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This Report Is Not a Final Order of Discipline* District of Columbia Court of Appeals Board on Professional Responsibility Ad Ho

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This Report Is Not a Final Order of Discipline* District of Columbia Court of Appeals Board on Professional Responsibility Ad Ho THIS REPORT IS NOT A FINAL ORDER OF DISCIPLINE* DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY AD HOC HEARING COMMITTEE July 24, 2019 In the Matter of: : : LARRY E. KLAYMAN, : : Board Docket No.17-BD-063 Respondent. : Bar Docket No. 2011-D028 : A Member of the Bar of the : District of Columbia Court of Appeals : (Bar Registration No. 334581) : * Consult the ‘Disciplinary Decisions’ tab on the Board on Professional Responsibility’s website (www.dcattorneydiscipline.org) to view any subsequent decisions in this case. TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY ...................................................................... 2 II. PROCEDURAL HISTORY....................................................................................... 2 III. FINDINGS OF FACT ................................................................................................ 4 A. BACKGROUND OF THE REPRESENTATION .......................................................... 4 B. ESTABLISHMENT OF THE ATTORNEY-CLIENT RELATIONSHIP -- JANUARY 2010...................................................................................................................... 8 C. INITIAL STEPS AND DEVELOPMENTS IN THE REPRESENTATION -- FEBRUARY- MARCH 2010 ...................................................................................................... 11 D. DEVELOPMENTS DURING APRIL AND MAY 2010 ............................................. 18 E. DEVELOPMENTS DURING JUNE AND JULY 2010 ............................................... 41 F. DENOUEMENT: AUGUST 2010 – JANUARY 2011 ............................................... 54 IV. RECOMMENDED CONCLUSIONS OF LAW .................................................... 64 A. THE CONFLICT OF INTEREST CHARGE ............................................................. 64 B. THE CLIENT DECISIONS AND LAWYER-CLIENT CONSULTATION CHARGES .. 92 1. The July 26, 2010 Motion to Disqualify ....................................... 95 2. Respondent’s Steps in the BBG Action ...................................... 101 3. The World Net Daily Articles ....................................................... 104 C. THE FEE ARRANGEMENT CHARGES ............................................................... 115 D. THE REPRESENTATION TERMINATION CHARGE ........................................... 118 E. THE CONFIDENTIALITY CHARGES RELATED TO THE WND ARTICLES ........ 122 F. THE DISHONESTY CHARGE ARISING OUT OF THE DECEMBER 25, 2010 WND ARTICLE .......................................................................................................... 129 V. RECOMMENDATION AS TO SANCTION ....................................................... 134 A. THE FACTORS TO BE CONSIDERED ................................................................. 134 B. ANALYSIS ......................................................................................................... 135 i 1. Seriousness of the Misconduct .................................................... 135 2. Misrepresentation or Dishonesty ................................................ 136 3. Respondent’s Attitude Toward the Underlying Misconduct ... 136 4. Prior Discipline ............................................................................. 141 5. Mitigating and Aggravating Circumstances ............................. 142 6. Number of Violations ................................................................... 145 7. Prejudice to the Client ................................................................. 146 C. RECOMMENDED SANCTION ............................................................................. 149 1. The Appropriate Sanction for Respondent’s Rule Violations . 149 2. Whether There is a Need for a Fitness Requirement ............... 161 a. The Court of Appeals’ Guidance ............................................. 162 b. Analysis of the Roundtree Factors ........................................... 165 (i) The nature and circumstances of the misconduct for which Respondent was disciplined. .................................. 165 (ii) Whether Respondent recognizes the seriousness of the misconduct. ........................................................................ 165 (iii) Respondent’s conduct since discipline was imposed, including the steps taken to remedy past wrongs and prevent future ones.. .......................................................... 166 (iv) Respondent’s present character.……………………….166 (v) Respondent’s present qualifications and competence to practice law.. ...................................................................... 166 (a) Respondent’s litigation tactics. ................................... 167 (b) Respondent’s vexatious pleadings.. ............................ 169 (c) Respondent’s abusive delaying tactics. ....................... 175 (d) Respondent’s disingenuous pleadings. ....................... 180 c. Recommendation as to Imposition of Fitness Requirement. ... 182 VI. CONCLUSION ....................................................................................................... 182 ii REPORT AND RECOMMENDATION OF THE AD HOC HEARING COMMITTEE I. INTRODUCTION AND SUMMARY Respondent Larry E. Klayman is charged in a four-count Specification of Charges with multiple violations of the Rules of Professional Conduct for the District of Columbia (Rules) -- specifically 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). This disciplinary matter arises out of Respondent’s representation of a client in 2010 and perhaps for a few weeks before and after 2010. As fully discussed hereinafter, the Hearing Committee unanimously recommends that the Board conclude that Disciplinary Counsel has established by clear and convincing evidence that Respondent violated one or more of 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), and 1.16(a)(3) in a total of at least fourteen instances or sets of circumstances.1 The Hearing Committee also recommends that Respondent be suspended from the practice of law under the aegis of the District of Columbia Bar for a period of 33 months and that his readmission to the Bar be conditioned upon his establishing that he has been rehabilitated and is fit to resume the practice of law. II. PROCEDURAL HISTORY Disciplinary Counsel filed its Specification of Charges (Sp. Ch.) on July 20, 2017, and it was served on Respondent on September 29, 2017. Respondent filed his 1 We also recommend that the Board find that Disciplinary Counsel has not proven by clear and convincing evidence that Respondent violated Rule 8.4(c). 2 Answer on December 8, 2017. Opening statements and Disciplinary Counsel’s evidence were heard on May 30 and 31 and June 1, 2018. Respondent’s case was presented on June 25, 26, and 27. Closing arguments for Disciplinary Counsel and Respondent were presented on June 27. The members of the Ad Hoc Hearing Committee were Warren Anthony Fitch, Esquire, Chair; Mary C. Larkin, Public Member; and Michael E. Tigar, Esquire, Attorney Member. Assistant Disciplinary Counsel H. Clay Smith, III, Esquire, appeared on behalf of Disciplinary Counsel; Frederick J. Sujat, Esquire, appeared on behalf of Respondent, who nevertheless assumed the major litigation responsibilities during the hearing. Disciplinary Counsel submitted Exhibits (DX) A-D, 1-54,2 and Supplemental Exhibits (SX) 1-38 -- all were admitted into evidence. Tr. 276-79, 315, 320, 842, 1417-20, 1617-18; HC Order July 11, 2018 (admitting Disciplinary Counsel’s Exhibit 54 into evidence). Respondent submitted Exhibits (RX) 1-30, Supplemental Exhibits (RSX) 1-6, and a pleading filed earlier in the case3 -- all were admitted as well. Tr. 621-23, 1263. Disciplinary Counsel filed its Proposed Findings of Fact, Conclusions of Law, and Recommendation as to Sanction on August 24, 2018. Respondent filed his on October 30, 2018. Disciplinary Counsel filed its Reply on November 13, 2018. Respondent filed his Surreply on November 20, 2018. 2 During the Hearing on June 27, Disciplinary Counsel marked for identification Respondent’s prior discipline in Florida as Exhibit 53. We hereby admit this into evidence but it is relevant only to our Sanction analysis. 3 The pleading is titled “Supplemental Response of Disciplinary Counsel to Respondent’s Motion for Modest Continuance and to Reschedule Hearing” (RS) and was filed on May 14, 2018. 3 III. FINDINGS OF FACT A. BACKGROUND OF THE REPRESENTATION 1. Ms. Elham Sataki, the client in the matter giving rise to this disciplinary proceeding, was born and raised in Iran, where she lived for approximately 12 years. Tr. 69.4 She and her family moved to Sweden after the 1979 Iranian revolution and she later graduated from the University of Stockholm with a degree in psychology. Tr. 69-70. Ms. Sataki subsequently moved to the United States and trained in cosmetology in Texas. Tr. 71. 2. Ms. Sataki moved in approximately 2001 to Los Angeles, where she lived for approximately six years and worked both in cosmetology and as an anchor or co-host on news and politics programs on an Iranian-oriented network and another network. Tr. 70-72. 3. By letter dated October 16, 2007 (by which time she had moved to Arlington, VA and done some broadcasting work for the Voice of America (VOA)), Ms. Sataki applied for the position of International Broadcaster (Persian) at the International Broadcasting Bureau (IBB) of VOA. RX 901-07.5 Ms. Sataki received 4 “Tr.” refers to the six-volume, consecutively paginated transcript of the evidentiary hearing in
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