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DC Appeals Court Affirms Sidelining Of Attorney Larry Klayman, Who Attempted To Litigate Both Sides On Multiple Occasions

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Larry Klayman is a famous lawyer. Perhaps more infamous than famous at this point, but he's a lawyer in every jurisdiction he hasn't been sanctioned in yet. But fear not! Klayman will get disciplined wherever possible, if only to own the libs.Own the libs, he may. But federal courts refused to be owned. And Klayman -- who I will freely admit was at least willing to mount a solid challenge to NSA surveillance -- will apparently have a bit more free time to tend to his herd of free-range libs (whom he apparently owns)… at least according to those willing to continue supporting his urge to blog post through it.The DC Circuit Court of Appeals, on the other hand, does not care how many libs Klayman has owned through stunt litigation. Instead, it has expressed its displeasure as courts often do by imposing limits on Klayman's litigational escapades.So, how owned are the libs? Let's ask the court [PDF]. (via Reason)

Suspended for ninety days by the District of Columbia Court of Appeals, Larry Klayman, a member of this court’s bar, seeks to avoid reciprocal discipline.
Bingo and/or bango:
For the reasons set forth below, we impose a reciprocal ninety-day suspension and refer this matter to the Committee on Admissions and Grievances for recommendations on whether further discipline is warranted.
[waits for laughter to die down]How did Klayman manage to get this smacked down by a federal court? Let us count the ways. And by "the ways," I mean "holy shit, bro, what even the fuck."A brief history: Larry Klayman founded Judicial Watch in 1994. Since then, he has engaged in plenty of litigation, not all of it misguided. When not defending people who don't have legitimate grievances, Klayman has also engaged in FOIA litigation and challenges of domestic surveillance. He's not a totally useless lawyer. But he's become more useless thanks to a Trump presidency and a rabid "conservative" base that has encouraged all of his worst instincts.But this case has nothing to do with his political leanings or his inability to choose clients worthy of representation. The courts have cautioned Klayman before about switching sides when criticized by clients for his ineffective representation. In 2013, the DC Circuit handled a complaint against Klayman brought against him by a former director of Judicial Watch, who accused him of contributing to a "hostile work environment."After this, Klayman left Judicial Watch and struck out on his own. Then he decided to approach the court, informing it he was now representing the person who accused him of creating a "hostile work environment" and asked the court to vacate its dismissal of the former director's lawsuit.Then he decided to insert himself into another court case -- again, without the plaintiff's approval. Louise Benson sued Judicial Watch and Klayman after her $15,000 donation towards the purchase of building was swallowed by Judicial Watch and no building was ever secured. Klayman decided to call himself "co-counsel," and entered the case without the permission of the court or his former employer, Judicial Watch.Finally, Klayman represented Peter Paul in a case involving campaign fundraising via Judicial Watch. After Klayman left Judicial Watch, the organization decided to stop representing Peter Paul. But that didn't stop Klayman, who decided he could continue to represent Paul, even without the permission of his former employer, Judicial Watch.This string of events ended with Klayman being suspended by the DC Circuit for ninety days. The court also ordered Klayman to attend a legal education class on conflicts of interest.Klayman appealed, apparently suggesting the court system should allow him to continue to engage in conflicts of interest and haphazard "representation" of clients who made no effort to secure his "help."The Appeals Court disagrees. There's nothing in Klayman's arguments that demand a reversal of any disciplinary steps taken against him.
This argument is entirely without merit. Even though Mr. Klayman owed a duty of zealous representation to Cobas, Benson, and Paul, Rule 1.9 is absolute. Absent informed consent from Judicial Watch, Mr. Klayman may not “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of” Judicial Watch. As Judge Lamberth put it, “Rule 1.9 provides no exception to its prohibition on successive representation.”Next, Mr. Klayman quotes at length from a portion of the Rotunda letter that relies heavily on the Supreme Court’s decision in Maples v. Thomas, 565 U.S. 266 (2012). There, the Court concluded that counsel’s failure to properly withdraw from representation of a death row inmate excused the inmate’s failure to meet a crucial filing deadline because counsel’s effective abandonment was an “extraordinary circumstance.” See Maples, 565 U.S. at 289. From this, Rotunda concludes that “it [was] reasonable and understandable that Mr. Klayman believed that he had an ethical obligation . . . to zealously and diligently represent” Cobas, Benson, and Paul. Br. 7 (internal quotation marks omitted). Maples, however, has nothing whatsoever to do with this case, as the lawyers involved there were not representing a client whose interests were adverse to a former client. Maples is about client abandonment, not switching sides.
A house divided against itself by an interloping legal "representative" cannot stand.
Mr. Klayman’s remaining arguments are equally without merit. He invokes the doctrine of laches but fails to cite a case from either this circuit or the D.C. Court of Appeals that applies laches to disciplinary proceedings, nor are we aware of one.
This is not the sort of thing you want to hear from a federal court… unless you've convinced yourself this is a compliment.
In a self-styled “Supplement to Respondent’s Initial Brief,” filed just after oral argument, Mr. Klayman told us that “[t]he reason that he did not immediately inform” this court of his suspension “was because” his petitions for rehearing and rehearing en banc of his suspension “were pending [in the D.C. Court of Appeals] at the time and Mr. Klayman believed that he would be successful in obtaining a favorable ruling.” [...] This is an astonishing argument.
Enjoy the pejorative, Larry.The suspension survives Klayman's "astonishing" attempt to overturn it. Trying to play both sides of lawsuit never plays well in court, no matter what court system level this tactic is deployed in. Klayman is relegated to sidelines in the DC Circuit, a place he has historically done a great deal of business.


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posted at: 12:00am on 07-Apr-2021
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Activision Once Again Abuses DMCA To Try To Bury Leak Of New 'CoD' Content

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Back in February of 2020, we wrote about several odd attempts by Activision to use the DMCA takedown process to try to bury leaks of content in its Call of Duty game franchise. It all started with the company attempting to first take down Reddit posts that showed leaked cover art for Call of Duty: Warzone, before Activision then attempted to have Reddit unmask the poster of the image in an attempt to track down where the leak came from. While Activision certainly isn't the first company that has attempted to bury leaks using DMCA notices, it was a fairly high profile attempt, which, of course, just meant that the Streisand Effect took over and suddenly tons of people were seeing the image in media outlets reporting on the matter, such as at Techdirt.One would think the lesson learned from that episode would be that trying to unboil an egg like this through the DMCA process was futile. Instead, it seems that Activision thought the lesson was that it should go after media outlets. Recently, content for an upcoming map addition to Warzone leaked and VideoGamesChronicle (VGC) reported on it.

VGC can confirm that the work-in-progress live-action spot, which was first shared by Twitter account On Thin Ice, is authentic and shows snippets of the new 1980s Warzone map which we understand will replace the current Verdansk at the end of the season, with an in-game event marking the transition on April 22.It appears that the new map will be an evolution of Verdansk, rather than an entirely new design. The leaked footage shows Cold War-era landmarks replacing Verdansk’s own points of interest, including an in-construction Stadium and an aqueduct replacing the Dam. Airport, TV Station and Downtown can also be spotted with a 1980s makeover.
So, content leaks, VGC reports on it. That's about as straight a journalistic enterprise as there can be. And, yet, Activision went into its DMCA takedown mode, targeting not only the original leaked footage of the new map, but also the sites and social media accounts for outlets reporting on it.
While there's been no official confirmation from Activision, the publisher has been cracking down on the leak: at least one video has been taken down from YouTube, and news site Charlie Intel says it has received a DMCA notice from Activision.
And the Twitter account for VGC itself was targeted and locked due to Activision's actions.
It is one thing to target leaked footage itself. It's entirely another to get hosts and platforms to take down journalistic content over that same leak. Once the genie is out of the bottle, to compound metaphors, it is flatly an abuse of the DMCA to target speech protected by the First Amendment over it.And beyond that admittedly major component... what precisely is the point of all this? Once again we have a situation where Activision is supercharging the public's knowledge of a leak it supposedly wants to suppress with actions that, at best, aren't proper and at worst make it look like a massive corporate bully. Perhaps some will believe that this is some sort of marketing ploy and that Activision's real goal with all of this is to get posts like this written.But between Activision's past behavior and Occam's Razor... I think not.

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posted at: 12:00am on 07-Apr-2021
path: /Policy | permalink | edit (requires password)

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