Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

Lack of Candor and Civility Can Result in Lost Opportunities

Although civility is not expressly required in California’s Rules of Professional Conduct, ethics and civility often overlap. And in some cases, a combination of the two being absent may prove costly to lawyers.

The Ninth Circuit recently addressed such a situation. In Bundy v. United States District Court (9th Cir. 2016) 2016 U.S. App. LEXIS 19479, Larry Klayman was denied pro hac vice admittance in a high-profile criminal trial. The Ninth Circuit opined that the district court had more than enough reasons to deny admission since Klayman was not candid about his involvement in an ethics proceeding before the District of Columbia Bar; had twice been barred from appearing pro hac vice in other jurisdictions; failed to list other cases in which he had been sanctioned, reprimanded, or denied pro hac vicestatus; and had a record of personally attacking judges, including the Chief Judge who denied his pro hac vice application here.

In his emergency petition for a writ of mandamus, Klayman claimed that he had "continuously been a member in good standing of the District of Columbia Bar for over 36 years and has never been disciplined” and that even if he was disciplined under the then-pending disciplinary proceedings with the District of Columbia Bar, “that would still not justify denial of [his] application to appear pro hac vice.”

Once the matter was pending before the Ninth Circuit, the district court continued its investigation of Klayman and his fitness to practice. Its research concluded that “the District of Columbia Hearing Committee reviewed Klayman’s Petition for Negotiated Discipline and rejected it.” This was contrary to Klayman’s representation that he had withdrawn his affidavit because he believed that he had acted ethically. Instead, Klayman's affidavit was rejected because the “agreed-upon sanction of public censure [was] unduly lenient.” So, Klayman had misrepresented the proceedings.

Despite the problems in other jurisdictions and the above-described issues with his candor, Klayman might have still been admitted had he been more civil; one of the judges dissented. But the majority concluded that Klayman had not learned from past misdeeds. In particular, they cited his propensity for confronting judicial officers personally, including by claiming that a judge was biased because of that judge’s ethnic origin and because Clinton had appointed him. Here, following denial of the pro hac vice application, Bundy filed a Bivens action against Chief Judge Gloria Navarro, President Barack Obama, U.S. Senator Harry Reid, and others alleging a conspiracy to violate his civil rights. The majority concluded that Klayman’s participation in such an action “smack[ed] of intimidation and retaliation.”

Attorneys work incredibly hard for the opportunity to practice law. And once they get that chance, lawyers have to keep on working  to get that next client. The above is a cautionary tale that all of the skill in the world may not be enough to get you that next opportunity. If you are not ethical, and you do not respect the courts, all of that hard work may be for naught.

-- David Majchrzak

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**