Rules of Holes. Rule the First. When you are in one, stop digging.
Now two things worth saying by way of preface, I guess, before further explanation.
First, I’ve dealt with my share of problematic lawyers over the years (so too probably have you), including the type that doesn’t know when to say when, so the subject of this post could theoretically be about lots of lawyers but it happens to be about a lawyer I have certainly never met before. He is (in)famous though and if you’d like to know more about his background than just what you can glean from the scathing opinion of the Ninth Circuit we’re about to discuss, you could try his Wikipedia page.
Second, I’ve never been denied pro hac vice admission before so I can’t definitively say it would be easy for me to live with such an outcome. It’s the kind of thing you have to disclose on all sorts of forms for the rest of your legal career, but I’d like to think that I’d navigate the situation better than the story about to be told.
With that out of the way, attorney Larry Klayman, having already been denied pro hac vice admission in federal district court in Nevada and having already unsuccessfully appealed that ruling to the Ninth Circuit (840 F.3d 1034 (9th Cir. 2016)) and having unsuccessfully asked the U.S. Supreme Court to weigh in, is back in the limelight with a new ruling from the Ninth Circuit on March 30, 2017, denying his “emergency” petition for a writ of mandamus to be permitted to represent Cliven Bundy, a pretty infamous character himself.
Literally, one week after the Supreme Court opted not to hear him, Mr. Klayman filed an emergency writ – ostensibly contending that he was speaking for Bundy — saying there were “fundamentally changed circumstances that underscore [his] compelling need to have a full legal defense team, including Klayman, ready and able to represent him at trial.” The first part of how irregular this would be is immediately explained by the Ninth Circuit as follows:
First, Klayman purports to be representing Bundy in his request for a writ of mandamus, Bundy has counsel of record, Nevada attorney, Bret O. Whipple. Whipple, however, did not sign the motion, file an affidavit, or otherwise join in any way Bundy’s latest motion. Indeed, Bundy, in his reply filed on March 23, explains that his current attorney refused to file a new pro hac vice application on behalf of Klayman because Whipple did not want to “tarnish his reputation.”
That’s kind of a record-scratch moment for most attorneys. If your local counsel believes that participating in your efforts would tarnish their reputation . . . well, some soul-searching would seem to be in order.
The Ninth Circuit pointed out an additional procedural problem with claiming that there were new emergency circumstances but not first going back to the district court thus recognizing that the writ of mandamus is effectively requesting relief because the district court did not sua sponte decide to change its mind on Klayman’s admission, but then quickly proceeds to the “merits” of the motion in a blistering example of laconic understatement:
So construing Bundy’s motion, and because the district court and government filed answers to the petition, we will proceed to the merits.
There are no merits.
I mean, ouch. Right? The Ninth Circuit did go forward though to explain in more detail that none of the three claims of supposed “changed circumstances,” were anything of the sort.
Along the way, the Ninth Circuit said a few further things that, I think, actually do justify focusing on this ruling as being something other than piling on the lawyer at the heart of it.
Among the reasons Klayman offered as being the emergency requiring mandamus was that Bundy’s existing Nevada counsel of record somehow did not have any federal trial experience. The short version of the Ninth Circuit’s rejoinder to that allegation was:
The assertions made by Bundy about his counsel are demonstrably false. Either Klayman has failed to ascertain the facts by, for example, talking with Whipple or looking at Whipple’s website, or he has deliberately misled this court. Neither option paints Klayman in a good light. At best, Klayman has shown such a casual acquaintance with the facts that he is guilty of at least gross negligence in his representation to this court.
The Ninth Circuit went on to explain succinctly, but positively, the extensive federal criminal experience of Mr. Whipple. In so doing, it dropped in a footnote one of the points that makes this whole endeavor worth writing about. A point that lawyers need to bear in mind when they think about the role of technological competence in their practice:
This court had little difficulty confirming most of these facts from Whipple’s website, his LinkedIn account, and PACER. . . .That Klayman, evidently, failed to use the most primitive modern tools to verify his serious accusations that counsel of record was not qualified is inexcusable.
When websites and LinkedIn accounts are referred to by a federal Court of Appeals as among “the most primitive modern tools,” lawyers need to take note about what that can mean for their practice in a variety of respects.
The second point that is worth noting over and above how it relates to Mr. Klayman himself is the interplay between the Sixth Amendment right to counsel and the ability to impose rules on pro hac vice admission. One member of the Ninth Circuit did dissent from this ruling, on the same grounds for dissent from the prior appeal of the pro hac vice denial – Bundy’s Sixth Amendment right to counsel. This point is addressed by the Ninth Circuit in a footnote as well and that seems hard to argue with:
We do not evaluate constitutional rights in a vacuum. Bundy may add whatever counsel he wishes so long as they satisfy Nevada’s minimal pro hac vice rules. Klayman has not satisfied those rules, so Bundy will have to look to other Nevada-qualified counsel to aid his defense.