FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: CLIVEN D. BUNDY, No. 16-72275
______________________________
D.C. No.
CLIVEN D. BUNDY, AKA Cliven 2:16-cr-00046-GMN-PAL-1
Bundy,
Petitioner, OPINION
v.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA, LAS
VEGAS,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Petition for Writ of Mandamus
Argued and Submitted October 21, 2016
Before: W. FLETCHER, GOULD, and BYBEE, Circuit Judges.
Opinion by Judge Bybee
BYBEE, Circuit Judge:
Attorney Larry Klayman applied to be admitted pro hac vice in the high-
profile criminal trial of Cliven Bundy. The district court denied his application
without prejudice. Bundy has now asked this court for a writ of mandamus to
force the district court to admit Klayman. We decline to do so. Under our
decisions, the district court had more than ample cause to turn down Klayman’s
application: he is involved in an ethics proceeding before the District of Columbia
Bar, and he was not candid with the court about the status of those proceedings; he
disclosed that he was twice barred in perpetuity from appearing pro hac vice before
judges in the Central District of California and the Southern District of New York,
but he failed to list numerous cases—all available on Westlaw or LEXIS—in
which he has been reprimanded, denied pro hac vice status, or otherwise
sanctioned for violating various local rules; and he has a record of going after
judges personally, and shortly after Chief Judge Gloria Navarro denied his
application, Bundy filed a frivolous Bivens action against her in her own court.
This litany of reasons for denying Klayman pro hac vice status demonstrates that
the district court did not abuse its discretion, much less commit clear error.
I. FACTUAL BACKGROUND AND PROCEEDINGS
A. Factual Background
2
According to the indictment, in early April 2014, Petitioner Bundy and his
codefendants were involved in an armed stand-off around Bunkerville, Nevada,
with agents of the Bureau of Land Management (“BLM”). Following a more than
twenty-year legal battle over grazing fees on public lands, the federal courts
authorized the BLM to remove some 400 head of Bundy’s cattle from public lands.
See, e.g., United States v. Bundy, 2013 WL 3463610 (D. Nev. July 9, 2013). In
response to the BLM’s attempts to settle the dispute peacefully, Bundy said that he
was “ready to do battle” and “do whatever it takes” to keep the cattle. Over the
course of a week, hundreds of Bundy’s supporters congregated near Bunkerville to
prevent the BLM from removing Bundy’s cattle. Many of Bundy’s supporters
were armed, and the BLM agents ultimately withdrew from the area. The incident
attracted national, and even international, attention.1
On March 2, 2016, a federal grand jury in the District of Nevada returned a
sixteen-count superseding indictment against Bundy, four of his sons, and fourteen
others. The indictment charged them with Conspiracy to Commit an Offense
Against the United States, 18 U.S.C. § 371; Conspiracy to Impede or Injure a
Federal Officer, 18 U.S.C. § 372; Use and Carry of a Firearm in Relation to a
1
The incident has its own Wikipedia page. Bundy Standoff, Wikipedia (Oct.
27, 2016, 1:54 PM), https://en.wikipedia.org/wiki/Bundy_standoff.
3
Crime of Violence, 18 U.S.C. § 924(c); Assault on a Federal Officer, 18 U.S.C.
§ 111(a)(1), (b); Threatening a Federal Law Enforcement Officer, 18 U.S.C.
§ 115(a)(1)(B); Obstruction of the Due Administration of Justice, 18 U.S.C.
§ 1503; Interference with Interstate Commerce by Extortion, 18 U.S.C. § 1951; and
Interstate Travel in Aid of Extortion, 18 U.S.C. § 1952.
B. Proceedings Before the District Court
1. Klayman’s Petition for Pro Hac Vice Admission
Following his indictment, Bundy secured local counsel, Joel Hansen.2 He
also secured the services of Larry Klayman, a member of the District of Columbia
and Florida Bars. Under Local Rules for the United States District Court of
Nevada, an attorney who has been retained to appear in a particular case but is not
a member of the bar of the district court “may appear only with the court’s
permission . . . by verified petition on the form furnished by the clerk.” Nev. Dist.
Ct. Local R. IA 11-2(a). The Rule further states that “[t]he court may grant or
deny a petition to practice under this rule.” Id. 11-2(h); see also id. 11-2(i) (“When
2
Due to health concerns, Hansen requested permission to withdraw from the
case. The district court approved his request upon the condition that Bundy find
substitute local counsel. On October 24, 2016, Nevada attorney Bret Whipple
entered his appearance on behalf of Bundy.
4
all the provisions of this rule are satisfied, the court may enter an order approving
the verified petition for permission to practice in the particular case.”).
On March 22, 2016, Klayman filed a Verified Petition stating that he had
been retained by Bundy in connection with the Nevada indictment and requesting
pro hac vice admission to practice before the district court. Of relevance to this
petition for a writ of mandamus is the fifth question on the district court’s form,
which reads:
That there are or have been no disciplinary proceedings instituted against
petitioner, nor any suspension of any license, certificate or privilege to
appear before any judicial, regulatory or administrative body, or any
resignation or termination in order to avoid disciplinary or disbarment
proceedings, except as described in detail below.
Klayman wrote in response: “The only disciplinary case pending is in the District
of Columbia” and that he has “responded to a few complaints.” He elaborated in
an attached statement.
With respect to the disciplinary case in the District of Columbia, Klayman
stated that he had represented clients, pro bono, against his former employer,
5
Judicial Watch.3 He represented that “[t]he matter is likely to be resolved in my
favor and there has been no disciplinary action.”
As to other complaints, he explained that he “agreed to a public reprimand
before The Florida Bar” for failing to timely pay a mediated settlement to a client,
but that there was “no showing of dishonesty” and he was never suspended from
the practice of law. Separately, Klayman revealed that, roughly twenty years ago,
“two judges vindictively stated that I could not practice before them after I
challenged rulings they had made on the basis of bias and prejudice.” He
explained that those exclusions applied only to the two judges themselves, Judge
William D. Keller of the U.S. District Court for the Central District of California
and Judge Denny Chin of the U.S. District Court for the Southern District of New
York. Moreover, he advised that the “bars of the District of Columbia and Florida
reviewed these rulings and found that I did not act unethically” and that he was
currently in good standing in both jurisdictions.
2. The District Court’s March 31 Order
3
Klayman was the CEO and General Counsel of Judicial Watch. Klayman
founded Judicial Watch in 1994 and left in 2003. According to its current website,
Judicial Watch is a “conservative, non-partisan educational foundation[] [that]
promotes transparency, accountability and integrity in government, politics and the
law.” About Judicial Watch, Judicial Watch, http://www.judicialwatch.org/about
(last visited Oct. 25, 2016).
6
The district court denied the Verified Petition “for failure to fully disclose
disciplinary actions and related documents.” The district court found that
Klayman’s statement that the matter regarding Judicial Watch from the District of
Columbia “is likely to be resolved in my favor and there has been no disciplinary
action” was “misleading and incomplete.” Referring to the evidence it had found
on its own initiative, the district court pointed out that the District of Columbia
Court of Appeals Board on Professional Responsibility had received an Affidavit
of Negotiated Discipline from Klayman and a Petition for Negotiated Discipline,
signed by Klayman and counsel for the D.C. Bar, in which Klayman consented to
public censure. Neither of these documents had been disclosed by Klayman.
Because these documents were “admissions of three separate incidents of
stipulated misconduct that were not clearly disclosed in Klayman’s Verified
Petition,” the district court denied the petition, but without prejudice. The district
court then explained:
Should Klayman wish to file a new Verified Petition with the Court,
the following information should be included: (1) the case numbers
for the cases before Judge William D. Keller and Judge Denny Chin
that resulted in these judges precluding Klayman’s practice before
them; (2) verification of the review by the Bar Associations of the
District of Columbia and Florida finding that Klayman did not act
unethically before Judges Keller and Chin; (3) an updated Certificate
of Good Standing from the Supreme Court of Florida; (4) the Florida
Bar Association’s reprimand verifying that there was no showing of
7
dishonesty in connection with their disciplinary action; (5) the
Exhibits attached to this Order; and (6) verification that the matter in
the District of Columbia disciplinary case referenced in the Verified
Petition has been resolved with no disciplinary action.
3. Klayman’s Supplemental Petition
Klayman filed a “Supplement to and Renewed Petition” on April 7, 2016.4
Klayman provided evidence and explanations for items (1)–(5) of the district
court’s requirements as follows: (1) he provided the case names and citations for
the actions regarding Judges William D. Keller and Denny Chin; (2) he provided a
letter from the D.C. Bar finding no ethical violation in the Keller and Chin matters,
but said that the Florida Bar’s files were no longer accessible; (3) he provided an
updated letter of good standing from the Supreme Court of Florida; (4) he provided
a copy of Florida’s reprimand; and (5) he provided the exhibits attached to the
March order.
As to the district court’s sixth requirement, Klayman disputed the conclusion
the district court drew from the documents it had identified. The court, he said,
“appears to have misunderstood the nature and current posture of the disciplinary
proceeding underway” in the District of Columbia.
4
The district court noted that, contrary to its order, Klayman did not file a
new Verified Petition. Thus, it construed Klayman’s Renewed Petition as a request
for reconsideration of the original Verified Petition.
8
[T]he prior attempted negotiated discipline never entered into effect . . . . Bar
Counsel and Mr. Klayman had attempted to resolve the matter by agreement,
but Mr. Klayman later thought the better of having signed the affidavit and
agreeing to negotiated discipline it [sic] since he feels strongly that he acted
ethically at all times.
He also supplied a copy of a letter opinion prepared by Professor Ronald Rotunda
of Chapman University School of Law. Rotunda, who is well known in academic
circles for his expertise in legal ethics and constitutional law, stated that it “is [his]
expert opinion that in the [D.C. matter] Mr. Klayman has not committed any
offense that merits discipline.” Klayman attached what he characterized as “a post-
hearing brief” that he had filed with the D.C. Bar. Klayman, however, did not
explain what the “hearing” was to which he had appended his “post-hearing brief,”
and the brief itself did not explain the procedural posture of the proceedings before
the D.C. Bar. Klayman repeated that he was “confident of ultimately prevailing . .
. . since the ultimate finding of the Committee which heard the evidence is simply
a recommendation.” Again, Klayman did not identify what the “Committee” was,
what the “evidence” was, or to what the “ultimate finding” or “recommendation”
referred.
4. The District Court’s April 19 Order
The district court treated Klayman’s renewed filing as a request for
reconsideration and denied it on April 19, 2016. The district court said nothing
9
about five of the six conditions it imposed in the March 31 Order. It only
discussed the matter before the D.C. Bar. The court noted that Klayman “admits
that [the D.C. matter] is still pending,” and thus there was “no error with its prior
ruling.” The court ordered that “Klayman’s Verified Petition shall remain denied
without prejudice until such time as Klayman can provide proof that the ethical
disciplinary proceeding in the District of Columbia has been resolved in his favor.”
B. Mandamus Proceedings
On July 6, 2016, Bundy filed an emergency petition with this court for a writ
of mandamus requesting that the district court be ordered to admit Klayman pro
hac vice. Bundy argued that his Sixth Amendment right to counsel would be
violated if he were forced to go to trial without his attorney of choice. He claimed
that the district court “mechanistically” required that Klayman could not be
admitted until the outcome of the D.C. Bar proceeding was known. Bundy
represented that Klayman had “correctly informed the judge that the proceeding
was underway and would not be finished for another few years and that Mr.
Klayman had not been found liable of any ethics violations by the District of
Columbia Bar.” He further represented that the “slow pace of the District of
Columbia Bar should not create any assumption that that case is in any way
serious, complex, or difficult.” He repeated that Klayman has “continuously been
10
a member in good standing of the District of Columbia Bar for over 36 years and
has never been disciplined” and that even if the D.C. Bar complaint were decided
against him, “that would still not justify denial of Klayman’s application to appear
pro hac vice.”
We ordered expedited review of the petition and directed the United States,
as the real party in interest, to file an answer; we invited the district court to
address the petition “if it so desires.” We received separate responses from the
United States and the district court.
The United States “respectfully decline[d] to opine on the ultimate question
whether Klayman should be allowed to represent [Bundy].” The government
nevertheless defended the district court’s judgment as “within its discretion.” It
catalogued other cases in which Klayman was reprimanded by various courts for
speaking after the judge requested silence, making misrepresentations to the court,
ignoring court-imposed procedures and deadlines, pursuing meritless claims,
making accusations related to a judge’s race, and refusing to comply with local
rules.
The district court not only defended the grounds on which it had issued its
prior orders, it offered new evidence and grounds for refusing to grant Klayman
pro hac vice status. First, the district court reiterated that the still-pending
11
disciplinary proceedings in the District of Columbia raised ethical concerns. The
court then challenged the veracity of how Klayman described the current status of
the proceedings. Rather than “withdraw[ing] his affidavit because he felt strongly
that he had acted ethically,” as Klayman claimed, the district court unearthed
evidence that
the District of Columbia Hearing Committee reviewed Klayman’s Petition
for Negotiated Discipline and rejected it. The Hearing Committee rejected
Klayman’s affidavit because it determined that the “agreed-upon sanction of
public censure is unduly lenient.” As such, Klayman failed to disclose the
actual current disposition of his pending District of Columbia disciplinary
case, and instead provided false information to this Court by stating that he
withdrew his affidavit when, in fact, the Hearing Committee rejected it.
Second, the district court also felt that Klayman had filed an incomplete and
inaccurate Verified Petition because he had failed to mention “numerous other
courts’ findings that he is unfit to practice,” and the court cited eight cases in which
courts had commented on his “inappropriate and unethical behavior.” Third, the
district court pointed to a Second Circuit decision in which that court dismissed his
challenge to the district court’s impartiality because it was “insulting and smacked
of intimidation.” MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 138 F.3d 33, 38 (2d
Cir. 1998). The district court then observed that Bundy recently filed a “similar[]”
civil suit against the district judge individually, President Obama, and Senator
Harry Reid, alleging a conspiracy. See Bundy v. Obama, No. 2:16-cv-1047-JCM-
12
GWF (D. Nev. dismissed with prejudice Oct. 12, 2016). The district court thus
argued that it did not abuse its discretion because Klayman’s record shows a “total
disregard for the judicial process” and his admission pro hac vice would thus
“impede the orderly administration of justice.”
Klayman did not respond to the district court’s new evidence that he had
misrepresented the proceedings in the District of Columbia, nor did he address the
cases cited by the district court or the United States in which he had been
reprimanded by the courts for his conduct during the litigation. Instead, he claimed
that this evidence was “not on the record before the District Court” and was
“simply an ex post facto, non-meritorious attempt to justify the denial now that this
Court has granted expedited review of the mandamus petition.” Klayman then
repeated his claim that the affidavit had been withdrawn and that “he has a strong
case for ultimately prevailing on the merits.”
We held oral argument on an expedited basis and heard from Klayman and
the United States.
II. STANDARDS FOR ISSUING A WRIT OF MANDAMUS
Mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved for really
extraordinary causes.’” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). “As the writ is one of
13
‘the most potent weapons in the judicial arsenal,’ three conditions must be satisfied
before it may issue.” Id. (citation omitted). “First, ‘the party seeking issuance of
the writ [must] have no other adequate means to attain the relief he desires . . . .’”
Id. (first alteration in original) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 403
(1976)). Second, the petitioner must show that “[his] right to issuance of the writ
is ‘clear and indisputable.’” Id. at 381 (alteration in original) (quoting Kerr, 426
U.S. at 403). “Third, even if the first two prerequisites have been met, the issuing
court, in the exercise of its discretion, must be satisfied that the writ is appropriate
under the circumstances.” Id.
To determine whether mandamus relief is appropriate, we weigh the five
factors that we originally enumerated in Bauman v. U.S. District Court, 557 F.2d
650 (9th Cir. 1977):
(1) The party seeking the writ has no other adequate means, such as a
direct appeal, to attain the relief he or she desires. (2) The petitioner
will be damaged or prejudiced in a way not correctable on appeal.
(This guideline is closely related to the first.) (3) The district court’s
order is clearly erroneous as a matter of law. (4) The district court’s
order is an oft-repeated error, or manifests a persistent disregard of the
federal rules. (5) The district court’s order raises new and important
problems, or issues of law of first impression.
14
Id. at 654–55 (citations omitted).5 These factors are not exhaustive, see In re
Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir. 1982), and “should not be
mechanically applied,” Cole v. U.S. Dist. Court, 366 F.3d 813, 817 (9th Cir. 2004).
However, “the absence of factor three—clear error as a matter of law—will always
defeat a petition for mandamus.” In re United States, 791 F.3d 945, 955 (9th Cir.
2015) (quoting DeGeorge v. U.S. Dist. Court, 219 F.3d 930, 934 (9th Cir. 2000)).
Because our conclusion that the district court did not commit “clear error as a
matter of law” precludes issuance of the writ, we address only that Bauman factor.6
“The clear error standard is significantly deferential and is not met unless the
reviewing court is left with a ‘definite and firm conviction that a mistake has been
committed.’” In re United States, 791 F.3d at 955 (quoting Cohen v. U.S. Dist.
Court, 586 F.3d 703, 708 (9th Cir. 2009)). Because, on direct appeal, we
5
Even though Bauman was decided before the Supreme Court’s most recent
discussion of mandamus in Cheney, 542 U.S. 367, we continue to apply the
Bauman factors without separately considering the three conditions described
above in Cheney. In re United States, 791 F.3d 945, 955 n.7 (9th Cir. 2015).
6
“Clearly erroneous as a matter of law” is a standard that is not familiar to
us in any other context. “Clearly erroneous” is the standard we associate with
reviewing findings of fact. See Fed. R. Civ. P. 52(a)(6) (“Findings of fact . . . must
not be set aside unless clearly erroneous . . . .”). We assume that by “clear error” in
law, we mean something like “plain error,” the standard we use to identify when a
district court has committed an obvious error of law, but one that was not
preserved for appeal by a timely objection. See Fed. R. Crim. P. 52(b); Puckett v.
United States, 556 U.S. 129, 135 (2009).
15
“normally review a denial of a motion to appear pro hac vice for abuse of
discretion,” United States v. Walters, 309 F.3d 589, 591 (9th Cir. 2002), our review
in mandamus proceedings is “especially deferential,” In re United States, 791 F.3d
at 955. On petition for a writ of mandamus, we look to see if the district court
abused its discretion in a manner so obvious that the error is “clear” to all.
III. ANALYSIS
A. The Standards for Granting Pro Hac Vice Status
A criminal “defendant’s [Sixth Amendment] right to the counsel of his
choice includes the right to have an out-of-state lawyer admitted pro hac vice.”
United States v. Walters, 309 F.3d 589, 591 (9th Cir. 2002) (citation omitted). But
because counsel from other jurisdictions “may be significantly more difficult to
reach or discipline than local counsel,” United States v. Ries, 100 F.3d 1469, 1471
(9th Cir. 1996), this right is “circumscribed in several important respects.” Wheat
v. United States, 486 U.S. 153, 159 (1988). Importantly, “[t]here is no right of
federal origin that permits [out-of-state] lawyers to appear in state courts without
meeting that State’s bar admission requirements.” Leis v. Flynt, 439 U.S. 438, 443
(1979) (per curiam).
Federal courts have long had the authority to “establish criteria for admitting
lawyers to argue before them.” United States v. Gonzalez-Lopez, 548 U.S. 140,
16
151 (2006). They have “an independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession.” Wheat, 486 U.S. at 160;
see Ries, 100 F.3d at 1471 (courts may regulate attorneys appearing before them to
“[e]nsur[e] the ethical and orderly administration of justice”); see also In re United
States, 791 F.3d 945, 957 (9th Cir. 2015) (“[A] court’s decision to deny pro hac
vice admission must be based on criteria reasonably related to promoting the
orderly administration of justice or some other legitimate policy of the courts.”
(citation omitted)). Where an out-of-state attorney suggests through his behavior
that he will not “abide by the court’s rules and practices,” the district court may
reject his pro hac vice application. Ries, 100 F.3d at 1471.
The Local Rules for the United States District Court for the District of
Nevada provide that an attorney who has been retained to appear in a particular
case but is not a member of the bar of the district court “may appear only with the
court’s permission . . . by verified petition on the form furnished by the clerk.”
Nev. Dist. Ct. Local R. IA 11-2. Among other things, that petition must state
(4) [t]hat the attorney is not currently suspended or disbarred in any court;
(5) [w]hether the attorney is currently subject to any disciplinary
proceedings by an organization with authority to discipline attorneys at law;
[and]
(6) [w]hether the attorney has ever received public discipline including, but
not limited to, suspension or disbarment, by any organization with authority
to discipline attorneys at law.
17
Id. 11-2(b)(4)–(6). After receiving this information on a verified petition, “[t]he
court may grant or deny a petition to practice.” Id. 11-2(h).
B. Klayman’s Pro Hac Vice Status
The district court here did not abuse its discretion—much less commit clear
error—when it denied Klayman’s pro hac vice application. In its answer to
Bundy’s petition for a writ, the district court laid out a compelling case for
doubting Klayman’s ability to abide by local rules of comportment or ethics. It
pointed to three separate categories of activities that made it doubt Klayman’s
willingness to advance the ethical and orderly administration of justice in Bundy’s
case: (1) the pending D.C. disciplinary proceedings involving three separate cases
of conflict of interest, including the omissions and misrepresentations he made in
the verified petition regarding those proceedings; (2) numerous other cases in
which federal district courts have cited him for inappropriate and unethical
behavior; and (3) his pattern of perverting the judicial process with insults and
intimidation against judges personally. The district court concluded, based on
these three categories, that Klayman’s record shows a “total disregard for judicial
process” and his admission pro hac vice would thus “impede the orderly
administration of justice.” We will address the evidence for each of these grounds.
18
Before we do so, we must address Bundy’s argument about the scope of the
record. Bundy points out that a district court “must articulate some reasonable
basis for [ethical] doubts before denying the attorney’s admissions for pro hac vice
admission.” In re United States, 791 F.3d at 957; see also Ries, 100 F.3d at 1472
(“In denying a pro hac vice application, the judge must articulate his reason for the
benefit of the defendant and the reviewing court.”). Bundy takes this to mean that
any reason not articulated by the district court in its order cannot be considered by
a reviewing court. In this case, Bundy argues that we may not consider any
reasons or evidence not found in the district court’s March 31 or April 19 Orders.
However, we have never gone that far, and Bundy fails to point to any case in
which we have excluded a district court’s justifications that were provided after the
fact as, for example, in a response to a mandamus petition.
A rule barring after-acquired evidence or later-supplied rationales might well
make sense in the ordinary appeal after trial, where the district court has issued its
order denying pro hac vice status and is not heard from again on the matter. There,
we do not want to allow the opposing party, several months or years down the line,
to conjure up reasons that the district court could have given for denying pro hac
vice status, but failed to actually give—or even know of. But mandamus
proceedings in which the district court chooses to submit an answer detailing the
19
district court’s concerns about the attorney’s ethical transgressions are quite
different. We no longer need to speculate as to the district court’s possible
motivations or lament over whether to give deference to reasons the district court
might not have found persuasive in the first instance. Instead, we know exactly
why the district court would deny pro hac vice status. Moreover, allowing Bundy
to force us to limit our review only to the matters Klayman revealed in his petition
would give attorneys an incentive to mislead the courts—exactly the type of
conduct in which Klayman engaged in this case. Confirming our conclusion that
we may consider material supplied after the denial of pro hac vice status is the fact
that if we thought we were limited to considering only the district court’s stated
reasons, we would vacate and remand to permit the district court to put its
additional findings on the record and amend its order.
This has been a fluid and fast-moving proceeding. We conclude that the
entirety of the district court’s reasoning—both from its orders denying pro hac vice
status as well as its response to the petition for a writ—should be taken into
account.
1. Disciplinary Proceedings Before the D.C. Bar
The district court denied Klayman’s request “until such time as Klayman can
provide proof that the ethical disciplinary proceeding in the District of Columbia
20
has been resolved in his favor.” Klayman concedes that he is still the subject of
ongoing disciplinary proceedings by the D.C. Bar, but he strenuously argues that
they will be resolved in his favor.
The contested proceedings in the District of Columbia may or may not turn
out to be serious. Even if we had the full record before us, that question would not
be for us to answer. It is enough for us to know that the proceedings have been
going on for several years and are current. A committee held hearings in
Klayman’s case in January 2016, and Klayman submitted additional briefing to the
Bar in March 2016—contemporaneous with his application for pro hac vice status
in this case.
We do know that the charges—conflicts of interest—are serious enough that
in 2015 Klayman was willing to stipulate to “public censure.” More recently, on
January 13, 2016, a D.C. Bar Hearing Committee rejected the stipulated censure as
“unduly lenient” and, following hearings held that same month, a different Hearing
Committee made a preliminary, nonbinding finding that Klayman had violated
D.C. Rules 1.9 (conflict of interest) and 8.4(d) (conduct that seriously interferes
with the administration of justice) by “clear and convincing evidence.” It is this
preliminary finding that Klayman has disputed in his March 2016 briefing.
Although he contests whether the Bar Counsel has shown by clear and convincing
21
evidence that he has violated the rules of professional responsibility, he has argued
to the D.C. Bar that even if there was a “technical violation,” the only appropriate
sanction should be an “informal admonition.”
If the only reason the district court had offered was the bare fact of an open
disciplinary proceeding in D.C., the district court might have abused its discretion
in denying pro hac vice status to Klayman. At a minimum, the district court would
have had to make further inquiry—something beyond requiring Klayman to show
that the proceedings have been finally resolved in his favor.
But the district court laid out a second, very good reason for its decision:
although he had several opportunities to clear the record, Klayman was not
forthcoming about the nature and status of those proceedings. In his application,
Klayman—properly—disclosed that there was a “disciplinary case pending . . . in
the District of Columbia,” that the charge was conflict of interest, and that he
expected the matter to be “resolved in his favor.” The district court denied his
petition “for failure to fully disclose disciplinary actions and related documents,”
and the district court supplied documents filed in the proceeding that showed that
Klayman had agreed to “public censure.” Even then, the district court only denied
the application without prejudice to Klayman refiling. At that point Klayman was
fully on notice that he needed to be transparent about the D.C. Bar proceedings.
22
Klayman was not forthcoming with the district court. In his “renewed
application,” Klayman corrected the record—but only in part. He told the district
court that the stipulation was of no effect because he had “thought the better of
having signed the affidavit and agreeing to negotiated discipline.” Klayman may
have had second thoughts about stipulating to his “public censure,” but his
statement was woefully misleading. In fact, a Hearing Committee for the D.C. Bar
had rejected that stipulation on behalf of the Bar because it was “unduly lenient.”
That prompted the hearings in January 2016, a Hearing Committee
recommendation, and Klayman’s March 2016 brief to the D.C. Bar.
Klayman thus was on notice in the March 31 Order that his initial disclosure
of the facts was “misleading and incomplete,” yet Klayman offered only a partial
correction of the record. As the district court told us, he was not forthcoming
about the status of the D.C. proceedings: “Klayman failed to disclose the actual
correct disposition of his pending District of Columbia disciplinary case, and
instead provided false information to this Court by stating that he withdrew his
affidavit when, in fact, the Hearing Committee rejected it.” That finding is not
clearly erroneous.
Indeed, Klayman had a full and fair opportunity to correct the record when
we allowed him to respond to the district court’s filing and when we held oral
23
argument. He offered no explanation whatsoever for his failure to disclose the
current status of his case. He never advised the district court that the Hearing
Committee rejected the stipulation, that there was a recent hearing in January 2016,
and that the Hearing Committee made a recommendation to the D.C. Bar. In fact,
we still do not have the most recent documents filed in Klayman’s disciplinary
case.7
These reasons more than justify the district court’s decision to deny
Klayman pro hac vice admission to practice in the district court in Nevada. We
have previously held on direct review that it was not an abuse of discretion to deny
pro hac vice status because of “pending disciplinary proceedings,” a “failure to
state in his pro hac vice application that [the attorney] was subject to pending
disciplinary proceedings and . . . his failure to directly address those proceedings
when so requested.” United States v. Ensign, 491 F.3d 1109, 1115 (9th Cir. 2007).
When the district court follows our cases, it cannot abuse its discretion.
2. Sanctionable Conduct in Other Proceedings
7
Klayman did submit his March 2016 brief to the district court, and some of
these facts may be gleaned from his brief. But to date, we have not seen any
recommendation or briefing papers filed by the Hearing Committee following the
three days of hearings in January 2016. Submitting the papers from one side in a
contested matter is not full disclosure.
24
Klayman failed to mention, but the district court found quite relevant,
“numerous other courts’ findings that he is unfit to practice” based on his
“inappropriate and unethical behavior.” The district court supplied us with a 2007
order of the Supreme Court of New York, which denied Klayman’s petition to
proceed pro hac vice because “Klayman’s record demonstrates more than an
occasional lapse of judgment, it evinces a total disregard for the judicial process.”
Order Denying Pro Hac Vice Application at 4, Stern v. Burkle, 867 N.Y.S.2d 20
(Sup. Ct. 2008). The New York court collected examples from other courts, and
the district court referred to these instances of Klayman’s sanctioned, sanctionable,
or questionable behavior:
• The Federal Circuit affirmed the district court’s revocation of Klayman’s
ability to appear before the district court pro hac vice in perpetuity and its
sanctioning of Klayman for accusing the trial judge of anti-Asian bias and
“unreasonably and vexatiously multiplying the proceedings.” Baldwin
Hardware Corp. v. FrankSu Enter. Corp., 78 F.3d 550, 555 (Fed. Cir. 1996).
• The Second Circuit affirmed the district court’s revocation of Klayman’s
ability to appear before the district court pro hac vice in perpetuity and its
sanctioning of Klayman for “undignified and discourteous conduct that was
degrading to the [district court] and prejudicial to the administration of
justice” by, among other things, making accusations of racial and political
bias and acting “abusive[ly] and obnoxious[ly].” MacDraw, Inc. v. CIT
Grp. Equip. Fin., Inc., 994 F. Supp. 447, 455 (S.D.N.Y. 1997), aff’d, 138
F.3d 33 (2d Cir. 1998).
• Klayman was sanctioned for filing an untimely complaint and opposing the
government’s motion with “frivolous filings” that “wasted time and
25
resources of defendants as well as of the court.” Wire Rope Importers’
Ass’n v. United States, 18 C.I.T. 478, 485 (Ct. Int’l Trade 1994).
• Klayman exhibited “often highly inappropriate behavior” and his
performance “was episodically blighted by rude and unprofessional behavior
which was directed toward the presiding judge and opposing counsel.”
Material Supply Int’l, Inc. v. Sunmatch Indus., Co., No. Civ. A. 94-1184,
1997 WL 243223 at *8, *10 n.7 (D.D.C. May 7, 1997), aff’d in part and
reversed in part, 146 F.3d 983 (D.C. Cir. 1998).
• Klayman “apparently misread (or never read) the local rules” and the district
court threatened sanctions for any future failures to comply with local rules.
Alexander v. FBI, 186 F.R.D. 197, 199 (D.D.C. 1999). The district court
“gr[ew] weary of [Klayman’s] use—and abuse—of the discovery process”
and “ha[d] already sanctioned [Klayman] for making misrepresentations to
the court, allowing the court to rely upon those representations in a favorable
ruling, and then later contravening those very (mis)representations.”
Alexander v. FBI, 186 F.R.D. 188, 190 (D.D.C. 1999).
• Klayman responded to the district court’s orders with a “forked tongue” and
made arguments with “malicious glee.” Judicial Watch of Fla., Inc. v. U.S.
Dep’t of Justice, 159 F. Supp. 2d 763, 764 (D.D.C. 2001).
• Klayman made arguments regarding the conduct of the district court that
were “bizarre” and “beyond the far-fetched.” Dely v. Far E. Shipping Co.,
238 F. Supp. 2d 1231, 1241 (W.D. Wash. 2003).
Of these eight instances of revocations or denial of pro hac vice status,
sanctions for ignoring local and federal rules, and complaints of misrepresentations
and omissions, Klayman mentioned only two to the district court. And in doing so,
the district court noted, Klayman still failed to accept any responsibility for his
actions. Instead, he claimed that the judges were being “vindictive” in their orders
26
forever barring him from appearing pro hac vice in their courtrooms. He failed,
however, to mention that these two “vindictive” district court judges’ orders were
affirmed by their respective federal appellate courts, both of which commented on
Klayman’s inappropriate behavior. See MacDraw, 138 F.3d at 37–38; Baldwin
Hardware, 78 F.3d at 555.
The district court went on to highlight specifically a more recent case, which
Klayman failed to mention, in which the district court’s summary judgment order
noted how Klayman “has routinely shown a disregard for [the district court’s]
Local Rules.” Klayman v. City Pages, No. 5:13-cv-143-Oc-22PRL, 2015 WL
1546173, at *8 n.7 (M.D. Fla. Apr. 3, 2015), aff’d, 650 F. App’x 744 (11th Cir.
2016). The Florida district court had “become quite frustrated with [Klayman’s]
various tactics to avoid Court rules throughout the course of this litigation.
Unfortunately, the Court learned early on in this case that this approach to
litigation is the norm and not the exception for [Klayman].” Id.
Moreover, a quick Westlaw search has found three additional cases,
bringing the grand total to twelve, in which Klayman’s ability to practice law in an
ethical and orderly manner was called into question:
• Klayman’s “fail[ure] to comply with even the most basic of discovery
requirements” was “not simply an unexplained hiccup in an otherwise
diligently prosecuted case” and thus warranted sanctions. Klayman v.
27
Barmack, No. 08-1005 (JDB), 2009 WL 4722803, at *1 (D.D.C. Dec. 4,
2009).
• After “the patent failure of the Court’s use of lesser sanctions in the past to
have any discernible effect on Klayman’ conduct,” Klayman’s “consistent
pattern of engaging in dilatory tactics, his disobedience of Court-ordered
deadlines, and his disregard for the Federal Rules of Civil Procedure and the
Local Rules of this Court” necessitated further, more severe, sanctions.
Klayman v. Judicial Watch, Inc., 802 F. Supp. 2d 137, 138–39 (D.D.C.
2011).
• Klayman repeatedly did not “attempt to comply” with local rules, and the
district court threatened sanctions for any further violations. Montgomery v.
Risen, No. 15-cv-02035-AJB-JLB, 2015 WL 12672703, at *1 (S.D. Cal.
Oct. 2, 2015).
Klayman has a reputation as a vigorous litigator, but this is not a flattering
record, and not one that the district court should ignore. When a district court
admits an attorney pro hac vice, the attorney is expected to follow local rules. See
In re United States, 791 F.3d at 957 n.8 (“A district court would clearly act within
its discretion in denying pro hac vice admission if, for example, an attorney’s
actions led the court to conclude the attorney would not ‘abide by the court’s rules
and practices’ . . . .” (quoting Ries, 100 F.3d at 1471)). Klayman has shown an
unwillingness or inability to do that. The dilemma for a district court presented
with such a record is that, once an out-of-state attorney is admitted, the district
court has limited tools in its arsenal for maintaining order in the courtroom.
Repeated and willful violations of court rules must be dealt with by the district
28
court alone. The district court can refer the attorney to a bar, but has no means to
follow up its referral. Instead, the district court is limited to its own powers.
Those powers are not insubstantial, see, e.g., 18 U.S.C. § 401; 28 U.S.C. § 1927;
Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991) (discussing the inherent
powers of the courts), but the exercise of those powers can be disruptive to trial
proceedings and, in an extreme case, may call into question the fairness of the trial
itself.
We fully acknowledge that “attorney[s] may with impunity take full
advantage of the range of conduct that our adversary system allows”—they have “a
right to be persistent, vociferous, contentious, and imposing, even to the point of
appearing obnoxious when acting in their client’s behalf.” In re Dellinger, 461
F.2d 389, 400 (7th Cir. 1972). However, the district courts must carefully balance
that vigorous advocacy against the need for order and decorum in the proceedings.
See In re McConnell, 370 U.S. 230, 236 (1962). Wherever that line lies, Klayman
has crossed it more than once, and the district court did not abuse its
discretion—and certainly did not come close to committing clear error—in taking
account of Klayman’s past behavior and denying him pro hac vice status.
3. Attempts to Intimidate the District Court
29
Finally, the district court expressed concern that Klayman has shown
disregard for district judges in the past by confronting them personally. The
district court pointed to the Second Circuit’s finding that Klayman had challenged
U.S. District Judge Denny Chin’s impartiality because he was Asian-American8
and had been appointed by President Clinton. The court found the challenge to the
judge’s racial and ethnic heritage “extremely serious.” MacDraw, 138 F.3d at 37.
“Nor should one charge that a judge is not impartial,” the court emphasized,
“solely because an attorney is embroiled in a controversy with the administration
that appointed the judge.” Id. at 38. The Second Circuit found that these charges
were “discourteous” and “degrading” to the court, “prejudicial to the
administration of justice,” and “insulting and smacked of intimidation.” Id. at
37–38. The court “[did] not hesitate to hold that the suggestions regarding Judge
Chin’s impartiality violated the Code of Professional Responsibility.” Id. at 38.
These lessons have not been learned. After the district court denied
Klayman’s pro hac vice petition, but before Bundy asked this court for mandamus
relief, Bundy filed a Bivens suit against Chief Judge Gloria Navarro, President
8
The Second Circuit noted that in proceedings in the Central District of
California, “[d]isturbingly, Klayman . . . accused the district judge of being anti-
Asian.” MacDraw, 138 F.3d at 38 n.3 (citing Baldwin Hardware, 78 F.3d at 555,
562).
30
Barack Obama, U.S. Senator Harry Reid, and others, in their personal capacities,
alleging a conspiracy to violate his civil rights. See Bundy v. Obama, No. 2:16-cv-
1047-JCM-GWF (D. Nev. dismissed with prejudice Oct. 12, 2016).9 He dismissed
the suit on October 12, 2016, only after we asked for briefing in this mandamus
petition. Reasonably, the district court found these two cases “similar[].” As in
the case involving Judge Chin, Klayman’s participation in the suit against Chief
Judge Navarro personally “smack[s] of intimidation” and retaliation.
C. The Dissent’s Reasons for Granting the Writ of Mandamus
The dissent offers two reasons for why Bundy’s request for Klayman to be
admitted pro hac vice outweigh the district court’s concerns: (1) “the complexity
of the proceeding against [Bundy] and his controversial political views raise
concerns about his ability to retain competent counsel,” Dissenting Op. at 10, and
(2) “denying Klayman admission raises troubling concerns about the fairness of
Bundy’s coming trial,” id. at 13. We do not think that either of these reasons
withstands scrutiny.
9
The suit was filed by attorney Hansen. It does not list Klayman as counsel.
In response to questions at oral argument about the suit, Klayman displayed
knowledge of the content of the lawsuit and at first admitted to being a plaintiff
before clarifying that he wasn’t. It is apparent that Klayman played some role in
the preparation and filing of that suit.
31
First, there is nothing in the record about Bundy’s efforts to secure
competent counsel. The dissent declares that “only a fraction of the bar
nationwide—let alone in Nevada—has the experience and resources necessary to
give Bundy a vigorous defense.” Id. at 10 (emphasis added). Additionally, the
dissent claims that “[o]ut of that fraction of qualified practitioners, there is likely
an even smaller proportion that would actually accept Bundy’s representation.
Bundy’s anti-government views and high-profile status among those who oppose
federal hegemony make the prospect of representing him daunting for many
seasoned defense attorneys.” Id. at 10–11.10
Nothing in the record remotely supports these statements. For example, we
do not have an affidavit from anyone—Bundy, Klayman, Hansen, or anyone
else—telling us of unsuccessful efforts to find counsel. The dissent can only state
10
The dissent also focuses on the fact that the trial is scheduled for February,
“a little over three months from now.” Dissenting Op. at 6–7. That is not the
district court’s fault. Klayman filed his pro hac vice application in March; the
district court denied it without prejudice nine days later. He filed a renewed
application in April; the district court denied it without prejudice twelve days later.
Bundy then waited three months before filing his petition for a writ of mandamus.
Our Clerk’s Office, after discussions with Bundy’s counsel, held the petition until
September and presented it to us in October. The six-month delay in seeking
extraordinary relief from the district court’s March and April Orders must be laid
at the feet of Bundy and this court, not the district court.
If Bundy thinks he cannot be prepared for his February 2017 trial, he may
ask the court to delay the trial. See 18 U.S.C. § 3161(h)(8)(B)(iv).
32
that since the district court’s denial in March 2016, “Bundy seems to have failed at
finding suitable replacement trial counsel.” Id. at 11 (emphasis added). That is not
evidence. And if even there were some evidence to suggest this, the district court
could not have anticipated the problem. There is no clear error in the district
court’s orders.
Second, the dissent has questioned the fairness of the trial before it even
begins: but for Klayman’s “capable representation, there will be serious doubts
about the fairness of the proceeding.” Id. at 13. Again, with all due respect, there
is nothing in the record but the dissent’s speculation about “this risk of
fundamental unfairness” in a forthcoming trial. Id. at 13–14. There is no abuse of
discretion or clear error in the district court’s order.
The dissent acknowledges that Klayman might have “been selective in his
disclosures” to the district court and there might have been a “relevant omission”
resulting in Klayman “com[ing] near the line.” Id. at 14, 15. For the reasons we
have described in some detail, supra at 20–31, Klayman engaged in selective
disclosures, made relevant omissions, and crossed the line, but if even the dissent
thinks Klayman came “near the line,” that is not clear error justifying a writ of
mandamus.
33
Finally, the dissent dismisses the rulings by Judges Keller and Chin because
they were “issued 22 and 18 years ago” and may be “poor predictors of Klayman’s
likely behavior today.” Dissenting Op. at 16–17. If Klayman had acted
responsibly in the time since then, we might be inclined to agree with the dissent
that conduct twenty-years in the past is outdated. But, as the district court properly
advised us in her filing, Klayman has not changed. Judges have sanctioned,
chastised, and rebuked Klayman repeatedly over the past twenty years: in 1997,
1999, 2001, 2003, 2009, 2011, and twice in 2015. As the Middle District of
Florida observed last year: “[T]his approach to litigation is the norm and not the
exception for [Klayman].” City Pages, 2015 WL 1546173, at *8 n.7. The
Eleventh Circuit affirmed that judgment in 2016. 650 F. App’x 744.
V. CONCLUSION
Klayman has made misrepresentations and omissions to the district court
regarding the ethics proceedings before the District of Columbia Bar; he has shown
a pattern of disregard for local rules, ethics, and decorum; and he has demonstrated
a lack of respect for the judicial process by suing the district judge personally. By
any standard, the district court properly denied his petition to be admitted pro hac
vice. Bundy is entitled to a fair trial, defended by competent, vigorous counsel of
his choosing. But his right to such counsel does not extend to counsel from outside
34
the district who has made it a pattern or practice of impeding the ethical and
orderly administration of justice.
The writ of mandamus is DENIED.
35
FILED
In re Cliven D. Bundy, No. 16-72275 OCT 28 2016
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
We confront in this case an unusual confluence of circumstances. A highly
controversial criminal defendant is a few months away from an enormous trial
effort in which he and eighteen other individuals are defendants. The defendant’s
chosen attorney has been denied admission pro hac vice to the district court, raising
in my mind serious concerns about the defendant’s ability to mount a vigorous
defense and receive a fair trial. Despite the majority’s expressed apprehensions
about the chosen attorney’s willingness to follow the rules of professional conduct
and the orders of the district court, while recognizing the high standards for
mandamus relief, I would hold that the writ should issue. My concerns about the
defendant’s ability to present a strong defense and receive a fundamentally fair trial
are simply too great, leading to my dissent.
I
On March 2, 2016, Cliven D. Bundy and eighteen others were indicted on
various federal charges for their alleged involvement in a “massive armed assault”
on federal officials near Bunkerville, Nevada nearly two years prior. The now-
unsealed Superseding Indictment alleges that on April 12, 2014, Bundy led
“hundreds of people, including gunmen armed with assault rifles” in a coordinated
assault against the government officials.
The events that day grew out of a dispute between Bundy and the federal
Bureau of Land Management. According to the Superseding Indictment, for over
20 years Bundy, a rancher, had refused to obtain permits or pay the required fees
for his cattle to graze on federal public lands. As a result, since 1998 Bundy had
been under a federal court order to remove his trespassing cattle. He never
complied with the order, and in 2013 federal officials received authorization to
seize and remove Bundy’s cattle from the land. They began the process of seizure
and removal on April 5, 2014.
While the removal process was ongoing, it is alleged that Bundy and his co-
defendants used the internet and other means of interstate communication to recruit
gunmen and “Followers” to travel to Nevada to help Bundy make a show of force
against the federal government. The defendants’ online communications allegedly
included requests for help from members of anti-government militia groups. The
content of the communications referred to the federal government as corrupt and to
government officials as thieves. Bundy was portrayed as a victim of government
abuse whose sovereign rights had been violated. Other statements alleged in the
Superseding Indictment show that Bundy viewed himself as involved in a “range
war” with federal officials.
By the morning of April 12, 2014, more than 400 people had allegedly
2
shown up to help Bundy, many of them allegedly armed with assault rifles or other
weapons. Approaching from two different vantage points, Bundy and these
Followers allegedly used firearms to threaten federal officers into giving up
Bundy’s cattle. The Government also claims that after getting his cattle back,
Bundy organized his Followers into armed security patrols and checkpoints for the
purpose of protecting his cattle against future government seizures.
II
A writ of mandamus is an extraordinary writ used “to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise
its authority when it is its duty to do so.” Will v. United States, 389 U.S. 90, 95
(1967) (internal quotation marks omitted). We have jurisdiction to grant such writs
under 28 U.S.C. § 1651.
For a writ of mandamus to issue, the party seeking the writ must satisfy three
requirements. First, the petitioner must have no other means of attaining the
desired relief. In re United States, 791 F.3d 945, 954 (9th Cir. 2015). Second, the
right to issuance of the writ must be “clear and indisputable.” Id. (quotations
omitted). Third, even if the first two prerequisites are met, we must be satisfied in
the exercise of our discretion that the writ is appropriate under the circumstances.
Id. at 955. In assessing whether the writ is appropriate, we examine five factors:
3
(1) whether the party seeking the writ has no other adequate means, such as a direct
appeal, to attain the relief he or she desires; (2) whether the petitioner will be
damaged or prejudiced in a way not correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter of law; (4) whether the district court’s
order is an oft-repeated error, or manifests a persistent disregard of the federal
rules; and (5) whether the district court’s order raises new and important problems,
or issues of law of first impression. Bauman v. U.S. Dist. Court, 557 F.2d 650,
654–55 (9th Cir. 1977). These factors should be viewed as guidelines, not
requirements, and should be weighed together, as appropriate to the facts of the
case. DeGeorge v. U.S. Dist. Court., 219 F.3d 930, 934 (9th Cir. 2000). Typically,
the absence of the third factor, clear error as a matter of law, will defeat the
petition. Id.
In my view, both the first and second Bauman factors weigh solidly in favor
of granting relief. We have previously recognized that parties denied pro hac vice
admission are unable to obtain immediate relief through an appeal because the
denial of admission is neither a final appealable order under 28 U.S.C. § 1291 nor
an interlocutory order appealable under 28 U.S.C. § 1292. See In re United States,
791 F.3d at 958. Losing counsel of choice through a denial of pro hac vice
admission also produces a harm that is not correctable on a later direct appeal. Id.
4
at 959. I view the fourth Bauman factor as weighing against granting the writ. As
I discuss below, this case is unusual in that Bundy faces an imminent, massive and
complex trial, as well as difficulties in retaining qualified counsel. These
circumstances make any error by the district court of a type not likely to be
repeated often. And I view the fifth factor as weighing slightly in favor of granting
relief. The central issue in this case—whether denying Klayman’s admission
significantly impairs Bundy’s ability to present a strong defense—is vastly
important, but is only an issue of first impression in the sense that the
circumstances Bundy finds himself in are relatively atypical. I more fully discuss
these circumstances below.
The outcome of this case turns not on the first, second, fourth, or fifth
Bauman factors, but on the third: whether the district court clearly erred in denying
Klayman’s pro hac vice application. In assessing this factor, I maintain a keen
awareness of the deference we give to the district court. We grant mandamus
petitions only sparingly, as writs of mandamus are an “extraordinary or drastic
remedy.” Calderon v. U.S. Dist. Court for Cent. Dist. of California, 163 F.3d 530,
534 (9th Cir. 1998) (en banc) (internal quotation marks omitted), abrogated on
other grounds by Woodford v. Garceau, 538 U.S. 202 (2003). The task of looking
for clear error is a manifestation of this deference: “clear error” requires a more
5
significant mistake than “mere error.” In addition, a district court’s decision to
accept or deny a pro hac vice application is itself reviewed only for abuse of
discretion. United States v. Walters, 309 F.3d 589, 591 (9th Cir. 2002). We do not
find an abuse of discretion unless the district court committed legal error, or made
a factual determination that was illogical, implausible, or without support in
inferences that may be drawn from the record. United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc).
We face then a dose of double deference: we review the district court order
under the abuse of discretion standard; and we grant mandamus relief in only
exceptional circumstances, looking for evidence of clear error. See In re United
States, 791 F.3d at 955. There are also pragmatic reasons for deferring to a district
court decision denying pro hac vice admission. After all, it is the district court
judge, not an appellate panel, that is on the front lines in the courtroom, dealing
closely with lawyers and having to do so in a way that ensures the orderly
administration of justice.
Yet, even in this highly deferential setting, there are limits on trial court
discretion, and there are times when we should act.
III
An overriding consideration, in my view, is that a little over three months
6
from now, Bundy is scheduled to go to trial on sixteen serious federal charges, and
may do so without a lawyer of his choice; either without representation at all, or
with a different lawyer, not of Bundy’s first choice, who comes into the case so
late that there should be concern that the quality of representation may be
substantially impaired. The charges against Bundy include conspiracy to commit
an offense against the United States, 18 U.S.C. § 371, conspiracy to impede and
injure a federal officer, id. § 372, assault on a federal officer, id. § 111 (a)(1) and
(b), threatening a federal law enforcement officer, id. § 115(a)(1)(B), use and carry
of a firearm in relation to a crime of violence, id. § 924(c), obstruction of the due
administration of justice, id. § 1503, interference with interstate commerce by
extortion, id. § 1951, and interstate travel in aid of extortion, id. § 1952. If
convicted on some or all of the charges, Bundy, who is 70 years old, could spend
the rest of his life in prison.
The trial promises to be especially long and complex. The Superseding
Indictment alleges that Bundy led “hundreds of people” in “a massive armed
assault.”1 Along with Bundy, the government seeks to prosecute 18 other
1
While I mention the subject matter of the allegations against Bundy
because they are relevant to his ability to retain capable counsel, I express no view
on the merits of the underlying case. The merits of the criminal charges are not
before us, and I have not reviewed any evidence relating to them.
7
individuals involved in that alleged assault, all in one proceeding. This enormous
trial effort is the product of a longer-than-two-year investigation that involved
government interviews with more than 150 witnesses. The Government ultimately
expects to produce about 1.4 terabytes of digital discovery to the defendants. The
litigation is sufficiently complicated that the district court designated the
proceeding a complex case under the Speedy Trial Act. See 18 U.S.C. §
3161(h)(7)(B)(ii).
In addition to its size and complexity, the trial effort against Bundy and his
cohorts is unusual in that Bundy’s political views, hostile to the United States
federal government, will likely be center-stage. The allegations in the indictment
portray Bundy as being strongly opposed to the federal government and as
considering himself involved in a “range war” with federal officials. The
Government alleges that Bundy and his Followers communicated with members of
anti-government militias, recruiting them to Bundy’s cause. Bundy also allegedly
made statements referring to the government’s seizure as “abuse,” and to
government agents as “thieves,” among other similar refrains. While Bundy’s trial
and any potential conviction will not, and must not, be based on politics, it is likely
that the evidence at trial will put his controversial political views in the courtroom
with him.
8
The unique circumstances surrounding Bundy’s prosecution bring with them
a likelihood of constitutional problems. Like any defendant, Bundy’s Sixth
Amendment “right to the counsel of his choice includes the right to have an
out-of-state lawyer admitted pro hac vice.” Walters, 309 F.3d at 592 (quotations
omitted). While that right is not absolute, it may only be abridged to serve a
“compelling purpose.” Id. (quotations omitted). We have not specified the factors
that a district court must consider in determining what satisfies a compelling
purpose for pro hac vice denial. In re United States, 791 F.3d at 957. However,
case law on pro hac vice admission indicates that we should evaluate the district
court’s exercise of discretion in part based on the particular needs of the party
seeking representation.
In re United States is instructive. There, we held that a district court’s
general rule prohibiting the pro hac vice admission of Justice Department attorneys
amounted to clear error. Id. at 958. In reaching that conclusion, we emphasized
the special needs of the party before the court—the United States. See id. (“[A]
district court should consider the unique position of the government as a litigant in
determining whether to exercise its discretion.” (internal quotation marks
9
omitted)).2 In United States v. Ensign, a case in which we ultimately affirmed the
district court’s pro hac vice denial, we likewise based our decision in part on the
particular needs of the party—a criminal defendant who was already well into trial
with different counsel at the time of the pro hac vice application. 491 F.3d 1109,
1115 (9th Cir. 2007). That we would give considerable weight to the needs of the
party makes sense: whether a purpose for denying pro hac vice admission is
“compelling” depends both on the importance of the purpose and the effect of the
denial.
Looking to Bundy’s needs and circumstances, both the complexity of the
proceeding against him and his controversial political views raise concerns about
his ability to retain competent counsel in a timely fashion. With so many
defendants, documents, and potential witnesses in the case, only a fraction of the
bar nationwide—let alone in Nevada—has the experience and resources necessary
to give Bundy a vigorous defense. Out of that fraction of qualified practitioners,
there is likely an even smaller proportion that would accept Bundy’s
representation. Bundy’s anti-government views and high-profile status among
2
Though the United States was not a criminal defendant in In re United
States, and so the Sixth Amendment did not apply, the case still supports
considering the needs of the party when deciding on pro hac vice admission
generally.
10
those who oppose federal hegemony make the prospect of representing him
daunting for many seasoned defense attorneys. It is unsurprising, then, that not
only has Bundy sought out-of-state counsel, but that he has found himself retaining
an attorney with a controversial reputation of his own. It may be the case here that
a controversial advocate is the best chance at a competent defense for a
controversial defendant.
This point is made stark by the fact that since Klayman’s initial pro hac vice
denial on March 31, 2016, Bundy seems to have failed to find suitable replacement
trial counsel. This is so despite Bundy’s impending trial date and Klayman’s
second pro hac vice denial. Instead, Bundy is currently represented before the
district court by his local counsel, Nevada attorney Joel Hansen, who is by
Hansen’s own admission unable to provide Bundy with an adequate defense.
Hansen is part of a small Nevada firm lacking the resources to try this massive
case. Moreover, Hansen has attempted to withdraw from Bundy’s defense on the
ground that he suffers from a spine and neck injury. According to the
Government’s representations at oral argument before us, Hansen’s motion has
been granted on the condition that Hansen find replacement counsel. Shortly prior
to argument, Nevada attorney Bret O. Whipple filed a notice of appearance on
Bundy’s behalf, but only for the limited purpose of filing certain pretrial motions.
11
Government counsel stated at argument that Whipple was currently in negotiations
with Bundy over his representation. After our oral argument on the mandamus
petition, the Government advised us that Whipple entered another appearance on
behalf of Bundy, this time “for the purpose of full representation throughout the
duration of the trial.” But Klayman responded that despite this new language from
Whipple, Bundy is still considering whether to hire Whipple and has not paid
Whipple any retainer, and that regardless of the additional appearance of Whipple,
Klayman’s assistance is still needed by Bundy on the defense team. At this point, I
am not confident that Bundy presently has retained counsel adequate to represent
him vigorously through trial.
Klayman appears ready and qualified to represent Bundy at trial. He is a
former federal prosecutor with experience litigating high-profile cases. He has
worked, in part during his time at Judicial Watch, in bringing lawsuits over
significant public policies. See, e.g., Klayman v. Obama, 957 F. Supp. 2d 1
(D.D.C. 2013) (challenge to government telephone metadata collection), vacated
and remanded, 800 F.3d 559 (D.C. Cir. 2015). He has almost 40 years of legal
experience and is a member in good standing of both the Florida and Washington,
D.C. Bars. Though not currently admitted before the district court, Klayman has
been in contact with Bundy about this case since around the time of Bundy’s
12
indictment. Klayman presumably faces a much shorter learning curve than other
potential counsel, including, for example, Whipple.
Given Klayman’s present familiarity with this case and the difficulties
Bundy likely faces in retaining other capable counsel, denying Klayman admission
raises troubling concerns about the fairness of Bundy’s coming trial. The right to
counsel clause of the Sixth Amendment “was designed to assure fairness in the
adversary criminal process.” Wheat v. United States, 486 U.S. 153, 158 (1988). In
the typical choice of counsel case, concerns about fairness are present, but they do
not predominate, because missing out on the defendant’s preferred lawyer does not
mean missing out on qualified counsel altogether; the normal assumption is that
the defendant will be able to retain some other qualified attorney. See id. at 159.
But because of Bundy’s practical and predictable problems finding capable
representation in the time remaining before trial, the denial of his chosen counsel
risks leaving him without fully qualified counsel. The powerful concerns about
fundamental fairness that animated landmark right-to-counsel (not merely choice-
of-counsel) cases like Powell v. Alabama, 287 U.S. 45 (1932), and Gideon v.
Wainwright, 372 U.S. 335 (1963), carry particular weight here. If Klayman’s
denial of admission results in Bundy going to trial without capable representation,
there will be doubts about the fairness of the proceeding. This risk of fundamental
13
unfairness supports concluding that the district court acted outside the range of its
permissible discretion.
I recognize that the ethical concerns of the majority and the district court,
particularly their concern whether Klayman has been candid and forthcoming in
his representations seeking pro hac vice admission, have some weight. Klayman
properly disclosed the ongoing disciplinary proceeding in his initial application for
pro hac vice admission, saying that the proceeding had not yet been resolved. This
disclosure was accurate. But then, after the district court discovered his Petition
for Negotiated Disposition, he may have come near the line of lack of candor in
explaining it away. He stated that the disposition never went into effect because he
“later thought the better of having signed the affidavit . . . since he feels strongly
that he acted ethically at all times.” Yet, what had happened was a D.C. Board on
Professional Responsibility Hearing Committee had rejected the disposition as too
lenient for the bar’s tastes.3
3
This bar committee rejection for undue leniency does not indicate how
the merits of the proceeding will come out. The decision rejecting the negotiated
disposition said that it did not consider certain “potential mitigation” factors that
would be considered in determining whether any ultimate violation was “justified.”
These potential mitigation factors included that Klayman might not have actually
had a conflict in two of the three representations, that he represented two of the
individuals because he believed that “they would have no other recourse in their
lawsuits,” and that the representations were all performed pro bono. Moreover, a
(continued...)
14
At oral argument before us, Klayman explained his view of the difference by
saying that after the rejection, he at first continued to negotiate with counsel for the
D.C. Bar, but then decided to withdraw from those negotiations. While this shows
that Klayman was not lying in his initial explanation, he still seems to have been, at
the least, selective in his disclosures to the district court. I agree with Klayman
that he was not obligated to re-litigate the D.C. proceeding before the district court
and that he did not have to provide the district court with the entire record from
D.C. And if his disclosures were selective, still he is an advocate, an advocate
representing defendant Cliven Bundy, and after submitting a compliant response to
the questions in the pro hac vice application, he had no greater duty to disclose any
possible blemish on his career or reputation beyond responding to the district
court’s further direct requests. Yet, for him to tell the district court that it was
wrong about the negotiated discipline being in effect and to not also tell the court
why the disposition lacked effect—its rejection by the bar committee—may have
been a relevant omission.
3
(...continued)
statement of a bar committee in this context is not, in my view, of controlling
weight because it is not a final determination of ethical violations. Instead, the
committee’s views remain subject to other information it could consider, and the
whole matter remains subject to review by the federal Court of Appeals for the
D.C. Circuit if a final resolution by the bar association was reached that Klayman
appealed.
15
The other concerns raised by the district court in its briefing in this court and
its two orders denying Klayman admission, in my view, carry less weight. First,
the allegations underlying the D.C. proceeding are unproven, and we cannot know
what their resolution will be. The district court held this uncertainty against
Klayman, stating in its two orders denying his admission that Klayman would need
to show that the proceeding was resolved in his favor before the court would admit
him. This approach is contrary to the our legal tradition’s instinct to presume
innocence until finding guilt. Of course, the D.C. proceeding involves attorney
discipline and not criminal prosecution, but fundamental principles still have
weight—at least in terms of evaluating the district court’s exercise of discretion.
At this time, Klayman is still a member of the D.C. Bar, and has not been
disciplined by its Board on Professional Responsibility. Moreover, Klayman has
submitted a letter from Professor Ronald Rotunda, an expert on legal ethics,
expressing the opinion that Klayman’s actions at issue were ethical. This is all the
more reason not uncritically to credit unproven bar allegations.
The district court and the majority also point to the two instances of federal
judges banning Klayman from their courtrooms. While serious punishments, these
orders were issued 22 and 18 years ago. Two decades—half of Klayman’s
career—is enough time for the incidents to be relatively poor predictors of
16
Klayman’s likely behavior today. The district court, as well as the New York state
court that denied Klayman pro hac vice admission, noted that other judges, even
recently, have in their written orders expressed irritation or disapproval of
Klayman’s actions. It may be that Klayman is not an attorney whom all district
court judges would favor making an appearance in their courtroom. It seems he
has been, and may continue to be, a thorn in the side. Still, concerns about trial
judge irritation pale in comparison to a criminal defendant’s need for robust
defense. In providing a full and fair defense to every criminal defendant, there will
by necessity be occasions when the difficult nature of the case evokes sharply
confrontational lawyering. In tough cases with skilled prosecutors, aggressive
positions by defense lawyers are sometimes an unavoidable part of strong
advocacy, and contribute to making the proceeding an ultimately fair one for the
defendant.
I do not dismiss lightly the district court’s ethical concerns regarding
Klayman, especially the issue of candor. The district court had good grounds to be
worried about Klayman appearing before it. But the need to provide a vigorous
defense for Bundy is a superordinate concern. Bundy faces a very complex trial on
serious criminal charges and a potential lack of qualified representation. If
convicted, he may spend the rest of his life in prison. We cannot evaluate ethical
17
concerns without considering this context. The district court did not fully consider
this bigger picture, and did not ensure that Bundy’s need for a vigorous defense
was given due weight. In my view, these circumstances should be controlling in
our assessment of whether the district court’s decision to deny Klayman pro hac
vice admission was an abuse of discretion and clear error.
I also do not suggest that district courts generally must blink over ethical
concerns. At least two other circuits have held that the only thing a district court
may consider in pro hac vice admission is whether the out-of-state attorney is
guilty of conduct so unethical as to justify disbarment. See In re Evans, 524 F.2d
1004, 1007 (5th Cir. 1975); Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553,
1561 (11th Cir. 1997). Our circuit, by contrast, permits denial of pro hac vice
admission based on a broader standard—one that grants district courts leeway to
consider the facts pertinent to the particular case. See In re United States, 791 F.3d
at 956 (“We need not announce specific factors that should inform a district court’s
exercise of its discretion to deny pro hac vice admission.”). In holding the view
that the district court abused its discretion and clearly erred here, I need not suggest
that our circuit’s law should be disregarded and should conform with that of the
Fifth and Eleventh Circuits. I can agree with the principle reaffirmed in In re
United States that in appropriate cases, ethical concerns not meriting disbarment
18
may be sufficient to justify pro hac vice denial. 791 F.3d at 956. But the matter
before us is not such an appropriate case. Concerns about Bundy receiving a
proper defense to ensure a fair criminal trial in my view should be considered
controlling by our panel.
I also emphasize that district courts have available to them many tools short
of denying admission that allow them to keep unruly lawyers in check. Through
the power of sanctions, and in extreme cases even contempt proceedings, district
courts can expect to be able to control a lawyer who is considered by the court to
be recalcitrant, tricky, or deceptive, subject to the normal legal standards governing
sanctions. At oral argument, Klayman advised us that he would follow all orders
issued by the district court regarding the orderly administration of justice, and that
he would abide by any other orders of the district court. I accept his representation
and expect that if he were admitted and then deviated from it, the district court
would be well-equipped through its sanction power to take corrective action.4
I acknowledge that we grant mandamus relief sparingly, particularly in cases
challenging the denial of pro hac vice admission. Yet given the number of serious
4
The Government made clear at oral argument that it does not
challenge Klayman’s representation, does not urge that Klayman not be admitted,
and generally suggests that Bundy is entitled to a vigorous defense.
19
charges Bundy faces, the complexity of his trial, his likely difficulty in finding
other qualified counsel, and Klayman’s own qualifications, I conclude that the
district court’s concerns over Klayman’s practice history and candor are
outweighed by Bundy’s need for adequate representation in this important and
complex case. Based on the unusual facts of this case and the considerations that I
have voiced, I would hold that the district court abused its discretion, resulting in
clear error. If, as the majority holds, our circuit’s law on abuse of discretion and
clear error for mandamus relief requires its conclusion to deny the mandamus
petition, then in my view that law stands as a barrier to justice and should be
altered. In an unusual case such as this, involving a massive federal prosecution of
many persons and allegations that their sentiments and alleged criminal conduct
were sharply opposed to our federal government, it is particularly important to
ensure that target defendants are able to be represented and defended vigorously.
There is doubtless some merit to the bright-line views of the Fifth and Eleventh
Circuits that a counsel of choice should not be eliminated through the pro hac vice
admission process absent an ethical violation that could merit disbarment. But
even accepting our circuit’s broader view that ethical problems short of those may
be pertinent to a district court’s decision on whether a lawyer should be admitted
pro hac vice, there are nonetheless limits on a district court’s exercise of discretion,
20
and I think they are transgressed here.
To give a metaphorical example, we would not need a finely-tuned judicial
scale to determine that a district court abused its discretion if it found that a mouse
outweighed an elephant. That would be an abuse of discretion, and clear error.
And here, even if the purported ethical flaws marshaled by the majority and the
district court are beyond “mouse” proportions, they are still relatively small in this
special context, where the elephant is Bundy’s general entitlement to the counsel of
his choice and to a vigorous defense at trial. In my view, concerns about whether
at this stage Bundy will have adequate and vigorous representation, absent
Klayman, outweigh the ethical concerns that have been expressed by the district
court and the majority.
I respectfully dissent.
21
Bundy v. United States District Court for the District of Nevada
Court: Court of Appeals for the Ninth Circuit
Date filed: 2016-10-28
Citations: 840 F.3d 1034
Copy CitationsCombined Opinion