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Klayman v. Fox

United States District Court, District of Columbia

June 5, 2019

HAMILTON FOX, et al., Defendants.



         Plaintiff Larry Klayman, proceeding pro se, brings this action against the D.C. Office of Disciplinary Counsel (“ODC”), which serves as the chief prosecutor for attorney disciplinary matters involving members of the D.C. Bar, and four of its members, Hamilton Fox, Elizabeth Herman, H. Clay Smith, III, and Julia Porter. According to Plaintiff, Defendants are conspiring to disbar him or to force him to resign from the D.C. Bar (1) because they disagree with his “political beliefs [and] public interest activism” and hope to silence him and (2) because of his gender. Dkt. 10 at 2 (Amd. Compl. ¶ 1). He asks that the Court enjoin the disciplinary proceedings pending against him and award him at least $75, 000 in damages. Id. at 25 (Amd. Compl. Prayer). The matter is before the Court on Defendants' motion to dismiss. Dkt. 15. For the reasons set forth below, the Court will grant that motion and will dismiss Plaintiff's amended complaint on the grounds that Younger abstention bars Plaintiff's claims for injunctive relief; the ODC is non sui juris; and Plaintiff's claims for damages are barred by the doctrine of absolute immunity. The Court will also grant Plaintiff's motion for leave to file a surreply. Dkt. 27.

         I. BACKGROUND

         A. District of Columbia Bar Attorney Discipline System

         The D.C. Court of Appeals is authorized “to make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.” D.C. Code § 11-2501(a); see also Nwachukwu v. Rooney, 362 F.Supp.2d 183, 191 (D.D.C. 2005) (quoting same). Pursuant to this authority, the D.C. Court of Appeals created the Board of Professional Responsibility (“the Board”) “[t]o consider and [to] investigate any alleged ground for discipline;” to take other actions on its own initiative “to effect the purpose” of the disciplinary rules; “[t]o appoint Disciplinary Counsel, Special Disciplinary Counsel, and such assistant disciplinary counsel and staff as may be required to perform the duties and functions of that office;” “[t]o appoint . . . Hearing Committees;” “[t]o reprimand attorneys subject to the disciplinary jurisdiction of the Court and the Board;” and “[t]o adopt rules, procedures, and policies” as appropriate. D.C. Bar R. XI, § 4(e); see also Nwachukwu, 362 F.Supp.2d at 192. The Board, in turn, established the ODC, formerly known as the Office of Bar Counsel, to investigate attorney misconduct and to prosecute disciplinary matters before Hearing Committees appointed by the Board, the Board itself, and the D.C. Court of Appeals. Thomas v. Knight, 257 F.Supp.2d 86, 89 (D.D.C. 2003); see also D.C. Bar R. XI § 4(e)(2).

         The attorney discipline process is structured as follows: First, the ODC investigates a complaint of attorney misconduct and decides whether to open an investigation “to ascertain if grounds exist to initiate formal proceedings.” Nwachukwu, 362 F.Supp.2d at 192 (noting that this decision is “well-recognized as a determination which is comparable to judicial decision-making” (quoting Simons v. Bellinger, 643 F.2d 744, 780 (D.C. Cir. 1980))). At the conclusion of the investigation, the ODC may-with approval from a “Contact Member” of the Board's Hearing Committee-dismiss the complaint, issue an informal admonition, make a formal “referral of charges” to the Board, or resolve the charges by way of “diversion” or “negotiated disposition.” D.C. Bar R. XI § 6(a)(3). Formal charges are prosecuted by the ODC before a Board-appointed Hearing Committee comprised of two members of the Bar and one non-lawyer. Id. §§ 4(e)(4), 4(e)(5), 6(a)(4). The members of the Hearing Committee have the power and duty to conduct hearings and to “submit their findings and recommendations on formal charges of misconduct to the Board.” Id. § 5(c)(2).

         Once the Hearing Committee provides a recommendation to the Board, “[e]xceptions to the report . . . may be filed in accordance with rules promulgated by the Board, ” and the Board must provide the attorney facing disciplinary charges and the ODC with an opportunity to submit briefs and to present oral argument. Id. § 9(a)-(b). The Board then either adopts or modifies the recommendation of the Hearing Committee and, unless the Board dismisses the charges or remands the case to the Hearing Committee, the Board must submit its own findings and recommendation to the D.C. Court of Appeals. Id. § 9(d). Both the attorney facing disciplinary changes and the ODC may, at that point, file “exceptions” to the Board's report with the D.C. Court of Appeals. Id. § 9(e). If the Board recommends “disbarment, suspension requiring proof of fitness as a condition of reinstatement, or suspension of one year or more without a fitness requirement, ” the D.C. Court of Appeals must provide the attorney facing disciplinary charges with yet another opportunity to be heard. Id. § 9(g) (requiring order to show cause). The D.C. Court of Appeals issues the final order, imposing disciplinary measures, if any. Id. § 9(h).

         B. Ongoing Disciplinary Proceedings Against Plaintiff

         Plaintiff Larry Klayman has been a member of the D.C. Bar since 1980. Dkt. 10 at 4 (Amd. Compl. ¶ 13). According to the amended complaint, Plaintiff “is a prominent conservative and non-partisan attorney and public interest activist who has brought lawsuits against Hillary Clinton, Barack Obama, George W. Bush, and other politicians and government officials.” Id. at 9 (Amd. Compl. ¶ 41). He is also the founder of “prominent public interest watchdog groups, Judicial Watch, Inc. and Freedom Watch, Inc.” Id. In the last decade, Plaintiff has been the subject of multiple complaints, resulting in the three disciplinary proceedings at issue here. See Dkt. 15-2 (Ex. 1); Dkt. 15-3 (Ex. 2); Dkt. 15-4 (Ex. 3). The Court may consider the official records relating to these charges, which are attached to Defendants' motion to dismiss, without converting that motion into a motion for summary judgment because their authenticity is undisputed, they are referenced in the amended complaint, and they are “integral” to Plaintiff's claims. Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015); see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Dufur v. U.S. Parole Comm'n, 314 F.Supp.3d 10, 13 (D.D.C. 2018). The Court does not, however, accept the truth of any of the underlying allegations set forth in those records.

         1. Judicial Watch Charges

         In November 2012, the ODC “submitted proposed charges against” Plaintiff relating to his representation of three Judicial Watch employees in lawsuits against Judicial Watch. Dkt. 15-3 at 2 (Ex. 2 ¶ 2). The Hearing Committee determined that Plaintiff's representation of these individuals presented a conflict of interest in violation of Rule 1.9 because he had served as General Counsel of Judicial Watch when the events underlying the lawsuits took place. Dkt. 15-2 at 7 (Ex. 1). The Hearing Committee also found that Plaintiff's conduct “seriously interfer[ed] with the administration of justice, ” in violation of Rule 8.4. Id. at 1 (Ex. 1). The Hearing Committee recommended that Plaintiff be suspended for 90 days “with readmission contingent upon a showing of his fitness to practice law.” Id. at 2 (Ex. 1). The Board adopted the Hearing Committee's findings with respect to the conflict of interest charges but “conclude[d] that Disciplinary Counsel failed to prove the Rule 8.4(d) allegation.”[1] Id. at 3 (Ex. 1). Based on the Board's “own review of the evidence, [it] recommend[ed] that [Plaintiff] be suspended for ninety days with no fitness requirement.” Id. The matter is currently fully briefed and pending before the D.C. Court of Appeals.

         2. Sataki Charges

         In July 2017, Plaintiff was charged by the ODC with violating Rules 1.2(a), 1.4(b), 1.5(b), 1.5(c), 1.6(a)(1), 1.6(a)(3), 1.7(b)(4), 1.16(a)(3), and 8.4(c), arising from his representation of Elham Sataki in a sexual harassment suit against her former employer, Voice of America (“VOA”). Dkt. 15-4 at 2-4, 7, 11 (Ex. 3). According to the Specification of Charges, Plaintiff told Sataki in January 2010 that he would “represent her on a contingent fee basis and . . . take 40% of any recovery, ” but he did not set forth those terms in writing. Id. (Ex. 3 ¶¶ 2-3). The Specification of Charges further alleged that, after “Sataki declined [Plaintiff's] entreaties to establish a romantic relationship, ” he “informed [her] that he would change the terms . . . and require 50% of any recovery she may receive.” Id. (Ex. 3 ¶¶ 6-7). Based on this alleged conduct, the ODC charged Plaintiff with violating Rules 1.5(b) and (c) for failing to set forth the terms of his representation in writing and Rule 1.7(b)(4) for allowing his “professional judgment on behalf of his client” to be “adversely affected by [his] own personal interests.” Id. at 3-4 (Ex. 3 ¶ 8).

         The Specification of Charges also alleged that Plaintiff failed to abide by Sataki's wishes to pursue her case “simply and quietly” and, instead, used her case to further his own personal interests in violation of Rules 1.2(a), 1.4(b), and 1.7(b)(4). Id. at 5-8 (Ex. 3 ¶¶ 14, 16, 22, 34). The ODC alleged that Plaintiff named numerous, unnecessary defendants in Sataki's suit, including Hillary Clinton, id. at 6 (Ex. 3 ¶¶ 18-19); filed a motion to have the case reassigned because the presiding judge allegedly “harbor[ed] an animus” against him “because of her association with former President . . . Clinton and former First Lady Hillary Rodham Clinton and because of certain lawsuits [Plaintiff] had filed against the Clintons, ” id. at 6-7 (Ex. 3 ¶ 21); and moved to disqualify the judge on the same ground, id. at 4-5 (Ex. 3 ¶ 13). After Sataki terminated Plaintiff in August 2010, id. at 7 (Ex. 3 ¶ 26), moreover, Plaintiff allegedly refused to withdraw from the case and continued to litigate on Sataki's behalf, in violation of the above rules as well as Rule 1.16(a)(3), id. at 7-8 (Ex. 3 ¶¶ 27-33).

         Finally, Plaintiff was charged with violating Rules 1.2(a), 1.6(a)(1) and (3), 1.7(b)(4), and 8.4(c) for publishing eleven articles about the case in an online periodical, WorldNetDaily. Id. at 8-12 (Ex. 3 ¶¶ 36-48). Each article allegedly “described, in part, his representation of [Sataki] and her claims against VOA.” Id. According to the Specification of Charges, in an article published on December 25, 2010, Plaintiff also “falsely reported that the presiding judge had ‘dishonestly denied, without factual or legal bas[is] . . . [the] request for [Sataki] to be put back at work at the Los Angeles office [of] VOA.'” Id. at 11 (Ex. 3 ¶ 47) (emphasis added). With respect to each of the articles, Sataki allegedly complained that she “did not know [Plaintiff] would author” the article; that she “did not consent” to its publication; and that she was “embarrassed by [Plaintiff's] disclosure of facts that he gained during the course of the representation.” Id. at 9-12 (Ex. 3 ¶¶ 37-47).

         The Hearing Committee conducted hearings on these charges and issued a preliminary finding that Plaintiff had violated at least one of the Rules at issue. Dkt. 15 at 13-14. Both parties then submitted post-hearing briefing addressing, among other things, the presence of any “aggravat[ing]” evidence, such as a prior disciplinary record. Id. at 14. The Hearing Committee has yet to submit any findings and recommendations to the Board, and Defendants note that “it is difficult to predict with any degree of accuracy when the Hearing Committee” will do so. Id.

         3. Bundy Charges

         Finally, in August 2018-after this case was filed-the ODC charged Plaintiff with violating Rules 3.1, 3.3(a), 8.1, 8.4(a), 8.4(c), and 8.4(d), in connection with his repeated attempts to convince the U.S. District Court for the District of Nevada to admit him pro hac vice to represent his client, Cliven Bundy. Dkt. 15-3 (Ex. 2). According to the Specification of Charges, the district court in the Bundy case found that Plaintiff's “statement that the matter regarding Judicial Watch” was “likely to be resolved in [his] favor” and that no disciplinary action had been taken “was ‘misleading and incomplete.'” Id. at 6 (Ex. 2 ¶ 19). After his petition to appear pro hac vice was twice denied by Chief Judge Gloria Navarro of the U.S. District Court for the District of Nevada, Bundy filed a Bivens action against her, alleging that the denial was motivated by “political reasons.” Id. at 8 (Ex. 2 ¶ 23). Plaintiff also filed several successive petitions for writs of mandamus with the U.S. Court of Appeals for the Ninth Circuit and with the U.S. Supreme Court, seeking orders compelling the district court to admit him and to set aside the decisions finding that he had misled the district court. Id. at 9-16 (Ex. 2 ¶¶ 27- 52). In his fourth petition before the Ninth Circuit, Plaintiff allegedly argued that “Judge Bybee's order” denying his previous petition to the Ninth Circuit should be vacated because of Judge Bybee's “extrajudicial bias.” Id. at 13 (Ex. 2 ¶ 46). According to the Specification of Charges, Plaintiff's “claim that Judge Bybee had extrajudicial bias” included “a number of assertions that had no basis and were frivolous.” Id. at 14 (Ex. 2 ¶ 47). Finally, the Specification of Charges alleges that Plaintiff also made certain misleading or incomplete representations in connection with his petitions for writs of mandamus. Id. at 15 (Ex. 2 ¶¶ 48-49). These charges are currently pending.[2]

         C. Present Lawsuit

         According to Plaintiff, the above charges reflect Defendants' “pattern and practice of abusing and exceeding their position of authority . . . to . . . intentionally violate [his] constitutional and other rights by selectively prosecuting [him] because of his political activism, free speech, and gender.” Dkt. 10 at 38 (Amd. Compl. ¶ 39). His amended complaint asserts the following causes of action against the ODC and the individual defendants: abuse of process, malicious prosecution, and violations of the First and Fourteenth Amendments to the U.S. Constitution. Id. at 21-24 (Amd. Compl. ¶¶ 96-114). In support of his claims, Plaintiff primarily offers conclusory assertions. He avers, for instance,

It is clear that Defendants' goal is to prevent Mr. Klayman from being able to practice law because they do not agree with his political and other beliefs, and in retaliation for his gender during this highly charged period when men are frequently presumed guilty of even provably false allegations.

Id. at 10 (Amd. Compl. ¶ 43). He further alleges:

Because of Mr. Klayman's conservative beliefs, Defendants Herman and Porter, who are Deputy Bar Disciplinary Counsel, in particular, apparently see him as anti-woman, which is not true. It was apparent to Mr. Klayman that Defendants Herman and Porter in particular wanted to take disciplinary action against him due to his gender and activism, and thus enlisted the other Defendants, including ...

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