In re Klayman, 20-BG-583

Citation20-BG-583
Case DateSeptember 15, 2022
CourtCourt of Appeals of Columbia District

In re Larry E. Klayman, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 334581)

No. 20-BG-583

Court of Appeals of The District of Columbia

September 15, 2022


Argued June 16, 2022

On Report and Recommendation of the Board on Professional Responsibility (17-BD-063; DDN-028-11)

Melissa Isaak for respondent.

Myles V. Lynk, Senior Assistant Disciplinary Counsel, with whom Hamilton P. Fox, III, Disciplinary Counsel, was on the brief, for petitioner.

Before Blackburne-Rigsby, Chief Judge, and Beckwith and McLeese, Associate Judges.

Per Curiam:

The Board on Professional Responsibility concluded that respondent Larry E. Klayman violated numerous District of Columbia Rules of Professional Conduct during his representation of former client E.S. The Board recommended that Mr. Klayman be suspended for eighteen months, with a requirement that he show fitness before being permitted to return to the practice of

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law. We accept the Board's conclusion that Mr. Klayman violated the Rules of Professional Conduct, and we adopt the Board's recommended sanction.

I. Factual Background

In sum, the evidence presented by Disciplinary Counsel to the Hearing Committee was as follows. The evidence largely consisted of E.S.'s testimony but also included numerous documents, including written correspondence between E.S. and Mr. Klayman.

E.S. met Mr. Klayman in 2009, while she was covering a story for Voice of America (VOA). E.S. told Mr. Klayman that she was being sexually harassed by her cohost and that after she reported the harassment to her supervisor, she was transferred to a different position. Early in 2010, Mr. Klayman and E.S. agreed that he would represent her in a case against VOA. E.S. did not believe that Mr. Klayman provided her with a written document setting out the scope and nature of the representation. Mr. Klayman and E.S. agreed that Mr. Klayman would work on a contingent basis, receiving forty percent of any award E.S. won. Mr. Klayman later unilaterally increased his fee to fifty percent.

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Mr. Klayman initially attempted to negotiate a settlement with VOA. After the negotiations were unsuccessful, Mr. Klayman encouraged E.S. to move from the District of Columbia to Los Angeles, assuring her that he could get her transferred to the VOA office in Los Angeles. Mr. Klayman paid for the move and for E.S.'s living expenses in Los Angeles. E.S. and Mr. Klayman agreed that the money Mr. Klayman was providing would be paid out of any award E.S. won, in addition to the contingency fee. VOA denied E.S.'s request for a transfer, at which point Mr. Klayman filed a civil suit against E.S.'s alleged harasser and supervisors.

E.S. had wanted her case to be "very quietly handled," with as few people as possible finding out about the harassment. She explained her concerns about publicity to Mr. Klayman, and he initially respected her wishes. Mr. Klayman later began to pursue a strategy designed to draw attention to E.S.'s case. For example, shortly after filing suit against E.S.'s harasser and supervisors, Mr. Klayman filed suit against the members of VOA's governing board, the Broadcasting Board of Governors (BBG). The BBG included prominent public figures, particularly then-Secretary of State Hillary Rodham Clinton. E.S. did not agree to the BBG suit, worrying that the case "was getting too big" and preferring to focus on her harasser and supervisors. Mr. Klayman subsequently filed motions to disqualify the district-court judge who had been assigned to both of E.S.'s cases, arguing that the judge

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was politically biased against him. Mr. Klayman also wrote numerous articles mentioning E.S.'s case and providing confidential information about E.S. Although E.S. was initially "completely against" the articles, she ultimately agreed to the publicity after Mr. Klayman explained that it would help her case.

In April 2010, Mr. Klayman began to repeatedly express romantic feelings towards E.S. Mr. Klayman told E.S. that he loved her, and E.S. replied that he was her attorney and they could only be friends. For months thereafter, Mr. Klayman kept saying that "he wanted to have a relationship with [E.S.] and [E.S. kept] saying no, and it was ongoing and ongoing and it wouldn't stop . . . it was very, very, very uncomfortable" for E.S. For example, Mr. Klayman sent an email to E.S. saying "You are . . . the only woman I've ever really loved. . . . [W]hen I walk down the street . . . and see an attractive woman, my thoughts immediately flip to you. I see no one else. . . . My loving you has given me true meaning in my life."

E.S. believed that Mr. Klayman's feelings for her were causing him to act unprofessionally in his representation, which Mr. Klayman himself acknowledged in writing several times. For example, in one letter, Mr. Klayman said that "I do truly love [E.S]. . . . [A]nd my own emotions have rendered me non-functional even as a lawyer." In an email, Mr. Klayman said "It[']s very hard to be a lawyer and feel

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so much for your client." In a second email, Mr. Klayman said that he had "not been able to function lately, because [he was] out there so far emotionally and got nothing back," and that E.S. would "get better legal representation with someone else . . . who does not have an emotional conflict and can keep his mind clear."

In July 2010, E.S. wrote to Mr. Klayman and directed him to withdraw the case against the BBG, which was by then the only active case. Several days later, E.S. wrote to an executive at VOA stating that she had "instructed Larry Klayman to withdraw any and all civil actions that he may have filed in my name and that he is no longer representing me." This letter was not sent directly to Mr. Klayman, but by the next day he had received a copy. Mr. Klayman, however, did not dismiss the entirety of the case against the BBG. He also continued to act on E.S.'s behalf. For example, after the trial court granted defendants' motion to dismiss the BBG case, Mr. Klayman filed a motion to reconsider.

In November 2010, because Mr. Klayman continued to contact her about her case, E.S wrote another letter to him reiterating his termination. That letter was incorrectly addressed, and Mr. Klayman testified that he did not receive it. E.S. wrote to Mr. Klayman a third time in January 2011, stating that he was "not representing [her] in any way or shape." Mr. Klayman replied to E.S., implying that

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she had not written the email and explaining that he "[could not] allow her legal rights and obligations to be compromised or lost altogether." Several days later, Mr. Klayman filed a notice of appeal in the BBG case, despite not having had any communication with E.S. about filing the appeal. E.S. later personally filed a notice of appeal in that case.

Mr. Klayman's testimony was contrary to E.S.'s in many respects. Generally, Mr. Klayman testified that E.S. was seeking revenge against him because she was angry that her case had not gone well. Mr. Klayman denied having any romantic intentions toward E.S. To the extent he did have feelings for E.S., they "actually made [him] work harder" on her behalf. Mr. Klayman also contested the existence of a contingent fee agreement. Mr. Klayman testified that he consulted with E.S. about his actions in the case, such as filing the disqualification motion. Finally, he acknowledged E.S.'s initial reluctance to pursue publicity but testified that she later agreed to do so. He denied pressuring E.S. on the issue.

Mr. Klayman offered testimony from several other witnesses. Gloria Allred, a women's rights attorney, testified that she and Mr. Klayman had discussed E.S.'s case and that she had twice declined to take E.S.'s case. Former Judge Stanley Sporkin testified that he had found Mr. Klayman to be an honest and ethical lawyer

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and had no reason to doubt Mr. Klayman's character. Former Judge Sporkin also testified that he and Mr. Klayman had discussed E.S.'s case and that he had agreed with aspects of Mr. Klayman's litigation strategy. Timothy Shamble, who was E.S.'s union representative at VOA, testified, among other things, that E.S. had agreed to publicize her case and had herself distributed one of the articles Mr. Klayman wrote about her case at a VOA event. Keya Dash, a family friend, testified that Mr. Klayman did not seek a romantic relationship with E.S., although Mr. Dash was unaware of the emails that Mr. Klayman had sent E.S. stating that he loved her. Finally, Joshua Ashley Klayman, Mr. Klayman's sister, testified that E.S. agreed with Mr. Klayman's publicity strategy and that Mr. Klayman was not in love with E.S.

II. Procedural Background

In 2010, E.S. filed a complaint with Disciplinary Counsel, alleging that Mr. Klayman was harassing her even though she had terminated his representation of her. Disciplinary counsel notified Mr. Klayman of the complaint and began to investigate, but apparently lost contact with E.S. for several years. Counsel brought charges in 2017.

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After the evidentiary hearing, the Hearing Committee issued a lengthy report and recommendation. The Hearing Committee largely credited E.S.'s testimony over that of Mr. Klayman. The Hearing Committee concluded that Mr. Klayman had committed numerous disciplinary violations. Specifically, the Hearing Committee concluded that Mr. Klayman violated: (1) D.C. R. Prof. Cond. 1.2(a) (lawyer shall abide by client's decisions as to objectives of representation and shall consult with client as to means used) and 1.4(b) (lawyer shall appropriately explain matter to client), by, among other things, failing to inform E.S. before taking important steps in the litigation, including the filing of the motion to disqualify, and refusing to dismiss the BBG suit as E.S. had directed; (2) D.C. R. Prof. Cond. 1.5(b) (requiring written agreement regarding representation) and (c)...

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