[00:00:00] Speaker 04:
Case number 22-7123, Larry Elliot Klayman at balance versus Julia Porter et al.

[00:00:08] Speaker 04:
Mr. Klayman for the at balance, Mr. Coterno for the at police.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
Just to let everyone know, Judge Rogers is participating telephonically today.

[00:00:19] Speaker 03:
Mr. Klayman, you may begin.

[00:00:22] Speaker 02:
Good morning to my colleagues and to council.

[00:00:24] Speaker 02:
This is Judge Rogers.

[00:00:29] Speaker 05:
Good morning.

[00:00:30] Speaker 05:
May it please the court, Judge Millen, Judge Rao, Judge Rogers.

[00:00:36] Speaker 05:
This is a very important case, not just with regard to me, but with regard to all members of the District of Columbia Bar, or for that member, any lawyer or litigant who seeks to assert his first, fifth, and 14th Amendment rights.

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And I respectfully request

[00:00:54] Speaker 05:
that when you issue your decision that you issue that in detail and go through the various points that have been set forth in our briefs.

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Those are very detailed and there are a number of issues.

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I don't have a lot of time today, but I'm gonna highlight.

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Number one, preliminary and permanent injunctions were issued, preventing me from bringing lawsuits initially in federal court with regard to just four particular matters, cases regarding the bar.

[00:01:23] Speaker 05:
Judge Wilkins, excuse me.

[00:01:27] Speaker 05:
Judge went way beyond the lower court judge and what was before the court at that time.

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But importantly, and here's the important issue, the preliminary injunction was issued a one-line order without any evidentiary hearing under Rule 65, much less

[00:01:44] Speaker 05:
findings of fact or specific conclusions of law.

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Consequently, his preliminary injunction is void as a matter of law.

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He did not follow the federal rules of civil procedure.

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Now that's even more true with regard to the permanent injunction which he issued.

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And, of course, we know there's a very high bar in declaring someone a vexatious litigant.

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Cases of Durow versus Mitchell, 289, F-sub, 3rd, 2nd, DDC, 2018, Enray-Powell, 851, F-second, 427.

[00:02:18] Speaker 05:
That's the District of Columbia Circuit Court case.

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Enray-Oliver, which is 682, Federal 2nd, 443, 3rd Circuit.

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We cited that.

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It's extreme to be able to enjoin someone.

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particularly who's a pro se litigant under the sixth amendment from asserting his or her rights.

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But here's why you needed an unabated entry hearing.

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There were issues of fact here.

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Number one, the issue is whether I had filed relevant to this case, frivolous lawsuits.

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I was not sanctioned in any of those cases.

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No one ever found them to be frivolous at all.

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And development of the facts of what was at issue is extremely important.

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And again, I turn your attention to pages 20 to 27 of our initial brief.

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I trust that you will read that very, very thoroughly, and I'm sure you will, because that's the heart of it.

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Mr. Fleming, do you understand the authority for the injunction here to be based on the inherent authority of the courts, of Article III courts?

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What do you think is the source

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of the injunctive authority here.

[00:03:24] Speaker 05:
There is no source here.

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Not in this instance.

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There's no source.

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This was totally improper and illegal decision in all due respect.

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So do you think that the test from Henry Powell is the relevant test?

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Or is there a different test that we should apply?

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No, it's completely relevant.

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And so is Duro versus Mitchell.

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And so is the Oliver case, the cases that we cited.

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But let me just get to the heart of the issue.

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And that's why I ask you to look at pages 20 to 27.

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I deserve an evidentiary hearing as to whether I had filed frivolous cases or pleadings.

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I deserve an evidentiary hearing as to whether there was abuse of process by the District of Columbia Bar Disciplinary Apparatus.

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I deserve an evidentiary hearing with regard to my conduct towards judges.

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I have always been respectful.

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Yes, I have moved to disqualified judges in this.

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But I've been respectful and I'm respectful now.

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I'm inexpensive.

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What was being spent?

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I'm the little guy.

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I'm the guy that's being hurt.

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My time is being taken away to the point of trying to drive me into bankruptcy with everything that I've got to do with this agenda to try to remove me from the practice of law.

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I deserve an evidentiary hearing on the issue of whether there was bad faith under the younger doctrine, whether or not the

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District Columbia Bar Council outside of his authority was sending letters to other courts, ex parte that I didn't even know was being sent where I practice, which cut me off from the practice of law before I had an opportunity to even exhaust all my appellate rights.

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Can I ask you, with respect to the younger issue and the injunctive relief that you seek in your complaints, are you seeking an injunction against

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The future against disciplinary proceedings is number one, or the future sending of these letters to other bars, or just an injunction to get a, I know you say you haven't seen a copy of these letters.

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What is the injunction?

[00:05:25] Speaker 05:
Good question, Your Honor.

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In this case, in this case, I was seeking just an injunction to stop cautiously interfering.

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It was equitable relief I saw.

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wasn't even financial damage.

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And how?

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By having them issue no letters, no more?

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By sending letters, by sending communications that I didn't even know about.

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And I requested those letters to be provided to me so I would know.

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I just want to break this down just so I understand carefully.

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And it can be, you can say conjunctions against all these things.

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I just want to know in your words.

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Yes.

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So is one thing for which you wish an injunction is to get

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a copy of the letter or letters that have been sent.

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Am I correct in understanding that?

[00:06:03] Speaker 05:
And to stop interfering.

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Exactly.

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Am I correct?

[00:06:06] Speaker 03:
Yeah.

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Okay.

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In part.

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And then, okay, I'm not limiting you in two.

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Yeah.

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It sounds like to stop future issuance of letters to other bars.

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Is that right?

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in these particular proceedings that were in front of the court.

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Do you have any reason to think that these are continuing to go or out at this point?

[00:06:25] Speaker 05:
I do, yes, because they've loaded up disciplinary proceedings in addition to this.

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I do have.

[00:06:30] Speaker 03:
So those will be from other disciplinary proceedings, not from this proceeding?

[00:06:34] Speaker 05:
Yes, but in this case, I was seeking them on those particular matters in California and in Texas, and at the Ninth Circuit.

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And, you know, just to tell you about the bad faith, I just asked for copies of what was being sent, and they refused to provide it, disciplinary counsel.

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But what is a guy to do, so to speak, under the circumstance?

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They say the letter is a matter of public record.

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Have you not been able to find it?

[00:06:59] Speaker 05:
It's not a matter of public record.

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In some of the courts, in some of them, ultimately, I was able to obtain them myself after the fact.

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They were not initially.

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I was cut off.

[00:07:11] Speaker 03:
But you want injunctive relief.

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So have you already seen the letters that were sent to Texas and California?

[00:07:17] Speaker 05:
I have not.

[00:07:19] Speaker 03:
Oh, you said you were able to see some letters.

[00:07:20] Speaker 03:
Which ones?

[00:07:21] Speaker 05:
I think maybe the Northern District of Texas, I eventually got to see one of the letters, but I haven't seen them otherwise.

[00:07:28] Speaker 05:
No, I have not.

[00:07:29] Speaker 05:
But that's not the issue.

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The issue is not the letters as much as the fact that the interference is being caused.

[00:07:34] Speaker 03:
Well, the issue for injunctive relief.

[00:07:36] Speaker 05:
Yes, I'm asking for injunctive relief.

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That's what I was.

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And that raises the question.

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There was no reason to dismiss my case.

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There was no immunity.

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I cited several cases, including the Supreme Court case.

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that federal judges are not immune from immunity, and neither are bar counsel.

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In fact, the case that was brought in California, when that occurred with the Ninth Circuit, for instance, California has no immunity with regard to bar counsel prosecutors.

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There's no immunity there.

[00:08:10] Speaker 05:
So you're gonna have to face the issue of the choice of law here too.

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That's been briefed.

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The choice of law.

[00:08:14] Speaker 04:
That's been briefed, Mr. Klayman.

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One question I had is whether,

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the DC bar officials here should be viewed as federal officials, because the DC courts are Article I courts created by Congress.

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So the briefing assumes that they are district officials, which I guess is like a quasi-state.

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But one question I had is whether federal common law should apply to these officials, because they may be federal officials.

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I was wondering if you had anything else about that.

[00:08:47] Speaker 05:
We didn't reach that issue in our briefs, Your Honor.

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I can do a supplementary brief if you'd like.

[00:08:51] Speaker 05:
That's an interesting question.

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I don't believe that it will be treated as federal, but in any event, the immunity which was accorded by the D.C.

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Court of Appeals is void.

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It does not exist.

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You cannot create that out of old cloth.

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The D.C.

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City Council never gave them immunity, and there's no basis to claim immunity.

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it's given to themselves.

[00:09:15] Speaker 03:
And that is why they can already decided that question, haven't we?

[00:09:20] Speaker 05:
I don't believe you have.

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And if you did, you can certainly reverse it because it would be incorrect.

[00:09:28] Speaker 03:
You can't reverse another panel.

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Judge can't decide to give him or herself immunity.

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And just to be brief, I don't have a lot of time left here, but you know, we started this country because King George III gave immunity to his judges that were rubber stamping his edicts.

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That was the reason why we have a jury system, as a matter of fact.

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Judges cannot accord immunity to themselves.

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We fought a revolution, in large part, over that issue.

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But let me get to another point here, which is extremely important, and I can't emphasize it enough, is that Judge Walden then issued, in order recently,

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brought these cases together.

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And it took nine months to issue it.

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This is with regard to another disciplinary proceeding where I filed a Rule 60 complaint to set aside a decision, a suspension, which was based, as I alleged, on fraud and prosecutorial misconduct.

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And he enjoined that as well.

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He went to a state proceeding.

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He had no authority to do so.

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And he won't even be on that if you look at his order.

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He enjoins any other form.

[00:10:37] Speaker 05:
Does that mean I can't file a bar complaint against someone that's acting improperly?

[00:10:42] Speaker 05:
He has lost sight of his authority in all due respect to Judge Walton.

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And a federal judge simply cannot do that.

[00:10:50] Speaker 05:
He has cut off my constitutional rights to defend myself against a greater enemy.

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This law firm here, Aiken Gump, a mega firm, represents the bar free, yet they claim they've been hurt.

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pro bono.

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They'll never have a bar complaint go forward against them, for sure.

[00:11:07] Speaker 05:
But I have to deal with it.

[00:11:09] Speaker 05:
And that, Your Honor, is why you know who I am, and I'm a conservative activist, and I have been critical of this court, and you've been critical of me.

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But I have not been sanctioned here.

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And I hope that you can put the partisanship aside, because this decision that you're going to reach, and I hope that you'll be reasoned.

[00:11:25] Speaker 05:
It won't just be, you know, claiming you lose.

[00:11:27] Speaker 05:
OK, sorry.

[00:11:28] Speaker 05:
This is going to have far-reaching implications, not just for me.

[00:11:32] Speaker 05:
But for anybody, it goes far beyond me.

[00:11:36] Speaker 05:
And that's the matter that is very important.

[00:11:38] Speaker 05:
Do I have any time left?

[00:11:40] Speaker 03:
You don't, but I'll give you a couple of minutes for rebuttal.

[00:11:42] Speaker 03:
We're going to hear from you.

[00:11:43] Speaker 03:
I ask for three minutes.

[00:11:44] Speaker 03:
Thank you.

[00:11:50] Speaker 03:
Dr. Paterno?

[00:11:59] Speaker 00:
Good morning, Your Honors.

[00:12:00] Speaker 00:
Live material representing defendants at Pell Ease.

[00:12:04] Speaker 00:
Your Honors, in this case, the district court acted correctly and certainly did not abuse its discretion in issuing a narrowly tailored refiling injunction requiring Mr. Klayman to seek leave of court before filing another claim against these specific defendants or other DC bar related officials that collaterally attack ongoing disciplinary proceedings.

[00:12:28] Speaker 00:
The district court bent over backwards to make sure that it was protecting Mr. Clemens' rights while also protecting defendants against further frivolous or harassing litigation.

[00:12:39] Speaker 00:
It considered hundreds of pages of documents opposing defendants' motions.

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It held an hour and a half long hearing.

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It considered.

[00:12:50] Speaker 04:
With respect to these relitigation type of injunctions, I mean, the number of the record that was created here by the district court

[00:12:58] Speaker 04:
does not rise to the level of the other types of cases where we have upheld such injunctions, which often involve dozens or hundreds of lawsuits.

[00:13:10] Speaker 04:
And the rationale behind those injunctions is really to protect the inherent authority of the courts, not to protect defendants that may be sued.

[00:13:22] Speaker 04:
So how does this injunction here fit within those cases?

[00:13:25] Speaker 04:
I mean, I know there are a couple

[00:13:27] Speaker 04:
cases that were cited with a small number of suits.

[00:13:30] Speaker 04:
But here, the number is very different from the types of cases in which these types of injunctions are usually issued.

[00:13:37] Speaker 00:
Sure, Your Honor.

[00:13:38] Speaker 00:
A few responses to that.

[00:13:40] Speaker 00:
One is, and certainly in Ray Powell, the case where this court set forth the three-factor test, it did say that the court needs to look at the number and also the content of the filings.

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And the following year, in a case that we cite called Kuyper, the court

[00:13:56] Speaker 00:
looked at only a couple cases that had been filed there, a couple prior filings, and conceded the number is not as great as it was in Powell.

[00:14:05] Speaker 00:
But nevertheless, because of the content of those filings, because of the numbers of motions that were filed in each case, because of the harassing nature of the filings, that that was adequate for a pre-filing injunction.

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And this court is not hesitated to affirm

[00:14:18] Speaker 00:
cases over and over to affirm district court decisions over and over issuing pre filing injunctions in the where there's a number of case prior filing similar to here.

[00:14:29] Speaker 04:
For example in this case is different though because they the DC bar continues to bring suits against Mr. Klayman.

[00:14:36] Speaker 04:
So there are there are new new actions being taken against Mr. Klayman against which he is

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you know, he is defending himself.

[00:14:45] Speaker 04:
So, so that's also different from a context in which a plaintiff might be just bringing new, you know, new litigation as a kind of, you know, as a kind of sword rather than as a shield.

[00:14:56] Speaker 04:
Sure.

[00:14:57] Speaker 04:
Well, the analysis.

[00:14:58] Speaker 00:
Well, to be clear, all of the cases consolidated and under review here in this appeal, all concerned

[00:15:05] Speaker 00:
the three disciplinary proceedings that this court already considered in Claimant 1 and 2.

[00:15:11] Speaker 00:
And I think that gets to the other reason why this case is different, Your Honor, perhaps, than some of Henry Powell or some of the other cases.

[00:15:19] Speaker 00:
And that's the fact that Mr. Claimant's filings in this case directly contradict this court's prior holdings.

[00:15:27] Speaker 00:
It directly contradicts the DC Superior Court's prior holdings.

[00:15:31] Speaker 03:
The conduct at issue right now

[00:15:34] Speaker 03:
and to which this presuit filing injunction pertains is the conduct of sending disciplinary notices from the bar to other bars of which Mr. Klayman is a member.

[00:15:55] Speaker 03:
Have any of the prior cases that you reference

[00:16:00] Speaker 03:
that he has brought involved a challenge to that sort of post adjudicatory conduct.

[00:16:08] Speaker 00:
Yes, Your Honor.

[00:16:08] Speaker 00:
And in the DC Superior Court case that we all claim in three,

[00:16:13] Speaker 00:
The court there said, in asserting that defendant Porter's, that's the same defendant here, defendant Porter's conduct deviated from her scope of work as bar counsel plaintiff, Mr. Klayman, directs the court's attention to defendant Porter's notification of plaintiff's 30-day suspension implemented by the DC Court of Appeals.

[00:16:32] Speaker 03:
This court adjudicated that issue.

[00:16:34] Speaker 03:
This court hasn't adjudicated that issue, no, Your Honor, but- No, there's maybe two cases where he's raised it, none of which have yet been resolved.

[00:16:41] Speaker 00:
Well, Your Honor, the issue that was resolved and well, and to be clear in that DC Superior Court case, Mr. Klayman this morning said he had never been sanctioned before.

[00:16:50] Speaker 00:
He actually was sanctioned in that case.

[00:16:52] Speaker 03:
That's beside my point right now, which is on this question of sending letters.

[00:16:59] Speaker 00:
Right.

[00:16:59] Speaker 03:
That's new.

[00:17:01] Speaker 00:
That specific issue is new.

[00:17:03] Speaker 00:
Yes, Your Honor.

[00:17:04] Speaker 03:
It has not yet been before this court.

[00:17:06] Speaker 00:
That specific issue hasn't been before the court.

[00:17:09] Speaker 03:
And it's not covered by any of our prior decisions.

[00:17:14] Speaker 00:
That factual issue has not been covered.

[00:17:16] Speaker 03:
That legal issue also has not been covered.

[00:17:19] Speaker 00:
Well, the legal issue of defendant's absolute immunity has been covered by this court, and the court made clear... Well, I'm not sure if that's true.

[00:17:29] Speaker 03:
The immunities that we've spoken about before have involved the

[00:17:34] Speaker 03:
for lack of a better word, but with the adjudication of disciplinary violations or not.

[00:17:41] Speaker 03:
Now, the letters were all issued after those adjudicatory decisions became, disciplinary decisions were finalized.

[00:17:47] Speaker 03:
And they seem, at least in description, I understand from your brief, to be sort of an administrative action that is taken following the conclusion of the disciplinary proceeding.

[00:18:01] Speaker 03:
And so, you know, I don't know whether we,

[00:18:04] Speaker 03:
how we are to understand that type of action.

[00:18:07] Speaker 03:
Is it ministerial?

[00:18:09] Speaker 03:
Is it something that automatically happens every time someone has been adjudicated to have a disciplinary violation?

[00:18:18] Speaker 00:
Your Honor, the letter, you can find it in the record.

[00:18:21] Speaker 00:
It's at pages 28 and pages 128.

[00:18:24] Speaker 00:
There are copies of the letter that was sent from the bar.

[00:18:27] Speaker 00:
And you'll see that it's a standard letter.

[00:18:29] Speaker 00:
It's a form letter notifying other jurisdictions where Mr. Klayman had been admitted to practice of the sanction that had been imposed by the DC Court of Appeals.

[00:18:41] Speaker 00:
The sanction was final, Your Honor.

[00:18:43] Speaker 00:
But even in his own pleadings, Mr. Klayman

[00:18:47] Speaker 00:
continually insist that the proceedings were not final.

[00:18:50] Speaker 00:
He had filed a motion for clarification, a motion for rehearing.

[00:18:55] Speaker 00:
That's actually, as I understand it, that's one of his complaints is that the bar sent these, or excuse me, my client sent these out to the other jurisdictions before the proceedings were actually finalized.

[00:19:07] Speaker 03:
That doesn't mean that everything that's done within a bar issuing paychecks to his employees

[00:19:13] Speaker 03:
that be covered by the immunity provision.

[00:19:15] Speaker 03:
And you said these are form letters.

[00:19:17] Speaker 03:
My first question is, are letters like this sent in every case automatically when disciplinary conduct is issued?

[00:19:26] Speaker 00:
That's my understanding, Your Honor.

[00:19:27] Speaker 00:
It's sent as a matter of course.

[00:19:28] Speaker 03:
The rules don't ever anywhere talk about.

[00:19:31] Speaker 03:
There's no rule that actually talks about that happening.

[00:19:33] Speaker 03:
But you're representing that 100% of the cases where disciplinary sanctions are imposed

[00:19:42] Speaker 03:
suspension, whatever notifications are.

[00:19:46] Speaker 03:
I know the attorneys are supposed to notify their other bars, but right.

[00:19:49] Speaker 03:
So you're telling me that the bar itself, the DC bar itself automatically sends these letters out.

[00:19:56] Speaker 00:
It's my understanding the bar sends these certainly for final sanctions for suspensions issued by the District of Columbia Court of Appeals.

[00:20:05] Speaker 00:
I can't speak to other types of sanctions, but the bar rules do contemplate.

[00:20:10] Speaker 03:
Who sends it?

[00:20:11] Speaker 03:
You said it's a form letter.

[00:20:12] Speaker 03:
Is it done?

[00:20:14] Speaker 03:
It may be signed by somebody, but is it just sort of administrative staff that send these letters out?

[00:20:18] Speaker 00:
This was sent by one of the defendants, your honor, Mr. Bloom.

[00:20:22] Speaker 03:
Really, the defendant actually sort of put that in the envelope and sent it out, or was it maybe been signed by that person as a form letter, but who actually is administratively mailing these out?

[00:20:32] Speaker 00:
My understanding, your honor, is that Assistant Disciplinary Counsel Bloom actually, you know,

[00:20:38] Speaker 00:
looks at this, the sanction that was imposed, puts together the letter, mails it, and that's part of the reason.

[00:20:43] Speaker 03:
I'm asking the physical mailing of it out is done by Mr. Bloom or Ms.

[00:20:46] Speaker 03:
Bloom?

[00:20:49] Speaker 00:
Your honor, he at least oversees it.

[00:20:51] Speaker 03:
Obviously, I don't know if he, you know, walks into the, puts it in the mailbox himself or if there's- That's kind of relevant to whether it's going to be covered by, at least whether it's a novel question, whether it's covered by absolute immunity, if it's done at a ministerial level, if there's, I had assumed that there would be staff that would be in charge of folding and sealing envelopes and putting on stamps and putting them in the mailbox.

[00:21:19] Speaker 03:
Maybe I'm incorrect.

[00:21:20] Speaker 00:
I can't speak to it, Your Honor.

[00:21:22] Speaker 03:
I mean large volume if it's happening for everybody.

[00:21:27] Speaker 00:
Correct.

[00:21:27] Speaker 00:
Yes, I can't speak to the staff's involvement in the actual, as you said, putting in the envelopes, putting stamps.

[00:21:33] Speaker 00:
I assume you're probably right that there's staff that does that, but the record shows that Mr. Bloom is the person who

[00:21:39] Speaker 03:
uh who signed the letter and and directed it to the different jurisdictions but but again your honor it's it is a novel question in this court but the DC superior provided to you know cc the person who has been disciplined i mean it seems a little odd to me that there's been all this litigation where he says he can't even get a copy of it right well yet you're saying it's a matter of public records so why didn't the dc bar sent him

[00:22:05] Speaker 00:
I think for the reason you're saying it is a administrative burden to put all these letters together to send them out.

[00:22:12] Speaker 03:
And so one more copy to Mr. Klayman would have been too much.

[00:22:16] Speaker 00:
Well, Your Honor, they went out as the complaint alleges to all the jurisdictions in which Mr. Klayman or any other respondent who is sanctioned by the DC Court of Appeals, it goes out to all of those jurisdictions.

[00:22:30] Speaker 00:
And so it wouldn't just be one more letter.

[00:22:32] Speaker 00:
It would be times two for every jurisdiction.

[00:22:39] Speaker 02:
But let me ask you whether the rules provide some notice

[00:22:45] Speaker 02:
that dispensions by the DC Court of Appeals, those are a matter of public record, but in addition, the bar will notify the individual jurisdictions in which the member of the bar has an active membership.

[00:23:08] Speaker 02:
Is there no notice during the proceeding

[00:23:13] Speaker 00:
I your honor, I know that that DC bar rule 11 section 17 C contemplates that notice of informal admonitions could be sent by the by my my clients to other jurisdictions.

[00:23:28] Speaker 00:
And I think that that shows that, you know, at least formal admonitions as is the case here would be sent.

[00:23:36] Speaker 00:
And as Judge Mollett, as you mentioned, the opposite

[00:23:41] Speaker 03:
The fact that they list one specific thing is leading to notice.

[00:23:46] Speaker 03:
Whether it would make sense or not implies that other things are not subject to that notice.

[00:23:51] Speaker 03:
It's at least entirely ambiguous.

[00:23:53] Speaker 00:
Well, I think it shows, Your Honor, here the relevant question is whether defendants acted within the scope of their duties, within the scope of their authority.

[00:24:01] Speaker 00:
And I think here it shows, along with the ABA model rule, along with the rules, as you said, in every jurisdiction that require plaintiffs themselves to notify the courts, there are rules requiring the bar officials in every jurisdiction to obtain notice from other jurisdictions.

[00:24:20] Speaker 00:
So lots of these rules contemplate that there would be

[00:24:26] Speaker 00:
There's nothing specific in the record that says they will absolutely send it.

[00:24:32] Speaker 00:
You're right.

[00:24:33] Speaker 03:
But you said it's just automatic.

[00:24:35] Speaker 03:
So it's even almost a ministerial duty by whoever is signing the letter.

[00:24:40] Speaker 03:
Is that correct?

[00:24:41] Speaker 03:
Is it probably form letter, like you said, and that changed the name and what the discipline was, but it's not even, I mean, would any of the disciplinary council have even had discretion not to send the letter?

[00:24:53] Speaker 00:
Well, your honor, I think they, for the reason you said, because there's not a rule requiring it, I think that they could have discretion.

[00:25:01] Speaker 00:
I think as a matter of practice, they do send it out.

[00:25:03] Speaker 03:
The problem is we're dealing now with an unwritten rule that's not reflected in anything published.

[00:25:12] Speaker 03:
Do they have discretion or not?

[00:25:15] Speaker 00:
They do have discretion.

[00:25:17] Speaker 03:
But they sometimes don't send these letters out.

[00:25:20] Speaker 00:
Well, I think they have discretion, Your Honor, but I think as a matter of practice, they do send them to 100% of the time.

[00:25:27] Speaker 00:
That's my understanding, Your Honor.

[00:25:30] Speaker 03:
On what basis would they exercise discretion not to send a notice out?

[00:25:35] Speaker 00:
Well, I think if, for example, if the bar, well, Your Honor, the record doesn't show, it doesn't speak to that.

[00:25:44] Speaker 00:
I think the fact that they have done it in every case does not mean they don't have discretion.

[00:25:50] Speaker 02:
I'm sorry, council.

[00:25:53] Speaker 02:
Did you finish your response?

[00:25:55] Speaker 00:
Yes, your honor.

[00:25:56] Speaker 00:
The point I was making was just that the fact that they have discretion to send or not to send, there's no requirements to send, but that does not mean that the fact that they send them in every case as a matter of course, doesn't mean that they don't have the discretion.

[00:26:14] Speaker 02:
Well, my hypothetical would be where a very

[00:26:19] Speaker 02:
preeminent member of the bar is sanctioned.

[00:26:24] Speaker 02:
And there's no question because the member of the bar says so, and he immediately files an appeal, since this is outrageous, et cetera, and even going to take it to the Supreme Court.

[00:26:41] Speaker 02:
And let's just suppose a hypothetical.

[00:26:43] Speaker 02:
What I'm trying to understand in my own mind is,

[00:26:47] Speaker 02:
Suppose as far as the DC Court of Appeals is concerned, this lawyer should be suspended or debarred even.

[00:26:58] Speaker 02:
But the lawyer, looking at it objectively, has a nice argument, whether it's a procedural or legal objection to what happened.

[00:27:14] Speaker 02:
And a lot of these

[00:27:15] Speaker 02:
situations, as you know, that even come to this jurisdiction, to the DC bar, there are due process arguments that are raised.

[00:27:25] Speaker 02:
And that bar examines them to decide whether or not that, excuse me, that court decides whether or not it's going to apply complementary sanctions here.

[00:27:41] Speaker 02:
So if New York suspends someone for six months

[00:27:44] Speaker 02:
But the argument is hypothetically that the lawyer didn't receive due process and the lawyer has some at least facially good argument that the court decides it needs to consider at least and it may issue an opinion saying that in fact either it disagrees or it agrees and it's not going to

[00:28:14] Speaker 02:
impose reciprocal discipline.

[00:28:17] Speaker 02:
I'm trying to understand how the process works where a lawyer who has gone through the system and the process and let's hypothetically say that the sanctioning court followed all the rules, et cetera, but may have a good case for setting this aside.

[00:28:39] Speaker 02:
Do all those automatic letters

[00:28:42] Speaker 02:
And suppose the lawyer practices throughout the United States, much less internationally.

[00:28:50] Speaker 02:
What happened?

[00:28:51] Speaker 02:
In other words, this lawyer is pursuing an appeal, and it made it perfectly clear he's going to the Supreme Court with the case.

[00:29:01] Speaker 02:
Are all these other jurisdictions notified nonetheless, but the forum letter makes no mention of the fact that the suspension imposed

[00:29:12] Speaker 02:
Let's say hypothetically about the Dixie Court of Appeals is final as far as that court is concerned, but it is under active challenge.

[00:29:23] Speaker 02:
In other words, how does the system work nowadays?

[00:29:26] Speaker 02:
And what I'm thinking of is a lot of these rules, you will go back to King George III, were developed in a context where communication was much less instantaneous and practice

[00:29:41] Speaker 02:
was much less international, much less national.

[00:29:45] Speaker 02:
And we're sort of in a different era and have been for many decades.

[00:29:52] Speaker 02:
It's just what happens here.

[00:29:54] Speaker 02:
And I'm trying to hypothesize poorly, I understand, a situation where a lawyer, as Mr. Klain is arguing, he really has a good argument as to why he should not be sanctioned and yet

[00:30:10] Speaker 02:
during the consideration of that argument, he in effect is barred from practicing elsewhere, or at least that is what the letter is suggesting that reciprocal discipline ought to be imposed.

[00:30:26] Speaker 02:
Sorry for the long question, but you get the gist.

[00:30:30] Speaker 00:
Yes, Your Honor.

[00:30:32] Speaker 00:
To be clear, the letter does not make any representation about whether reciprocal discipline should be imposed or not.

[00:30:39] Speaker 00:
The letter, again, this is at page 28 of the appendix, just says, enclosed, please find a copy of an order of the District of Columbia Court of Appeals disciplining the above-named attorney.

[00:30:51] Speaker 00:
our records reflect that he's admitted to practice in your jurisdiction period and it attaches the letter and attaches the decision by the quarter.

[00:30:59] Speaker 02:
So it's just information only and then it's up to the other jurisdiction to decide whether to do anything.

[00:31:07] Speaker 00:
Correct, Your Honor.

[00:31:08] Speaker 03:
And of course, the decision by the DC of the letters, he doesn't know the timing of when it's gone out, then he is in a position to inform the other bar that hang on, hang on.

[00:31:21] Speaker 03:
I filed a certification, right?

[00:31:25] Speaker 00:
But as you said, Your Honor, he already is under the obligation to notify the court.

[00:31:31] Speaker 00:
So to your earlier question, Judge Mollett, that might be an example.

[00:31:36] Speaker 00:
I believe in all the jurisdictions under question here, there was an obligation to notify the court when there was a final sanction imposed against them.

[00:31:51] Speaker 00:
And that happened.

[00:31:54] Speaker 03:
Final has different meanings.

[00:31:55] Speaker 03:
Sometimes it means.

[00:31:56] Speaker 03:
Right.

[00:31:56] Speaker 00:
I think sanctions.

[00:32:01] Speaker 00:
Right, I think a sanction in effect.

[00:32:03] Speaker 00:
So here, even though Mr. Klayman was pursuing further review of the sanction, it was in effect at the time that the decision was in effect.

[00:32:16] Speaker 02:
And I get your point, but a lot of the lawyers, sorry.

[00:32:20] Speaker 03:
Sorry, I just want to finish the sentence.

[00:32:24] Speaker 02:
Of course, I lost contact.

[00:32:27] Speaker 03:
No, no, it's so hard over the phone.

[00:32:28] Speaker 03:
You're doing great.

[00:32:30] Speaker 03:
Is it clear?

[00:32:32] Speaker 03:
I mean, you can sign me to the attorneys would know that they provide this notice even before they have exhausted review.

[00:32:39] Speaker 00:
Well, the district court, excuse me, the District of Columbia Court of Appeals decision made clear that the decision was final, regardless of further review or finalized in effect.

[00:32:51] Speaker 00:
case.

[00:32:54] Speaker 00:
In terms of final, I mean, in effect at that point.

[00:32:56] Speaker 00:
And so to your prior question about when the disciplinary counsel office might exercise discretion to not send a letter, I think if a respondent in one of these cases had notified a foreign jurisdiction, a jurisdiction of another state, that

[00:33:15] Speaker 03:
had basically sent the same letter, then I think there would be no need for a motion for stay of the sanction mentioned here with the DC Court of Appeals.

[00:33:26] Speaker 03:
When would that would you still have to go ahead and notify or would you get to wait for action on the stay motion?

[00:33:32] Speaker 00:
Well, I think as when the when the sanction is in effect, again, the purpose of this rule is to prevent

[00:33:39] Speaker 00:
foreign jurisdictions, jurisdictions and other states from having a litigant in that court that has been sanctioned by another jurisdiction for some sort of attorney misconduct is to prevent them from continuing in a case without knowing about that other.

[00:33:56] Speaker 00:
misconduct about the sanction because of that other misconduct and so here that that's all that the that my clients did sent this letter saying attached please find the decision of the district of columbia court of appeals period i'm sorry judge what no oh oh yeah um so so i had a i had a somewhat different question which is is one i already asked mr claiming why um why doesn't federal common law apply to these officials

[00:34:27] Speaker 00:
Well, Your Honor, that certainly hasn't been briefed in this case.

[00:34:31] Speaker 00:
As discussed, this court has already decided that Rule 11, Section 19A applies, and that the common law applies because these defendants are quasi-judicial officials.

[00:34:46] Speaker 00:
So I think that that decision is... Judgment, right?

[00:34:51] Speaker 04:
Excuse me?

[00:34:52] Speaker 04:
Wasn't that an unpublished judgment?

[00:34:53] Speaker 00:
That was an unpublished decision.

[00:34:55] Speaker 00:
It was, Your Honor, but it cited the Simons case, which is a published decision and looks at DC.

[00:35:01] Speaker 04:
We've never said whether DC bar officials are federal officials or officials of the District of Columbia.

[00:35:10] Speaker 04:
And under some of our cases involving the Federal Tort Claims Act, you know, we look to see

[00:35:15] Speaker 04:
you know, for DC entities in particular, we look to see, you know, how they were created, how they are funded, all of these different indicia about whether they should be treated as federal officials as opposed to district officials.

[00:35:28] Speaker 04:
So I know that wasn't briefed, but I'm wondering if you can, if you have any thoughts about that.

[00:35:34] Speaker 00:
Right.

[00:35:34] Speaker 00:
I don't, Your Honor.

[00:35:36] Speaker 00:
We'd be happy to research it and to file a supplemental briefing if Your Honor is interested.

[00:35:42] Speaker 04:
Because the standards are very different under federal common law than they would be.

[00:35:45] Speaker 04:
If the federal common law applies, then that's a different standard for immunity than under the DC FAR rules.

[00:35:51] Speaker 00:
Right.

[00:35:51] Speaker 00:
Again, I do think that this case, not only in claimant one and claimant two, but also in all the cases cited in that decision, particularly the Simons v. Spellinger case, did apply the same standard that applies here.

[00:36:05] Speaker 00:
So we're not asking you to create any new ground the district court certainly didn't create.

[00:36:10] Speaker 04:
Also, I'll just mention, I mean, if they were federal officials, then the Westfall Act might apply to them.

[00:36:15] Speaker 04:
and provide immunity under the Westfall Act.

[00:36:18] Speaker 04:
I know that wasn't asserted or preserved here, but I think that would be potentially another source of that.

[00:36:25] Speaker 00:
Right, Your Honor.

[00:36:25] Speaker 00:
I think there would be several arguments.

[00:36:28] Speaker 00:
I think the federal common law applies different standards, as you said, but also would apply immunity to acts taken by quasi-judicial officials.

[00:36:38] Speaker 04:
Under the federal common law, though, it only would apply to a discretionary act, not a ministerial act.

[00:36:44] Speaker 00:
Right.

[00:36:44] Speaker 04:
And so it may well be that the federal common law immunity would not cover these actions based on the discussion you were having earlier with Judge Millett.

[00:36:52] Speaker 00:
Right.

[00:36:52] Speaker 00:
Well, two responses, Your Honor.

[00:36:54] Speaker 00:
One is, again, I do think as a matter of course, these letters are sent.

[00:36:58] Speaker 00:
But I do still think it's a matter of discretion, because as we discussed, there's no specific rule requiring defendants to take this action.

[00:37:07] Speaker 00:
They do it as a matter of course, and they do it evenly to all respondents.

[00:37:10] Speaker 00:
But there's no rule requiring it.

[00:37:13] Speaker 00:
And it does require some work to figure out what are the jurisdictions where the respondent has been admitted.

[00:37:21] Speaker 00:
what's the sanction that's been imposed, those sorts of things.

[00:37:24] Speaker 00:
But secondly, Your Honor, I also don't want to lose sight.

[00:37:29] Speaker 00:
We've talked a lot about these letters.

[00:37:30] Speaker 00:
But of course, this case, the overarching of Mr. Klayman's claims across all his cases to date, and there have been a dozen or so, that my clients are acting with some sort of improper motive, that they're abusing

[00:37:46] Speaker 00:
process by bringing these investigating and prosecuting this disciplinary challenges.

[00:37:51] Speaker 00:
So he's he's yes, alleged that these letters are part of that.

[00:37:55] Speaker 00:
But he alleges it in this broad scheme that they're out to get him.

[00:38:00] Speaker 04:
And that's this particular case is just about the letters that really in effect, isn't it?

[00:38:05] Speaker 04:
Well, I think it to be broader than about the letters.

[00:38:09] Speaker 00:
I do, Your Honor, if you look at the district court's decision where the district court compares, this is at 443 and 444 of the appendix, he compares the complaints in this case and the complaints in the prior cases, and much of it overlaps.

[00:38:28] Speaker 00:
And here he focuses, Mr. Klayman does include this additional factual allegation about the letters.

[00:38:36] Speaker 00:
But A, as mentioned, that was already decided by the DC Superior Court.

[00:38:40] Speaker 00:
It said that sending out these letters does not deviate from the scope of defendant's duties.

[00:38:46] Speaker 00:
And B, sending those letters, in Mr. Klayman's view, is part of this broader process of this vendetta that my clients have against him.

[00:38:57] Speaker 00:
pursue him because of his political views ideology and and that is the issue that this court already decided in claimant one and claimant two that those that that absolute immunity applies and that whatever this court said whatever the reason

[00:39:18] Speaker 00:
for prosecuting these claims that as long as the actions are taken within the scope of defendant's duties, that absolute immunity applies.

[00:39:29] Speaker 00:
And here, this new factual allegation about the letters does not take any of the allegations outside the scope of defendant's duties.

[00:39:37] Speaker 03:
Judge Rodgers, did you have a question still?

[00:39:41] Speaker 02:
Well, I guess I'm concerned, I think Council,

[00:39:45] Speaker 02:
responded appropriately as did one of the questions you or Judge Rao asked.

[00:39:49] Speaker 02:
But I'm concerned a little bit, as I understood counsel, and correct me if I'm wrong, part of your response to my concern was, well, this action taken by the DC Bar officials is really designed to protect other courts from proceeding with counsel.

[00:40:13] Speaker 02:
who are not properly admitted.

[00:40:16] Speaker 02:
And obviously, I don't know the practices in every jurisdiction.

[00:40:21] Speaker 02:
But it's fairly common that when you're filing something, you have to make a representation to the court in which you are filing it that you are a member of the bar.

[00:40:37] Speaker 02:
I'm just wondering what, I mean, I understand well, maybe not

[00:40:42] Speaker 02:
Every single jurisdiction does that.

[00:40:45] Speaker 02:
But lawyers are officers of the court to that extent.

[00:40:52] Speaker 02:
So I just wonder what's happening.

[00:40:53] Speaker 02:
This is double protection, I suppose.

[00:40:56] Speaker 02:
We're not making any comment.

[00:40:58] Speaker 02:
But certainly, a lot of lawyers in this jurisdiction, even before the more modern day, practiced in multiple jurisdictions, notably Maryland and Virginia.

[00:41:09] Speaker 01:
So I'm just wondering.

[00:41:13] Speaker 02:
how the bar views all this now and with Mr. Klayman.

[00:41:19] Speaker 02:
And I thought this case really was more focused on the abuse aspect.

[00:41:28] Speaker 02:
And therefore, before he could file anything more, he would have to get the approval of the court.

[00:41:41] Speaker 02:
So I'm hearing a very different argument, yeah.

[00:41:45] Speaker 00:
Well, you're right, Your Honor, that the pre-filing injunction here is because of the abuse that the district court found Mr. Klayman's filings continue to impose on defendants.

[00:41:55] Speaker 00:
And to be clear, under the test, on the In rey Powell test, it's disjunctive.

[00:42:01] Speaker 00:
It can be, this is the third among the tests, it's frivolous filings and it's harassing filings.

[00:42:07] Speaker 00:
And here, the district court found both.

[00:42:10] Speaker 00:
And this, I think, goes back, we come full circle, Judge Rao, to your first question.

[00:42:14] Speaker 00:
I think here, there's no question in my mind that there are frivolous filings.

[00:42:20] Speaker 00:
And the district court found that not only based on the number, and that number, again, is consistent with several cases that this court has affirmed.

[00:42:27] Speaker 00:
In Arnold v. Secretary of the Navy, in Camper v. Brown, in Smith v. Scalia.

[00:42:34] Speaker 03:
Does the court count this case?

[00:42:36] Speaker 00:
Excuse me.

[00:42:37] Speaker 03:
Didn't the district court count this case?

[00:42:39] Speaker 00:
The district court considered the three cases.

[00:42:41] Speaker 00:
Yes, you're on our file, which.

[00:42:44] Speaker 03:
Involve a different legal question about the authority to send.

[00:42:49] Speaker 03:
These letters out.

[00:42:53] Speaker 03:
And relatedly, the district courts.

[00:42:57] Speaker 00:
But again, Your Honor, if you look at Mr. Klayman's filings, the complaint, for example, says, defendants assert false and misleading claims that they have, quote, absolute immunity.

[00:43:08] Speaker 00:
This absolute immunity does not exist.

[00:43:11] Speaker 03:
But he also says he also, in the litigation before us, is attacking something different.

[00:43:19] Speaker 03:
Um, so it's that they had some, as I think we've been discussing here, not yet clear what the authority is or how it works, if it's ministerial or whether it's discretionary, but just 100% of the time, they all choose to exercise it the same way.

[00:43:33] Speaker 03:
Um, or if it's written somewhere in a manual, it's, it's something that simply hasn't been resolved.

[00:43:39] Speaker 03:
So surely that cannot count as either frivolous or repetitious.

[00:43:44] Speaker 00:
Well, again, Your Honor, it was resolved by a claim in three, by the DC Superior Court there.

[00:43:50] Speaker 00:
You're right.

[00:43:50] Speaker 00:
It hasn't been.

[00:43:51] Speaker 03:
At the DC Court of Appeals.

[00:43:53] Speaker 00:
Right.

[00:43:53] Speaker 00:
But the district court was looked at, and this court's case law shows the court can look at filings in any sort of form.

[00:44:01] Speaker 00:
And so with the DC Superior Court was looking at Rule 19A and the

[00:44:07] Speaker 00:
common law that applies absolute immunity to quasi-judicial.

[00:44:10] Speaker 03:
So when DC Superior Court or a state trial court makes a ruling, a federal court has to or should count that ruling as sort of conclusive on frivolousness?

[00:44:30] Speaker 00:
Well, your honor, it's a totality of the circumstances analysis.

[00:44:34] Speaker 00:
And that's what the district court did here.

[00:44:36] Speaker 00:
So it looked at frivolousness, but it also looked at at harassment.

[00:44:41] Speaker 00:
That's the second prong of this.

[00:44:42] Speaker 00:
And it's a disjunctive test.

[00:44:43] Speaker 00:
And here there are undisputed sworn affidavits talking about the stress that these filings have caused, the embarrassment, the

[00:44:53] Speaker 00:
the effect to retirement plans, things like that.

[00:44:57] Speaker 00:
The fact that Mr. Klayman has insisted on continuing to serve process on these defendants' homes despite their repeated request to just serve their attorney.

[00:45:12] Speaker 00:
So even if you're not with me on frivolousness, and I think here there is a record of frivolousness.

[00:45:19] Speaker 03:
But again, there has something wouldn't, again, pertain to litigation about the authority to send these letters.

[00:45:25] Speaker 03:
That just hasn't happened before.

[00:45:28] Speaker 00:
It has not happened in this court.

[00:45:30] Speaker 00:
You're right, Your Honor.

[00:45:31] Speaker 00:
That letters.

[00:45:32] Speaker 00:
But again, the letters are just.

[00:45:34] Speaker 03:
Where does the DC Superior Court say they had the authority to issue these letters?

[00:45:38] Speaker 03:
Do you have a site for that?

[00:45:39] Speaker 00:
Yes, Your Honor.

[00:45:40] Speaker 00:
It's the DC Superior Court case that's cited in our cases that is

[00:45:48] Speaker 03:
So I didn't know if you had a jump site for where they talked about.

[00:45:50] Speaker 03:
If you don't, that's fine.

[00:45:51] Speaker 03:
You could send it later.

[00:45:52] Speaker 00:
It's, it's, uh, number 2020 C A zero zero zero seven five six B.

[00:45:59] Speaker 00:
And the court there doesn't say that there's a rule requiring this.

[00:46:03] Speaker 00:
But what the court says is that Mr. Klayman, like here, has offered the sending of these letters to other notifying other jurisdictions of a suspension by the DC Court of Appeals.

[00:46:14] Speaker 00:
But he presented that as one of the reasons why defendants had exceeded the scope of their authority.

[00:46:21] Speaker 00:
And the District Court, or excuse me, the Superior Court said, I'm not persuaded by that.

[00:46:26] Speaker 03:
The district court applied absolute immunity and said it didn't explain itself at all as the authority to send this letters or how it worked.

[00:46:34] Speaker 00:
Excuse me, your honor.

[00:46:34] Speaker 03:
Spirit court didn't explain itself at all, just that I'm not persuaded and applied immunity.

[00:46:39] Speaker 00:
Well, it looked at this court's prior.

[00:46:41] Speaker 03:
No, our prior rights didn't deal with this any letters issue.

[00:46:45] Speaker 03:
That's fine.

[00:46:45] Speaker 03:
I'm kind of think I'm not being clear here.

[00:46:47] Speaker 03:
I'm trying to find out if there's anything in that DC Superior Court opinion.

[00:46:53] Speaker 03:
or any DC Court of Appeals ruling, if you have one, that talks about their authority to send the letters, their obligation to send the letters.

[00:47:03] Speaker 03:
And is that considered part of one, that's not one, that's authority.

[00:47:09] Speaker 03:
Two, is it discretionary or mandatory slash ministerial?

[00:47:16] Speaker 03:
And three, is it done sort of 100% of the time if they have discretion?

[00:47:22] Speaker 03:
I'm sorry, four, one more thing.

[00:47:25] Speaker 03:
So the four, is it considered sort of, if it's post-final adjudication, is it still considered part of the disciplinary adjudicatory process, or is it an administrative process, which would present a different, maybe that would still fall within the scope of qualified immunity.

[00:47:44] Speaker 03:
Maybe it would not, something that simply hasn't been briefed or resolved as far as I know.

[00:47:50] Speaker 00:
Right that the Superior Court to be clear, just not go into that detail on all those questions.

[00:47:55] Speaker 03:
We have no precedent as far as you're aware of on answering any of those questions.

[00:47:59] Speaker 00:
None on those.

[00:47:59] Speaker 00:
You're right, Your Honor, none on those specific questions.

[00:48:03] Speaker 00:
But again, that's just a factual allegation that Mr. Klayman

[00:48:07] Speaker 00:
presents to support his, that the two claims here are abusive process and tortious interference.

[00:48:12] Speaker 00:
And he says that my clients have acted maliciously based on his ideology and his political views, and that this is an example of their taking those actions.

[00:48:25] Speaker 00:
And again, to be- I understand that.

[00:48:27] Speaker 03:
I totally get that.

[00:48:28] Speaker 03:
But if someone brings a claim, this is just hypothetical, but if someone brings a claim

[00:48:32] Speaker 03:
a complaint and three of the claims are clearly covered by absolute immunity.

[00:48:39] Speaker 03:
The judge ruled this way, the judge ruled against me, the judge imposed the sentence.

[00:48:44] Speaker 03:
And then the fourth claim is, and the clerk of the court refused to file my papers.

[00:48:51] Speaker 03:
Could that complaint be dismissed on absolute immunity grounds?

[00:48:56] Speaker 00:
There, Your Honor, I think you're right that the filing of the papers would probably be a ministerial.

[00:49:01] Speaker 03:
I don't know.

[00:49:02] Speaker 03:
Let's assume it's purely ministerial.

[00:49:04] Speaker 00:
Right.

[00:49:04] Speaker 00:
Assuming it's a ministerial duty and that there's no discretion, then perhaps not.

[00:49:12] Speaker 00:
But again, here, I don't think it's ministerial.

[00:49:15] Speaker 00:
The fact that it happens in

[00:49:17] Speaker 00:
In every case where the district of Columbia Court of Appeals has imposed the sanction doesn't mean that it that there's not discretion.

[00:49:26] Speaker 00:
Right.

[00:49:27] Speaker 03:
I just don't really know.

[00:49:27] Speaker 03:
We don't have a factual record on that.

[00:49:30] Speaker 00:
Excuse me.

[00:49:31] Speaker 03:
I don't have a factual record.

[00:49:32] Speaker 03:
There's no I get your argument.

[00:49:33] Speaker 03:
It could well right.

[00:49:35] Speaker 03:
But we don't know.

[00:49:37] Speaker 00:
Correct.

[00:49:38] Speaker 00:
That's not in the record.

[00:49:39] Speaker 00:
But to zoom out, Your Honor, to be clear, the pre-filing injunction here has a safety valve.

[00:49:46] Speaker 00:
Not only is it narrowly tailored, but it doesn't absolutely bar Mr. Klayman from bringing any action.

[00:49:53] Speaker 00:
It merely requires him to apply to any court, state court, federal court, any court where he

[00:49:59] Speaker 00:
proposes to bring litigation and to seek leave of the court.

[00:50:04] Speaker 00:
And so if there is- Can I ask you how that works?

[00:50:07] Speaker 03:
I'm sorry, I know we kept you a long time, but I don't know how this pre-suit injunction actually works in practice.

[00:50:14] Speaker 03:
So if I was subject to a similar order and I wanted to go file a lawsuit in Eastern District of Virginia,

[00:50:27] Speaker 03:
And so I know I have to attach a copy of the disciplinary order to my complaint.

[00:50:32] Speaker 03:
And then do I have to file a motion for approval in that court?

[00:50:39] Speaker 00:
The language of the injunction is an application.

[00:50:42] Speaker 00:
So I think it is like a motion for leave.

[00:50:44] Speaker 00:
Yes.

[00:50:45] Speaker 03:
Whom does that go?

[00:50:46] Speaker 03:
Does a judge have to get hauled in to decide that or does the clerk of the court decide it?

[00:50:51] Speaker 00:
I think that the judge does your honor.

[00:50:53] Speaker 03:
So a judge now has in the Eastern District of Virginia is now has to go familiarize themselves with the disciplinary proceeding here and contents of this complaint and make an upfront judgment about overlap.

[00:51:11] Speaker 00:
Well, Your Honor, this is how it works.

[00:51:15] Speaker 00:
Right.

[00:51:15] Speaker 00:
Well, I assume so.

[00:51:16] Speaker 00:
To be clear, it has not happened in this case.

[00:51:18] Speaker 00:
The district court actually did not enforce.

[00:51:22] Speaker 03:
You can't file this to me.

[00:51:24] Speaker 03:
Is that appealable?

[00:51:26] Speaker 00:
I believe so, Your Honor, and I believe that's.

[00:51:28] Speaker 03:
But to appeal, I can have to file an explication with the court of appeals.

[00:51:35] Speaker 03:
Your Honor, all of- Three judges have to get on the block.

[00:51:40] Speaker 00:
I guess two points, Your Honor.

[00:51:41] Speaker 00:
One is this is hypothetical.

[00:51:44] Speaker 00:
I don't think it has any connection.

[00:51:47] Speaker 00:
Right.

[00:51:47] Speaker 00:
But that's the second point, Your Honor.

[00:51:49] Speaker 01:
Right.

[00:51:51] Speaker 03:
So you mean not just trial level courts, but also federal courts of appeals?

[00:52:00] Speaker 00:
Well, I think, Your Honor, if Mr. Klayman were to seek leave from a district court in Eastern District of Virginia and that court were to deny it,

[00:52:09] Speaker 03:
I think then he likely could file an appeal and I don't- The appeal require, do you read this injunction that requires all federal courts to require an application then to the court of appeals for permission to appeal?

[00:52:24] Speaker 00:
Your honor, I think the injunction talks about cases and claims.

[00:52:27] Speaker 00:
So I don't think it would just on its face.

[00:52:29] Speaker 00:
I think he probably, assuming the other rules, you know, allow for an appeal to jurisdiction.

[00:52:36] Speaker 03:
What about a cert petition to the US Supreme Court?

[00:52:40] Speaker 03:
That is not an appeal.

[00:52:43] Speaker 03:
I don't know what's meant by new proceedings here or new cases, but it is not an appeal.

[00:52:50] Speaker 03:
It is a new process, a petition for review.

[00:52:54] Speaker 03:
Are those covered?

[00:52:55] Speaker 00:
Right.

[00:52:58] Speaker 00:
No, Your Honor, I don't think it's covered.

[00:52:59] Speaker 03:
I think the initial case... Do you think it just applies to trial-level courts within the federal system?

[00:53:07] Speaker 03:
I think it applies to the initial cases and claims filed in court and... So I wouldn't have... ...to appeal to EDVA judges' denial of a motion to file.

[00:53:20] Speaker 00:
Right.

[00:53:20] Speaker 00:
I think under this injunction that, you know, there might be other rules, rules in the Fourth Circuit or rules of the federal... I'm just talking about...

[00:53:27] Speaker 00:
Right, I don't think the injunction would require that because.

[00:53:31] Speaker 03:
It's about a state appellate court.

[00:53:33] Speaker 03:
It just says state courts, it's not qualified.

[00:53:36] Speaker 00:
Right, I don't think that it applies beyond the initial stage of the cases, the claims, that the injunction doesn't talk about.

[00:53:44] Speaker 03:
If there's discretionary review processes, I don't know if that counts as.

[00:53:50] Speaker 03:
a new proceeding or a new claim for review or not under this injunction?

[00:53:54] Speaker 00:
Right.

[00:53:55] Speaker 00:
I think if it is a new claim or a new case, then I think it would be covered.

[00:53:59] Speaker 00:
But again, the injunction here does not apply to disciplinary proceedings, the ongoing proceedings.

[00:54:06] Speaker 00:
The district court denied my client's request for it to apply to the proceeding that's in place right now.

[00:54:14] Speaker 03:
This is only because at that point, the injunction doesn't say state proceedings.

[00:54:18] Speaker 03:
But going forward, it's going to apply

[00:54:20] Speaker 03:
all new disciplinary proceedings, is that right?

[00:54:25] Speaker 00:
Well, it applies to, it does not apply to enjoying Mr. Klayman from litigating in the proper court state disciplinary proceedings.

[00:54:36] Speaker 00:
So for example, the Bundy matter that he referenced in his motion to stay, he's-

[00:54:42] Speaker 03:
district court to challenge a different disciplinary proceeding.

[00:54:47] Speaker 03:
And we'll make it a hypothetical person.

[00:54:49] Speaker 03:
I don't want to say Mr. Klayman does things that require more action.

[00:54:52] Speaker 03:
So let's assume person X after going through this proceeding now does something completely different.

[00:54:58] Speaker 03:
It's charged for a completely different reason to be a violation of DC bar rules and 18 months suspension is imposed.

[00:55:08] Speaker 03:
and they come to the district court and it happens to involve the same bar council or one of the same bar council.

[00:55:14] Speaker 03:
Is that covered?

[00:55:16] Speaker 00:
I think your honor, if it's the same plaintiff, it's the same defendants and it arises from the matters that are derived from.

[00:55:26] Speaker 03:
orders derived from.

[00:55:27] Speaker 03:
So if the DC Court of Appeals or the bar through its process said, normally this would only be a 90-day suspension, but because this is your third strike, we're going to make it 18 months.

[00:55:42] Speaker 03:
Would the challenge in district court then be derived from these disciplinary proceedings, if they're a part of the reason for the discipline?

[00:55:49] Speaker 00:
I think it would, Your Honor.

[00:55:50] Speaker 00:
But again, there's a safety valve.

[00:55:52] Speaker 00:
So Mr. Klayman can go to court and make the point that you're making and say, for X, Y, Z reason, this new claim, this new case that I proposed to file is not frivolous, it's not harassing.

[00:56:04] Speaker 00:
And if you can make that showing, which is not

[00:56:09] Speaker 00:
any greater than the showing that's required under, for example, federal rule 11.

[00:56:14] Speaker 00:
to say this isn't a harassing claim, this isn't a frivolous claim, then he can bring it.

[00:56:20] Speaker 00:
So it's not an absolute bar.

[00:56:22] Speaker 00:
And it does not apply to the ongoing disciplinary proceedings where he has been charged there.

[00:56:27] Speaker 00:
He's not bringing the case.

[00:56:29] Speaker 00:
He's litigating against the disciplinary proceedings.

[00:56:33] Speaker 00:
So there's nothing to stop him in the normal course from challenging those ongoing proceedings.

[00:56:42] Speaker 03:
I had just one more question.

[00:56:44] Speaker 03:
My colleagues don't have any that is on younger abstention.

[00:56:48] Speaker 03:
What was the on?

[00:56:49] Speaker 03:
What is the ongoing proceeding at the time of the district courts ruling?

[00:56:53] Speaker 00:
Well, there are several ongoing proceedings, Your Honor.

[00:56:56] Speaker 00:
One, Mr. Klayman's complaint itself says, as we discussed, that the Satake proceeding was ongoing, that he was filing a hearing.

[00:57:05] Speaker 00:
He was seeking further review of the District Court of, excuse me, District of Columbia Court of Appeals sanctions.

[00:57:12] Speaker 00:
So that proceeding was ongoing.

[00:57:14] Speaker 03:
That's the one in the D.C.

[00:57:15] Speaker 03:
Superior Court?

[00:57:17] Speaker 00:
That was the no, your honor.

[00:57:19] Speaker 00:
It is confusing.

[00:57:20] Speaker 00:
There are a lot of these that when he filed his claims in all three of these cases, that he was continuing.

[00:57:28] Speaker 03:
When the district court ruled what was ongoing.

[00:57:31] Speaker 00:
Right.

[00:57:32] Speaker 00:
So when he filed the claims, the Taki proceeding was still ongoing because he was challenging it when he filed.

[00:57:38] Speaker 03:
Taki in district court?

[00:57:41] Speaker 00:
No, Your Honor, the disciplinary proceeding.

[00:57:44] Speaker 00:
That's the one he was, he says that the bar council erred by sending these notices because he was continuing to challenge the sanction.

[00:57:53] Speaker 00:
That was the ongoing proceeding at that time.

[00:57:56] Speaker 00:
Secondly, there's the Bundy matter, which is the subject of his motion to stay filed in the last few weeks.

[00:58:04] Speaker 00:
That's an ongoing proceeding.

[00:58:06] Speaker 00:
It's at the,

[00:58:07] Speaker 00:
before the board currently, and then there's a review by the District of Columbia Court of Appeals after that.

[00:58:15] Speaker 00:
That is not covered by the induction.

[00:58:18] Speaker 04:
Do the letters relate to an ongoing proceeding?

[00:58:21] Speaker 04:
The seeking an injunction against the sending of the letters relate to an ongoing proceeding?

[00:58:26] Speaker 04:
There may be, there are invariably some ongoing proceedings.

[00:58:31] Speaker 04:
suite of litigation.

[00:58:33] Speaker 04:
Um, but, but the, the injunction sought against the letters.

[00:58:36] Speaker 04:
Is that part of any ongoing proceeding?

[00:58:38] Speaker 00:
Well, that again, your honor, when, when Mr. Klingman filed the case, the seedings were ongoing in that Sataki matter as he was seeking further review of the court of appeals sanctioned.

[00:58:54] Speaker 01:
Yeah.

[00:58:54] Speaker 01:
Questions.

[00:58:54] Speaker 01:
Judge Rogers.

[00:58:55] Speaker 01:
Do you have any questions?

[00:58:57] Speaker 01:
No, thank you.

[00:58:59] Speaker 03:
All right, we've kept you up quite a long time helping us to understand this whole process.

[00:59:04] Speaker 01:
Thank you, Your Honor.

[00:59:05] Speaker 01:
I pass it to you.

[00:59:06] Speaker 03:
Thank you very much.

[00:59:09] Speaker 01:
Right now, Mr. Clemen, we'll give you three minutes.

[00:59:19] Speaker 01:
Your Honor has asked some very good questions.

[00:59:21] Speaker 05:
Fortunately, my learned counsel over there didn't have the answers.

[00:59:26] Speaker 03:
Do you have the answers?

[00:59:28] Speaker 05:
I have the answer.

[00:59:30] Speaker 05:
There is no District of Columbia rule, disciplinary rule that requires to send those letters.

[00:59:36] Speaker 05:
There's nothing in there to that effect.

[00:59:39] Speaker 05:
Number two, Your Honor raised a very good question.

[00:59:41] Speaker 05:
If this was proper, why wasn't I copied on it?

[00:59:44] Speaker 05:
That's ordinary professional practice.

[00:59:46] Speaker 05:
I know what was at stake.

[00:59:48] Speaker 05:
With regard to the Ninth Circuit, they made reference to an ongoing matter concerning Satake, suggesting that I'm going to then be suspended for that when I hadn't even been suspended.

[00:59:58] Speaker 05:
That created a lot of problems and a lot of issues.

[01:00:01] Speaker 05:
I had my bar, I had my ability to file taken away and my ability to represent clients taken away in the Northern District and the Western District.

[01:00:11] Speaker 05:
This is serious.

[01:00:12] Speaker 05:
And for them to cavalierly come up here and he was just pulling that out of a hat.

[01:00:17] Speaker 05:
He doesn't have any basis for 90% of what he said when he was up here and all due respect.

[01:00:23] Speaker 05:
He's making it up.

[01:00:25] Speaker 05:
There's nothing in the record.

[01:00:26] Speaker 05:
And that was a good question your honor asked too.

[01:00:28] Speaker 05:
There's nothing in the record.

[01:00:31] Speaker 03:
And there is- Have you had to, excuse me, have you had to file one of these applications yet?

[01:00:37] Speaker 03:
And if so, can you tell me what the process was?

[01:00:40] Speaker 03:
Or have you not had to do that?

[01:00:41] Speaker 05:
I don't know the process.

[01:00:42] Speaker 05:
And that's another reason why Judge Walton's orders are- Have you tried another jurisdiction?

[01:00:47] Speaker 03:
Have you tried yet in another jurisdiction?

[01:00:50] Speaker 05:
I'm reaching the point of contemplating doing that

[01:00:53] Speaker 05:
But here's the problem, is that Judge Walton's orders, you know, two of, actually three, the preliminary injunction, which had no findings of fact, conclusions of law, no evidentiary here.

[01:01:08] Speaker 05:
The permanent, which also had no hearing under Rule 65, so I could explain these.

[01:01:15] Speaker 05:
This record would have been developed if we had had that hearing.

[01:01:17] Speaker 05:
There's no hearing.

[01:01:19] Speaker 05:
Consequently, those orders are of no force and effect.

[01:01:22] Speaker 05:
They should be vacated.

[01:01:24] Speaker 05:
And number three, void for vagueness.

[01:01:27] Speaker 05:
Your Honor's raising all these questions, and these issues weren't addressed by Judge Walden.

[01:01:31] Speaker 05:
He just simply, in a blanket way, said, you can't file any more cases.

[01:01:36] Speaker 05:
Now, he also said in his most recent order, in effect, don't come back to me.

[01:01:40] Speaker 05:
You read it carefully.

[01:01:41] Speaker 05:
Saying, I already denied your motion today.

[01:01:43] Speaker 05:
I'm not going to listen to you again.

[01:01:44] Speaker 05:
That's why I have one here on this basis.

[01:01:47] Speaker 05:
He denied and joined me just from federal court or from state.

[01:01:51] Speaker 05:
And I do submit that Superior Court is the equivalent or the DC courts are the equivalent of state, but he enjoyed from any other forum.

[01:02:02] Speaker 05:
My God, I mean, this is unbelievable.

[01:02:04] Speaker 05:
I've never seen anything like this.

[01:02:05] Speaker 05:
I've been practicing law for 46 years.

[01:02:08] Speaker 05:
Now I understand there's an institutional bias.

[01:02:10] Speaker 05:
I'm Larry claim and this is DC bar, but DC bar has to play by the same rules as its members.

[01:02:16] Speaker 05:
It used to have on his website, a provision that everybody's to be treated equally both

[01:02:21] Speaker 05:
People that are complained about lawyers that are complaining about and the complainants.

[01:02:26] Speaker 05:
I'm not being treated that way.

[01:02:28] Speaker 05:
Now.

[01:02:30] Speaker 05:
It's a talking matter, by the way, and this is a statement that was simply false.

[01:02:33] Speaker 05:
That's still being champion.

[01:02:35] Speaker 05:
I have a rule 60 action in the Superior Court that was filed.

[01:02:38] Speaker 05:
That's the subject of where Judge Walton begrudgingly said, OK, you can continue with that because I just said federal.

[01:02:46] Speaker 05:
But.

[01:02:47] Speaker 05:
Am I, do I have to apply now when I ever, when I exercise appellate rights or rule 60 rights because there's been false testimony?

[01:02:55] Speaker 05:
Well, he says it doesn't really matter.

[01:02:58] Speaker 03:
That's a fair point.

[01:03:02] Speaker 03:
There's other matters that have been disciplinary actions that have been taken against you that have been final, the precede, this litigation with Judge Walton.

[01:03:13] Speaker 03:
Do you know if letters were sent out to bars in any of those cases?

[01:03:17] Speaker 05:
I don't, your honor.

[01:03:18] Speaker 05:
And they say they have no obligation to tell me.

[01:03:21] Speaker 05:
And there's nothing in the record to reflect one way or the other what they have done.

[01:03:27] Speaker 01:
You know, one other point is that this takes time.

[01:03:35] Speaker 05:
With regard to the Bundy matter.

[01:03:36] Speaker 03:
What takes time?

[01:03:38] Speaker 05:
To go through this application process, if that was applicable, which it's not, I submit.

[01:03:43] Speaker 05:
But with the Bundy matter, when that went to a hearing before the ad hoc hearing committee, they could not find that I committed any ethical violation.

[01:03:52] Speaker 05:
That's very unusual.

[01:03:53] Speaker 05:
And they didn't take supplementary evidence at that time when sanctioned.

[01:03:58] Speaker 05:
But DC bar rule says they must issue a ruling within 60 days, the ad hoc hearing committee.

[01:04:04] Speaker 05:
They didn't issue it for four years.

[01:04:07] Speaker 05:
They only issued it recently because I believe they know that my other suspension is going to end.

[01:04:13] Speaker 05:
in March, next year.

[01:04:15] Speaker 05:
So by the time this thing goes through the board and the DC court of appeals, they want me to be suspended again.

[01:04:21] Speaker 05:
And this is unbelievable.

[01:04:25] Speaker 05:
There's a case in Florida.

[01:04:28] Speaker 05:
I think we filed it in another pleading, which says that bar council can't hang back

[01:04:37] Speaker 05:
and wait for a suspension to conclude before filing another proceeding.

[01:04:43] Speaker 05:
And this is why I have to be able to react quickly to these things, because hopefully I'll get a judge who will listen to what I have to say.

[01:04:50] Speaker 05:
Judge Walton, you know, he's a nice man, but I think he got offended when I said, have you read the pleadings?

[01:04:55] Speaker 05:
Because I didn't think he had understood what the issues were at that time.

[01:05:00] Speaker 03:
Okay, thank you.

[01:05:01] Speaker 03:
Do my colleagues have any further questions?

[01:05:04] Speaker 03:
No, thank you.

[01:05:05] Speaker 03:
That case is submitted.

[01:05:07] Speaker 03:
Thank you.

[01:05:08] Speaker 05:
All right, thank you.