” In re Morrell, 684 A.2d
361, 368 (D.C. 1996); see also, e.g., In re Pearson, 228 A.3d 417, 427 n.13 (D.C.
2020) (per curiam) (“It clearly is not an ideal practice to delay prosecutions for seven
years, but even troubling and inexcusable delays, without more, will not rise to a due
process violation that requires dismissal.”) (brackets and internal quotation marks
omitted). Rather, undue delay “must be coupled with actual prejudice in order to
justify dismissal.” In re Pearson, 228 A.3d at 427 n.13 (internal quotation marks
omitted). To warrant dismissal, the undue delay must have “substantially impaired”
Mr. Klayman’s ability to defend against the charges filed by Disciplinary Counsel.
In re Fay, 111 A.3d 1025, 1032 (D.C. 2015) (per curiam).
The Board denied Mr. Klayman’s request for dismissal, concluding that Mr.
Klayman had failed to show prejudice sufficient to warrant dismissal. Our cases do
not appear to make clear whether our review on this issue is deferential or de novo,
and the parties have not addressed that issue. We need not decide the issue, because
we agree with the Board’s conclusion.
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Mr. Klayman alleges that he was prejudiced in four ways. First, he points to
an intended expert witness, Professor Ronald Rotunda, who passed away before the
hearing. As the Board explained, however, Professor Rotunda’s expert report was
admitted into evidence. Moreover, as the Board further explained, Professor
Rotunda’s expected testimony was focused primarily on legal issues, such as when
delay in disciplinary prosecution warrants dismissal. The proper function of such
testimony would have been limited at best. See Steele v. D.C. Tiger Mkt., 854 A.2d
175, 181 (D.C. 2004) (“[A]n expert may not state [an] opinion as to legal standards
nor may [the expert] state legal conclusions drawn by applying the law to the facts.”)
(internal quotations marks omitted). Finally, Mr. Klayman provided no information
about any efforts he may have made to obtain a replacement expert.
Second, Mr. Klayman notes that E.S.’s psychologist, Dr. Arlene Aviera,
became unavailable to testify due to illness. The record contains written
documentation from Dr. Aviera about E.S.’s condition and correspondence from Mr.
Klayman to Dr. Aviera. The availability of those materials mitigates the effect of
Dr. Aviera’s unavailability. Mr. Klayman also testified about his communications
with Dr. Aviera. Mr. Klayman accurately points out that he attempted to take a
deposition of Dr. Aviera in advance of the hearing, but the Hearing Committee
denied that request. The Hearing Committee reasonably denied the request,
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however, because Mr. Klayman had failed to concretely describe what additional
information Mr. Klayman would seek in a deposition. Moreover, the evidence that
Mr. Klayman now claims he would have sought to elicit from Dr. Aviera – such as
that E.S. was a difficult client and that E.S.’s psychological problems were not
caused by Mr. Klayman – does not appear to be of substantial importance.
Third, Mr. Klayman asserts that his memory had faded over the years, as had
E.S.’s. We agree with the Hearing Committee, however, that neither E.S. nor Mr.
Klayman displayed significant gaps in their memory of material facts.
Finally, Mr. Klayman claims that he lost or discarded documents that would
have been helpful to his defense. We note that Mr. Klayman was on notice of the
disciplinary complaint by 2011, and he therefore could have been expected to retain
any relevant documents until that matter was explicitly resolved. Cf. In re Ekekwe-
Kauffman, 210 A.3d 775, 786 (D.C. 2019) (per curiam) (attorney’s claim of lost
documents “is unpersuasive in light of the fact that [the attorney] was aware of the
potential for misconduct charges”). In any event, Mr. Klayman has not in this court
identified specific lost documents or their relevance.
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In sum, we conclude that Mr. Klayman has failed to show that the delay in
this case caused him substantial prejudice warranting dismissal. To the extent Mr.
Klayman suggests that this court should not require such a showing, we are bound
by the contrary holdings of our prior cases. See, e.g., In re Ekekwe-Kauffman, 210
A.3d at 785 n.12 (declining to apply doctrine of laches in disciplinary proceedings,
in light of prior precedent applying due-process framework to determine when
dismissal is warranted on basis of delay).
IV. Alleged Bias
Mr. Klayman argues that the Office of Disciplinary Counsel, the Hearing
Committee, the Board, this court, and others are all biased against him. For example,
Mr. Klayman argues that (1) the district-court judge who handled the federal suits
Mr. Klayman filed on E.S.’s behalf is “highly partisan and to the far left”; (2) the
Office of Disciplinary Counsel and the Board are “managed by leftist pro-Clinton
Democrats”; (3) one member of the Hearing Committee is a “communist” and
another is a “deferential ultra-leftist”; (4) the entire disciplinary proceeding has been
“highly partisan”; (5) the Office of Disciplinary Counsel is engaged in a “dogmatic
and unrelenting . . . jihad” to remove Mr. Klayman from the practice of law; (6)
members of the Hearing Committee “exhibited great vitriol toward Mr. Klayman”;
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(7) the Board “exhibited . . . open animus and bias against Mr. Klayman”; (8) “men
are frequently disbelieved but women more often than not get off scot free when
they lie to tribunals”; and (9) this court has prejudged this matter, suffers from a
conflict of interest in the matter, and temporarily suspended Mr. Klayman
“strategically to harm Mr. Klayman’s reputation.” The record, however, does not
support Mr. Klayman’s repeated assertions of bias.
V. Other Disciplinary Proceedings
Mr. Klayman repeatedly argues that it was inappropriate for Disciplinary
Counsel to move forward with charges in this case, because disciplinary authorities
in Pennsylvania and Florida long ago dismissed the claims of misconduct in this case
as baseless. We are not persuaded by that argument.
First, the record provides no direct information about the resolution of any
disciplinary proceedings in Pennsylvania and Florida regarding the allegations in
this case. There is some evidence that E.S. brought complaints to those authorities.
Mr. Klayman also presented evidence that he has not been disciplined in those
jurisdictions. It is unclear, however, whether complaints actually were brought in
those jurisdictions, and if so, how those matters were resolved. For example, it may
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be that those jurisdictions choose to await resolution of the complaint in the District
of Columbia, where the conduct at issue appears to have primarily occurred. Cf.,
e.g., In re Krapacs, 245 A.3d 959, 959 (D.C. 2021) (per curiam) (noting that District
of Columbia disciplinary proceeding had been stayed pending final resolution of
disciplinary proceeding in Florida).
Second, in any event, it is unclear whether the District of Columbia
disciplinary authorities or this court would be required to give binding effect to any
determination that might have been reached in another jurisdiction as to the propriety
of Mr. Klayman’s conduct. Cf., e.g., In re Robbins, 192 A.3d 558, 565-66 & n.7
(D.C. 2018) (per curiam) (declining to give preclusive effect in disciplinary
proceedings to determination of Virginia court in Virginia disciplinary proceeding,
because, among other things, disciplinary counsel did not participate in Virginia
proceeding and Virginia court relied on inferior record).
VI. Disciplinary Violations
Mr. Klayman challenges the Board’s conclusion that he committed numerous
disciplinary violations. We agree with the Board that each of the violations at issue
was supported by the record.
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We “accept the findings of fact made by the Board unless they are
unsupported by substantial evidence of record.” D.C. Bar R. XI, § 9(h)(1). We
review legal conclusions de novo. In re Cleaver-Bascombe, 892 A.2d 396, 401-02
(D.C. 2006).
A. Credibility
Most broadly, Mr. Klayman takes issue with the decision of the Hearing
Committee and the Board to largely credit E.S.’s testimony rather than that of Mr.
Klayman. We are required, however, to “place great weight on credibility
determinations made by the Board and the Hearing Committee because of the
Hearing Committee’s unique opportunity to observe the witnesses and assess their
demeanor.” In re Pearson, 228 A.3d at 423 (internal quotation marks omitted). We
see no adequate basis upon which to overturn the credibility determinations made
by the Hearing Committee and the Board.
It is true that E.S.’s testimony on various issues was impeached or
contradicted by other evidence. For example, although E.S. testified that she wanted
to limit the publicity surrounding her case, there was evidence that she ultimately
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agreed to publicity and even in one instance publicly distributed information about
the case. E.S. also testified that she was opposed to the suit against the BBG, which
is arguably inconsistent with her later decision to personally file a notice of appeal
after the case was dismissed. It is also true, however, that Mr. Klayman’s testimony
was impeached and contradicted on critical points. For example, Mr. Klayman
testified that he had no romantic intentions toward E.S., but the record contains
numerous emails from him where he declared that he was in love with E.S., going
so far as to state that she was “the only woman [he had] ever really loved.” Similarly,
Mr. Klayman testified that he was representing E.S. pro bono and did not have a fee
arrangement with her. In an email to E.S., however, Mr. Klayman said that “50
percent of any recovery is fair and that is what I require.”
We conclude that the Hearing Committee and the Board acted reasonably by
choosing to largely credit E.S.’s testimony over that of Mr. Klayman.
B. Specific Rule Violations
Many of Mr. Klayman’s challenges to the findings of specific rule violations
rest on Mr. Klayman’s version of the facts. As we have explained, however, we
must accept the factual findings of the Hearing Committee and the Board if those
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findings are “supported by substantial evidence in the record as a whole.” In re
Godette, 919 A.2d 1157, 1163 (D.C. 2007). That is true even if “there might also be
substantial evidence to support a contrary finding.” Id. (internal quotation marks
omitted). Having reviewed the record, we conclude that substantial evidence
supports the Board’s conclusion that Mr. Klayman violated the rules at issue.
1. Conflict of Interest
The Board concluded that Mr. Klayman violated D.C. R. Prof. Cond. 1.7(b)(4)
by representing E.S. when his professional judgment was adversely affected by
his personal interest in E.S. The record amply supports that conclusion.
Whether or not his feelings for E.S. were sexual or romantic in nature, Mr.
Klayman indisputably had strong feelings for E.S. For example, he wrote that he
had “fall[en] in love with [E.S.],” would always love her, and was “feeling real pain”
because she did not share his feelings. Additionally, Mr. Klayman sent emails
acknowledging that his feelings for E.S. interfered with his ability to represent her.
For example, he wrote that his own “emotions [had] rendered [him] non-functional
even as a lawyer.” The record thus supports the Hearing Committee’s conclusion,
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echoed by the Board, that Mr. Klayman had strong feelings for E.S. and that those
feelings created a conflict of interest in violation of Rule 1.7(b)(4).
As Mr. Klayman suggests, some potential conflicts of interest can be waived
if the client provides informed consent. D.C. R. Prof. Cond. 1.7(c)(1). Even if the
client consents, however, the lawyer must “reasonably believe[] that the lawyer will
be able to provide competent and diligent representation” to the client. D.C. R. Prof.
Cond. 1.7(c)(2). In light of his own statements, Mr. Klayman could not have
reasonably believed that his professional judgment was unimpaired and that he could
provide competent and diligent representation. Moreover, the record supports the
conclusion that Mr. Klayman’s feelings for E.S. did adversely affect his
representation of E.S. For example, E.S. testified that she terminated Mr. Klayman’s
representation in part because he was not able to act professionally towards her and
his contacts with her had become abusive. We therefore agree with the Board that
Mr. Klayman’s representation of E.S. while he had strong personal feelings towards
her violated the rule.
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2. Failure to Abide by Client’s Wishes
D.C. R. Prof. Cond. Rule 1.2(a) requires a lawyer to “abide by a client’s
decisions concerning the objectives of representation” and to “consult with the client
as to the means by which they are to be pursued.” The Board concluded that Mr.
Klayman violated this rule in two ways: by seeking publicity contrary to E.S.’s
wishes and by refusing to dismiss the BBG lawsuit as E.S. directed. We agree with
the Board’s conclusion on the latter point and therefore see no need to address the
first.
Mr. Klayman argues that by not dismissing the entirety of the suit against
BBG he was abiding by E.S.’s stated wishes. That argument is contradicted,
however, by the plain language of E.S.’s July 2010 email, which directed Mr.
Klayman to “withdraw all the pending lawsuits that are on my behalf and/or in my
name.” Mr. Klayman also argues that he did not believe the letters instructing him
to dismiss the BBG case and cease representation of E.S. reflected E.S.’s true wishes,
pointing to the fact that E.S. ultimately appealed the trial court’s decision in the BBG
case. E.S.’s later appeal is not necessarily inconsistent with her desiring to dismiss
the case at the time she instructed Mr. Klayman to do so. Moreover, the Hearing
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Committee reasonably did not credit Mr. Klayman’s claim that he did not believe
that the direction to dismiss the case was from E.S.
3. Revealing and Using Client Secrets
The Board concluded that Mr. Klayman violated D.C. R. Prof. Cond. 1.6(a)(1)
(revealing client confidence or secret) and (a)(3) (using client confidence or secret
for advantage of lawyer). Specifically, the Board concluded that Mr. Klayman’s
publicity campaign resulted in the public disclosure of confidential information
about E.S. and that Mr. Klayman had not obtained informed consent from E.S. The
Hearing Committee concluded that those disclosures were for Mr. Klayman’s own
advantage because the publicity lauded Mr. Klayman’s own actions in handling
E.S.’s cases, raising Mr. Klayman’s professional profile.
Mr. Klayman argues that E.S. eventually consented to the publicity about her
cases and her personal life. See D.C. R. Prof. Cond. 1.6(e)(1) (permitting disclosure
of client confidence or secret with client’s informed consent). Even assuming that
is true, the Hearing Committee and the Board both concluded that E.S. did not give
informed consent, but rather acquiesced in Mr. Klayman’s views on the topic
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without having the benefit of adequate advice from Mr. Klayman. We conclude that
the record supports those conclusions. See generally D.C. R. Prof. Cond. R. 1.0(e)
(“‘Informed Consent’ denotes the agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed
course of conduct.”). We also note that several of the articles that Mr. Klayman
wrote were published after July 2010, when E.S. terminated Mr. Klayman’s
representation. We agree with the Hearing Committee that Mr. Klayman did not
have E.S.’s informed consent to such publication, because E.S. had by that point
terminated Mr. Klayman’s representation of her.
Mr. Klayman notes that he attempted to provide the Board with a video that
he contends showed that E.S. was trying to publicize her claims. The Board refused
to consider that video, because the motion bringing the video to the Board’s attention
was received after the Board’s recommendation was pending in this court. Although
Mr. Klayman argues in passing that the Board’s ruling on this issue was incorrect,
he does not address the Board’s reasoning or provide a specific argument as to why
the Board’s ruling was incorrect under applicable principles of law. Because this
issue has not been adequately presented for our review, we decline to address it. See
PHCDC1, LLC v. Evans & Joyce Willoughby Trust, 257 A.3d 1039, 1043 (D.C.
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2021) (“[Appellant], however, has not briefed that issue with adequate specificity,
having failed to identify specific disputes of fact or issues of law that support reversal
of the trial court’s ruling.”).
4. Explaining Matters to Client
The Board concluded that Mr. Klayman violated D.C. R. Prof. Cond. 1.4(b),
which requires a lawyer to “explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.” As
previously noted, the Board reasoned that Mr. Klayman’s barrage of
communications with E.S. about his feelings for her were not “the kind of
communication . . . that a client ought to receive from her lawyer” and “drowned
out” any legitimate communications about E.S.’s case.
Mr. Klayman challenges the Board’s reasoning, but we need not resolve that
issue. The Hearing Committee based its conclusion of a Rule 1.4(b) violation on
specific instances in which the Hearing Committee found that Mr. Klayman did not
consult with E.S. before taking important steps in the litigation, including filing the
motion to disqualify the district-court judge. The record supports that conclusion.
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5. Absence of Written Fee Agreement
The Board concluded that Mr. Klayman violated D.C. R. Prof. Cond. 1.5(c)
(requiring written fee agreement in contingent-fee case). Specifically, the Board
credited E.S.’s testimony that there was a contingent fee agreement between Mr.
Klayman and E.S.
Mr. Klayman disputes the existence of a contingent fee agreement, relying on
his own testimony. The Board, however, reasonably credited E.S.’s testimony over
Mr. Klayman’s on this point, particularly given the email that Mr. Klayman sent
demanding a contingent fee.
The Board noted that Mr. Klayman did not appear to contest the Hearing
Committee’s determination that Mr. Klayman violated D.C. R. Prof. Cond. 1.5(b),
by failing to obtain a written agreement memorializing the terms of the
representation. The Board, however, did not explicitly state its own conclusion on
that issue. Although Mr. Klayman does not appear to specifically dispute in this
court that he violated R. 1.5(b), we see no need to address that issue given the other
violations that we uphold.
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6. Failure to Cease Representation
Finally, the Board concluded that Mr. Klayman violated D.C. R. Prof. Cond.
1.16(a)(3) (lawyer shall withdraw when discharged). Mr. Klayman himself
acknowledges that he continued to take action in E.S.’s case even after she
discharged him as her lawyer. Mr. Klayman argues that he did not receive some of
the communications in which E.S. terminated his representation, but he concededly
received at least one. Mr. Klayman also argues that he did not believe that E.S.
actually wanted him to stop representing her, and instead believed that the
communication at issue was actually sent by someone else. The Hearing Committee
reasonably declined to credit this argument, finding that Mr. Klayman was aware of
his termination by August 5, 2010, at the latest.
In sum, we accept the Board’s conclusions that Mr. Klayman violated Rules
1.2(a), 1.4(b), 1.5(c), 1.6(a)(1), 1.6(a)(3), 1.7(b)(4), and 1.16(a)(3).
VII. Sanction
Mr. Klayman challenges the Board’s recommended sanction of an eighteen-
month suspension with a fitness requirement. When determining the appropriate
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sanction, we “adopt the recommended disposition of the Board unless to do so would
foster a tendency toward inconsistent dispositions for comparable conduct or would
otherwise be unwarranted.” D.C. Bar R. XI, § 9(h)(1) (internal quotation marks
omitted). “The Board’s recommended sanction comes to us with a strong
presumption in favor of its imposition.” In re McClure, 144 A.3d 570, 572 (D.C.
2016) (per curiam) (internal quotation marks omitted). “To require proof of fitness
as a condition of reinstatement after suspension, the record in the disciplinary
proceeding must contain clear and convincing evidence that casts a serious doubt
upon the attorney’s continuing fitness to practice law.” In re Peters, 149 A.3 253,
260 (D.C. 2016) (per curiam) (internal quotation marks omitted).
Mr. Klayman challenges the proposed sanction in two ways. First, he argues
that the record does not support the proposed sanction because the record does not
support the findings of misconduct. For the reasons we have already given, we
conclude to the contrary.
Second, Mr. Klayman argues that the imposition of a fitness requirement
would be at odds with our decision in In re Klayman, 228 A.3d 713 (D.C. 2020) (per
curiam). In that case, this court concluded that Mr. Klayman violated D.C. R. Prof.
Cond. 1.9, which generally prohibits conflicts of interest involving former clients.
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In re Klayman, 228 A.3d at 715-19. Specifically, the court concluded that Mr.
Klayman acted impermissibly, and vindictively, by representing parties in suits
brought against an organization where Mr. Klayman had previously served as
general counsel. Id. The court imposed a ninety-day suspension but accepted the
Board’s recommendation against imposition of a fitness requirement. Id. at 719.
The court explained that the disciplinary violations in that case, though serious, did
not leave the court “with serious doubt or real skepticism that Mr. Klayman can
practice ethically.” Id. (brackets and internal quotation marks omitted). The court’s
holding in that case rested on the record and disciplinary violations in that case. That
conclusion sheds no significant light on the question of whether the record and
disciplinary violations in this case warrant a fitness requirement. We agree with the
Board that Mr. Klayman’s many serious disciplinary violations in this case warrant
the imposition of a fitness requirement.
VIII. Failure to File § 14(g) Affidavit
Finally, Mr. Klayman argues that he had no duty to file an affidavit attesting
to his compliance with the rules governing suspended attorneys. D.C. Bar R. XI,
§ 14(g). Specifically, Mr. Klayman contends that a § 14(g) affidavit is only required
after a final disciplinary order. We disagree. As previously noted, D.C. Bar R. XI,
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§ 9(g)(4) explicitly states that an attorney temporarily suspended pending final
action by the court must comply with the requirements of § 14.
For the foregoing reasons, respondent Larry E. Klayman is hereby suspended
from the practice of law in the District of Columbia for eighteen months, with
reinstatement conditioned on demonstrating fitness to practice law. We note that
Mr. Klayman could not be reinstated until eighteen months after he “files an affidavit
that fully complies with the requirements of D.C. Bar R. XI, § 14(g).” In re Moats,
275 A.3d 890, 891 (D.C. 2022) (per curiam); D.C. Bar R. XI, § 16(c) (“[A]
suspended attorney shall not be eligible for reinstatement until a period of time equal
to the period of suspension shall have elapsed following the attorney’s compliance
with section 14 . . . .”).
So ordered.