Bundy v. United States District Court for the District of Nevada
2016 U.S. App. LEXIS 19479
| 9th Cir. | 2016Background
- Cliven Bundy was indicted in D. Nev. on a 16-count superseding indictment arising from a 2014 armed standoff; he retained local counsel and sought to add out-of-state attorney Larry Klayman pro hac vice.
- Nevada local rule requires verified disclosure of any disciplinary proceedings, suspensions, or public discipline when seeking pro hac vice admission.
- Klayman disclosed a pending D.C. Bar matter and past reprimands but omitted or misstated material documents and the current status of the D.C. proceedings (including a rejected negotiated discipline and a Hearing Committee recommendation).
- The district court denied Klayman’s verified petition without prejudice for incomplete/misleading disclosures and later denied his renewed request until the D.C. matter was resolved in his favor.
- Bundy petitioned this court for a writ of mandamus to compel admission, arguing Sixth Amendment counsel-of-choice rights; the government and district court opposed, citing Klayman’s disciplinary history and prior sanctions.
- The Ninth Circuit majority denied mandamus, finding no clear error or abuse of discretion in the district court’s reliance on (1) the pending D.C. disciplinary proceedings and Klayman’s misleading disclosures, (2) multiple prior sanctions/denials and pattern of rule violations, and (3) attacks on judges; the dissent would have granted the writ given trial complexity and potential inability to secure comparable counsel.
Issues
| Issue | Plaintiff's Argument (Bundy) | Defendant's Argument (District/US) | Held |
|---|---|---|---|
| Whether mandamus should compel admission pro hac vice | Denial infringes Sixth Amendment right to counsel of choice; Klayman is in good standing and the D.C. matter is not a basis to bar admission | District court permissibly exercised discretion based on ethics concerns, omissions, and prior sanctions | Denied: no clear error or abuse of discretion in denying pro hac vice admission |
| Whether the district court may rely on after-acquired rationales in mandamus review | Bundy argued review should be limited to reasons on the face of the district court’s orders | Ninth Circuit allowed consideration of the district court’s later-submitted explanation in mandamus proceedings | Affirmed: appellate review may consider district court’s supplemental answer in mandamus context |
| Whether a pending out-of-state disciplinary proceeding alone justifies denial | Bundy: pending proceeding is unproven and should not bar admission; Klayman disclosed it | District court: pending proceedings plus misleading omissions reasonably bear on fitness and candor | Held: pending discipline combined with misleading disclosures justified denial absent further proof in favor of applicant |
| Whether Klayman’s past sanctions/behavior justify denial | Bundy: past matters (some old) are poor predictors; Klayman is qualified and Bundy needs him | District court/US: pattern of sanctions, pro hac vice revocations, and attacks on judges indicate risk to orderly administration of justice | Held: district court properly considered pattern of past misconduct and need to preserve ethical, orderly proceedings |
Key Cases Cited
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (mandamus is extraordinary remedy with three prerequisites)
- Kerr v. U.S. Dist. Court, 426 U.S. 394 (1976) (mandamus/prerequisite: no adequate alternative)
- Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) (five-factor mandamus test)
- United States v. Walters, 309 F.3d 589 (9th Cir. 2002) (Sixth Amendment includes pro hac vice counsel-of-choice but is circumscribed)
- United States v. Ries, 100 F.3d 1469 (9th Cir. 1996) (courts may deny pro hac vice where attorney likely won’t abide by rules)
- Wheat v. United States, 486 U.S. 153 (1988) (balancing counsel-of-choice against court interests)
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (courts set criteria for admitting attorneys)
- In re United States, 791 F.3d 945 (9th Cir. 2015) (mandamus standards; deference; considering denial of pro hac vice)
- United States v. Ensign, 491 F.3d 1109 (9th Cir. 2007) (denial of pro hac vice affirmed where pending discipline and nondisclosure)
- MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 138 F.3d 33 (2d Cir. 1998) (attorney’s accusations against judge were insulting and intimidating)
- Baldwin Hardware Corp. v. Frank Su Enter. Corp., 78 F.3d 550 (Fed. Cir. 1996) (affirming pro hac vice revocation and sanctions)
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (inherent powers of courts to sanction and control litigation)