Re: Motion to DisqualifYPaul Levy for Conflict of Interest

Honorable Judge George J. Hazel

6500 Cherrywood Lane
Greenbelt, MD20770
Re: Kimberlin v. National Bloggers Club,
No, GLH13-3059
Aug 4, 2014
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Dear Judge Hazel:
Sixmonths ago, I filed a motion to disqualifYAttorney Paul Levy because he is
laboring under multiple conflicts of interest. That motion has not yet been ruled on
but the conflicts continue and Mr. Levy is using them against me in many adverse
ways.
As noted in the motion, Mr. Levy used to be my attorney and has consulted with me
in a legal capacity on various occasions over the past two decades, including as
recently as 2012. He currently works for Public Citizen Litigation Group. An
organization that I am working for in an advisory capacity, Protect Our
Elections.org, is also currently represented by Public Citizen Litigation Group in a
case pending before Judge Richard Leon in the USDistrict Court for the District of
Columbia. Public Citizen, Protect Our Elections, Kevin Zeese and CraiBHolman v. FEC,
No. 14-148 (RJL) Public Citizen is a plaintiff in the case as is attorney Kevin Zeese,
who is the attorney for Protect Our Elections. For the past several weeks, I have
been working with the attorneys involved with that case regarding a Motion for
Summary Judgment that was filed last Thursday. ECF23, 7/30/14. Myinvolvement
in that case, which began as a complaint to the Federal Elections Commission, pre-
dated the filing of the instant lawsuit.
I have repeatedly advised Mr. Levy that he is laboring under multiple conflicts of
interest and that his conflicts have had and will have an adverse effect on me. As I
made clear in my recusal motion, I never waived the attorney client relationship
with Mr. Levy, and he cannot do so unilaterally. Despite this, he has refused to
withdraw from the case. Instead, he continues to file pleadings and has used those
conflicts to harm me, and now my teenage daughter.
Yesterday, he published another blog post defaming me, calling into question your
recent rulings, and opining that Judge Grimm followed "the time-honored tradition
of dumping his most burdensome and least attractive case onto the docket of a
newly-appointed judge:' He stated that my daughter will face withering and
harmful cross-examination from the defendants if I file for a preliminary injunction,
and used his blog post to once again threaten my family and me for exercising my
First Amendment rights to redress.
. ..,",
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"It looks to me as if Brett Kimberlin is digging himself a deeper hole with
every paper he files in the Maryland federal litigation ..... And many of the
claims in his lawsuit are so plainly frivolous that Kimberlin could easily end
up being under a vexatious-litigant injunction requiring him to get
permission for future pro se lawsuits.
He may well be at the point that he is the one who needs to get out of the
litigation as quickly as possible, lest he make matters worse for himself and
his family. Whether he has the self-restraint, and the good judgment, to seek
that way out remains to be seen."
Attached.
Judge Hazel, enough is enough from Mr. Levy. He has continued to file pleadings in
this case after I forcefully invoked my attorney client relationship/privilege, and he
has engaged in extra judicial statements in order to try to intimidate me and harm
me for exercising my First Amendment rights to redress. And, in a sick twisted way,
he, in his blog post yesterday, has adopted Defendant Walker's "corruption of blood"
justification for attacking my teenage daughter. He is blaming me for the bullying
attacks on her, like those who blame the woman for the rape because she wore
something attractive.
I urge you to rule on the Motion to Disqualify and hold a hearing if necessary. If, as I
assert in my motion and declaration, Mr. Levy is laboring under multiple conflicts of
interest, he should not be filing pleadings in this case or representing Defendant Ace
of Spades. .
Sincerely,
.,"" K;mb"B~
Case 8:l3-cv-03059-GJH Document l74 Filed 08/04/l4 Page 2 of 7
Friday, August 01,2014
Brett Kimberlin's Dilemma
by Paul Alan Levy
Readers of this blogmay recall that Brett Kimberlin has filed a defamation action against
two dozen bloggers and other defendants; Public Citizen is in the case for the limited
purpose of defending the anonymity of one of the bloggers. Since that blog post, there have
been a number of developments, including a decision by the trial judge to follow the time-
honored tradition of dumping his most burdensome and least attractive case onto the
docket of a newly-appointed judge.
Last week, Kimberlin served on the defense lawyers (but not the pro se defendants) a letter.
which he said he was attempting to file under seal, asking Judge George Hazel to allow him
to file a motion for a preliminary injunction compelling the defendants to remove from their
various web sites the various statements over which he is suing, and barring four pro se
defendants from making future negative statements about him. (The previous judge in the
case, trying to cope with a large number of filing from pro se parties who plainly detest each
other, imposed a pre-motion letter requirement reminiscent of the SONYand EON). Judge
Hazel denied the request and granted it in part - he refused to allow Kimberlin to seek a
preliminary injunction over the repetition of statements alleged in the Second Amended
Complaint, saying that preliminary relief could only be sought about statements post-dating
the complaint And even then the motion would have to be limited to four defendants
identified in the letter-request (not including the anonymous blogger).
Kimberlin's filing, and the judge's response, raise a host of interesting issues. For one, the
judge's approach to the pre-Amended Complaint and post-Amended Complaint dichotomy
. strikes me as odd, because the purpose of a preliminary injunction is to protect against
irreparable injury pending a decision on the merits. If post-complaint statements are not
the subject of the litigation on the merits (Kimberlin having been instructed that his Second
Amended Complaint would be the last permissible amendment), why is the judge
in this case the right one to consider a preliminary injunction about those statements?
Indeed, a defamation lawsuit over the statements could not be filed in the District of
Maryland as a related case because there is no diversity-two ofthe pro se defendants live
in Maryland.
Kimberlin's Failed Expectations About the Impact of Suing
Kimberlin's letter request explains that he expected the suit to induce the defendants to
"remove ... the defamatory content outlined in the complaint:' but that the defendants have
uniformly refused any removal while the litigation continued. He goes on to explain the
impact he had hoped his lawsuit would have: "I filed this suit because Defendants would not
stop their attacks on my family and me. I hoped that the filing of the suit would cause
Defendants to [rein] in their reprehensible conduct" Kimberlin goes on to assert that not
only have the criticisms continued, but that his children have been adversely affected by
what their friends, and their friends' parents, have learned about him as a result of the
attacks, and he puts this forward as a basis for a preliminary injunction. He indicates that,
for example, that other parents won't let their children have sleepovers with his daughter.
For the purpose of this blog post, I will assume that there are some blogposts that are
having an adverse effects on his family and even on his children, although Kimberlin's
history of prevarication, and indeed convictions for crimes of dishonesty notto speak of the
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dishonesty to which he admitted as quoted in "Citizen K," make it hard to take anything he
says at face value. But that does not mean he has any chance of getting the posts he does
not like taken down.
To the contrary, a public figure libel plaintiff gets relief against criticism only if he proves
that the defendants have made false.statements of fact (not rhetorical hyperbole) and
proves by clear and convincing evidence that they made the false statements with actual
malice. And if the libel defendants truly believe in the truth of their criticisms, the effect of
suing them may simply be to prompt them to repeat and even amplify their criticisms. If the
plaintiffis right about falsity and actual malice, of course, this sort of repetition is highly
unwise, because it increases the damages that may be awarded. And the fact that
Kimberlin's children have to pay the price of having a notorious father is a tragedy that his
critics ought to consider. But the decision whether to run such risks rests with the
defendants.
The Strict Rule Against Preliminary Injunctions Against Defamation
Moreover, the harms caused by defamation are remedied by an award of damages.
Preliminary injunctions to prevent defamation, however serious the effect of the statements
on the plaintiffs' reputation, are strictly forbidden by the First Amendment as prior
restraints. We at Public Citizen have generally taken a firm stance against preliminary
injunctions in libel cases because the possibility of getting such injunctions, particularly
when sought in the plaintiffs home court against a defendant who lives elsewhere, gives
plaintiffs too much incentive to pursue meritless libel claims on which they are unlikely to
succeed after full and fair litigation, assuming that the defendant can get that far. It remains
an open question (ably addressed by Dayid Ardia) whether the rule against prior restraints
bars a permanent injunction against statements found actionable subject to First Amendent
standards after a full and final adjudication, but the general rule, followed in the Fourth
Circuit whose precedents govern the Maryland federal trial court where Kimberlin filed
suit, is that equity will not enjoin a libel.
Kimberlin has every right to represent himself, of course, but had he consulted with a
lawyer who could explain how defamation litigation works, he would have learned that
filing a lawsuit does not necessarily force the defendants either to remove criticisms or to
stop making criticisms.
Another way in which filing a defamation suit may cause accusations to be taken down, or at
least deter the defendants from posting new criticisms, is that the defendants may retain
counsel who warn of the high cost of defending against libel suits, and indeed give their
clients cautious advice that discourages further criticisms. Such impact can be exacerbated
when the plaintiff either has significantly greater financial resources than the defendants,
and thus can litigate them into oblivion, or where the plaintiff has sued pro se, and thus can
impose the expenses of litigation on the defendants without incurring any expenses
himself. Reading between the lines of Kimberlin's court filings and his communications
with defendants and their counsel, Kimberlin may well have been encouraged to expect
such consequences by defense reactions to previous pro se libel suits that he has filed; he
claims to have received either damages, or promises not to repeat criticisms, from other
critics. Again I find it difficult to take anything Kimberlin says at face value given his past,
but even ifhe is telling the truth about these past results, that would not establish that he
had good grounds for his complaints about past criticisms, only that he may well have had
the benefit of strike suit settlements.
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In this case, that strategy has not paid off because some of the defendants are getting pro
bono representation, or perhaps representation under libel insurance policies, while other
defendants are just as pro se as Kimberlin is, and hence lacking in the financial incentives
about litigation costs that might induce them to retract or suspend their attacks. Moreover,
many of the defendants have apparently been outraged by Kimberlin's lawsuit against them,
and are showing thatthey firmly believe in the truth of their criticisms, and so they are
making Kimberlin the focus of their public statements even though, had he left them alone,
they might well have moved on the other targets. Some of them, indeed, may well be
basking in the attention that his lawsuit has given them among other bloggers who detest
Kimberlin; some are using the suit to appeal for donations.
Kimberlin has been claiming that several defendants are already in discussions with him
about paying him to be dropped from the case - an apparent effort to stampede some
defendants into paying up to avoid being left in the case after other defendants have paid
less. I have been asking around, though, and from what I have been told there is no
defendant who admits to being in discussions about paying Kimberlin to settle out of the
case. I challenged Kimberlin on this point, and he did not give me the name of any
defendant who is in discussions abut settlement for a payment of money to Kimberlin.
Kimberlin's Effort to Keep His Materials Under seal
Kimberlin compounded his problems by asking that his request for leave to file for a
preliminary injunction be filed under seal. The Fourth Circuit strongly disfavors the sealing
of court filings, and prescribes an arduous course of notice to the public with a detailed
justification of sealing, opportunity for any person to object to sealing, and then a detailed
ruling that is appealable to the Fourth Circuit by any outside intervenor. Judge Hazel made
short work of Kimberlin's attempt at sealing - he both ruled on the request and placed both
his ruling, and Kimberlin's profferred sealed filing, on the public record. Presumably,
Kimberlin was given the chance to withdraw the paper instead (as the local rules provide);
perhaps he pressed on, and accepted the consequences of public filing, because he wanted a
prompt ruling on whether he could move for a preliminary injunction.
Because Kimberlin offered no public justification for this request for sealing, we can only
speculate about his reasoning; the best indication is the aspect of the request that says he
plans to file under seal affidavits from himself and from a fifteen-year old daughter detailing
the impact of the challenged statements on his family. Presumably, he was hoping to
conceal this reference from public scrutiny.
But I find it doubtful that Kimberlin will be able to keep his affidavit, or his child's affidavit,
about the harms suffered under seal. In Doe V. Public Citizen, the Fourth Circuit was
unwilling to allow a company to prevent public access to litigation documents reflecting
false reports that its products had caused certain consumer injuries, and showing the harm
that disclosure could cause its business. Similarly, if Kimberlin wants a court to issue
unprecedented prior restraints against his critics, the public is entitled to know what harms
are or are not enough to justif'y such drastic relief.
Will Kimberlin Subject His Daughter to a Public Trial?
Moreover, it does not seem to me likely that submitting affidavits about claimed harm are
going to be enough - the defendants he seeks to restrain are entitled to be confronted by
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their accusers face-to-face, and to have the chance to cross-examine; and given the intense
hostility between the parties that the courts have previously noted, there is no reason to
think these pro se defendants might not want to take their pound of flesh. Indeed,
considering that the judge has indicated that Kimberlin needs to make specific showings
about the harm caused by the specific statements against which he wants relief, the
defendants might well start asking questions about exactly why parents won't let their
daughters have sleepovers at the Kimberlin household. Is it because they learned that he
used to be a major drug dealer, importing large quantities of drugs from Mexico? Or
because he was convicted of a series of bombings that left some people severely injured? Or
is it because they learned that a newspaper article in Indiana reported on the murder of the
grandmother of a pre-teen girl who was worried that Kimberlin was going out with a
daughter she considered irresponsible so that he could get access to the grand-daughter?
Or maybe because, after he got out of jail, and already in his forties, Kimberlin was allegedly
singing rock and roll songs about the joys of sex with teenage girls, and because a DC-area
publication that interviewed him about the songs praised him for his honesty about how
older men feel about attractive teenagers. Or, was it some more recent, post-Second
Amended Complaint statement that is depriving his daughter of sleepovers?
If Kimberlin seeks relief, he is going to have to show through the testimony of some person
with personal knowledge just what the reasons are that his daughter's friends parents are
giving for getting in the way of his daughter's social life. Presumably, that would be the
daughter herself. The pro se defendants against whom relief is sought might choose to
cross-examine her.
In urging me not to pointto the First Amendment as a reason why he cannot get a prior
restraint, Kimberlin urged me to consider "the human costs."Butas I see it, Kimberlin
needs to look in the mirror when he is thinking about who is responsible for those costs.
And he could easily make it worse if he moves for a preliminary injunction relying on the
evidence he has described. We will learn by August 28, the deadline given by the judge for
the filing of a preliminary injunction motion, whether Kimberlin is so self-centered that he
would put a teenage daughter though such a public spectacle just so that he can seek a
narrow injunction, confined as Judge Hazel has said it must be to post-Second-Amended-
Complaint statements by a handful of defendants, indeed an injunction what would be
forbidden as a prior restraint and, if issued, subject to summary reversal.
Kimberlin Faces a Vicious Cycle
It looks to me as if Brett Kimberlin is digging himself a deeper hole with every paper he files
in the Maryland federal litigation. The news that he was seeking a preliminary injunction
against pro se defendant Walker led Walker to post the Washington City Paper interview
with Kimberlin about his raunchy song lyrics, thus bringing greater attention to the very
parts of his past that Kimberlin hopes to conceal. And many of the claims in his lawsuit are
so plainly frivolous that Kimberlin could easily end up being under a vexatious-litigant
injunction requiring him to get permission for future pro se lawsuits.
He may well be at the point that he is the one who needs to get out of the litigation as
quickly as possible, lest he make matters worse for himself and his family. Whether he has
the self-restraint, and the good judgment, to seek that way out remains to be seen.
Case 8:l3-cv-03059-GJH Document l74 Filed 08/04/l4 Page 6 of 7
to get permission for future pro se lawsuits.
He may well be at the point that he is the one who needs to get out of
the litigation as quickly as possible, lest he make matters worse for
himself and his family. Whether he has the self-restraint, and the good
judgment, to seek that way out remains to be seen.
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