In Re: Henry L Klein

Filing 21

ORDER DENYING REQUEST FOR HEARING by Chief District Judge William P. Johnson. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: HENRY L. KLEIN

No. 1:23-mc-00034-WJ

ORDER DENYING REQUEST FOR HEARING
Henry L. Klein notified the Court that “he was suspended by the Louisiana Supreme Court
effective June 27, 2023.” Notice of Suspension at 1, Doc. 1, filed October 27, 2023; see also In
re: Henry L. Klein, 362 So.3d 392 (La. May 18, 2023) (per curiam).
The undersigned notified Mr. Klein that the Local Rules of Civil Procedure for the District
of New Mexico do not allow an attorney who has been suspended from the practice of law to
practice before this Court and ordered Mr. Klein to show cause why the Court should not suspend
him in accordance with D.N.M.LR-Civ. 83.2(c) (“Rule of Good Standing”) due to his suspension
by the Supreme Court of Louisiana. See Order to Show Cause at 2-3, Doc. 4, filed October 30,
2023 (notifying Mr. Klein that he may request the undersigned to appoint a Panel of Judges to
review the State disciplinary proceedings).
Mr. Klein filed a Response to the Order to Cause stating that a Panel of Judges is not
necessary and that his petition of certiorari regarding the State of Louisiana’s suspension of Mr.
Klein would be considered in November. See Response at 7, Doc. 6, filed November 2, 2023; see
also Klein v. Office of Disciplinary Counsel, No. 23-261, --- S.Ct. ---, 2023 WL 9007363 (Mem.)
(denying Mr. Klein’s petition for writ of certiorari on November 20, 2023). Mr. Klein also filed
several other documents in support of his Response. See Doc’s 8-12, filed November 2-5, 2023.
After reviewing Mr. Klein’s Response and supporting documents, the undersigned
suspended Mr. Klein indefinitely after finding Mr. Klein had not established by clear and
convincing evidence that he is entitled to relief from the Rule of Good Standing. See Order of

Suspension at 11-12, Doc. 14, 2023. The undersigned ordered the Clerk provide a copy of this
Order to the Judges presiding over pending cases in which Mr. Klein appears as counsel and
ordered that the Judges presiding over those cases may allow Mr. Klein to continue to appear for
whatever time they deem appropriate so as not to prejudice his clients. See Four Winds Behavioral
Health, Inc. v. United States Small Business Administration, No. 1:23-cv-00984-JHR-LF; In
House Convenience, LLC v. United States of America, No. 1:23-cv-00985-LF-JFR.
On January 17, 2024, after Mr. Klein filed notices that he intended to seek reinstatement
to the Federal Bar of the United States District Court for the District of New Mexico, United States
Magistrate Judge Laura Fashing, in Four Winds, and United States Magistrate Judge John F.
Robbenhaar, in In House Convenience, ordered Mr. Klein to either secure his reinstatement to
practice before the United States District Court for the District of New Mexico, or file a motion to
withdraw, by February 16, 2024. See Doc. 8, filed in Four Winds; Doc. 9, filed in In House
Convenience.
Mr. Klein then filed a “Report on Proceedings in the Eastern District of Louisiana,” along
with eight attachments, which is now before the undersigned. See Doc. 16, filed February 8, 2024
(“Report”) (with eight documents totaling 83 pages attached). The Report: (i) states that the
Louisiana Supreme Court suspended Mr. Klein for filing overly-zealous pleadings; (ii) states the
Chief Judge of the Eastern District of Louisiana issued a scheduling order in Mr. Klein’s
disciplinary proceeding in the Eastern District of Louisiana; (iii) notes Mr. Klein’s suspension in
the District of New Mexico by the undersigned and suggests the Louisiana Supreme Court’s order
upon which the undersigned relied was misleading and states that the Louisiana Supreme Court
had no justification for suspending Mr. Klein; and (iv) states Judge Fashing and Judge
Robbenhaar’s Orders setting a February 16, 2024, deadline for Mr. Klein’s reinstatement or motion

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to withdraw “would endanger the most valuable aspect of the In-House Convenience case,
Magistrate-Judge Yarbrough’s ruling in Four Winds Behavioral Health.” Report at 4. Mr. Klein
also cites two cases for the proposition that federal court discipline does not automatically flow
from discipline by state courts, but does not address the fact that the undersigned did not
automatically suspend Mr. Klein based on the Louisiana Supreme Court suspension. See Order of
Suspension at 2-9 (considering whether: (i) the procedure resulting in discipline by the Louisiana
Supreme Court was so lacking in notice or opportunity to be heard as to deny due process; (ii) the
application of the Rule of Good Standing would result in grave injustice; and (iii) Mr. Klein’s
misconduct warranted substantially less severe discipline).
Mr. Klein states:
Respondent seeks oral argument before all four judicial officers involved . . .This
case has landmark attributes . . . If Respondent is in danger of ending his career in
infamy, he asks to face the members of this Court live and in color . . . Respondent
was advancing the ends of justice, fighting an “…odious purchaser of litigation…”
. . . Telling the truth has wrought Respondent a career-ending order under very
suspicious circumstances of [Louisiana Office of Disciplinary Counsel] and
GIROD [party in underlying case in Louisiana state court] combining to SILENCE
the very pesky Henry Klein . . . Respondent would like to fly to Albuquerque before
this Court makes a final decision and fight for the right to finish the job which he
has started against the USDA.
Report at 6-7 (seeking a one-hour hearing).
Mr. Klein subsequently filed three additional documents. The first cites a United States
Supreme Court decision issued February 8, 2024, on a “similar issue [that] has been raised by
Respondent in the multiple cases he has handled from Four Winds Behavioral Health v. USDA,
decided by Magistrate-Judge Yarbrough, to the case at bar.”

Supplement by Respondent

Regarding SCOTUS Ruling and Request for Live Presentation of Issues at 1, Doc. 17, filed
February 12, 2024 (“Supplement”) (with an attachment of a brief Mr. Klein filed in a case in the
Civil District Court for the Parish of Orleans, State of Louisiana). Mr. Klein renews his request to
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make a presentation to the undersigned and Judges Fashing, Robbenhaar and Ritter because Mr.
Klein’s withdrawal from Four Winds and In House Convenience “will leave a very important case
with precedential value lawyer-less” and “In-House Convenience has landmark written all over
it.” Supplement at 2-3. The second document is a Notice in which Mr. Klein states “How and
why the Louisiana Supreme Court wrote the scathing May 18 suspension order is very disturbing”
and attaches a brief Mr. Klein filed in a case in the Civil District Court for the Parish of Orleans,
State of Louisiana. Response as Intervener in Girod v. Hermes at 1, Doc. 18, filed February 14,
2024.

The third document states that the Magistrate Judges in Fair Winds and In House

Convenience denied Mr. Klein’s “motions to stay while the United States Supreme Court
considered my Petition for relief from the Louisiana suspension and while the Eastern District of
Louisiana completed their analysis” and asks for “the opportunity to address Your Honor
personally.” Respondent’s Request for an Opportunity to Appear in Person at 1, Doc. 19, filed
February 14, 2024.
It appears Mr. Klein seeks a hearing for the purpose of presenting an oral motion for
reinstatement to practice before this Court. Mr. Klein states his presentation “will be a hopefully
persuasive presentation by Respondent of the gravity of the suspension by the Louisiana Supreme
Court that is highly suspect.” Supplement at 3.
This Court suspended Mr. Klein based on his suspension by the Louisiana Supreme Court.
See Standard 2.9 Reciprocal Discipline, Annotated Standards for Imposing Lawyer Sanctions at
112, American Bar Association (2d ed. 2019) (“ABA Standards”) (“Reciprocal discipline is the
imposition of a disciplinary sanction on a lawyer who has been disciplined in another
jurisdiction”).
A lawyer who has been disciplined in one U.S. jurisdiction is subject to reciprocal
discipline in any other U.S. jurisdiction in which the lawyer is admitted. The
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purposes of reciprocal discipline are to prevent a lawyer admitted to practice in
more than one jurisdiction from avoiding the effect of discipline by simply
practicing in another jurisdiction, to prevent relitigation of misconduct that already
has been established in another jurisdiction, and to protect the public from lawyers
who commit such misconduct.
ABA Standards at 112.
If a lawyer’s misconduct is serious enough to warrant a suspension from practice
longer than six months, courts should not grant reinstatement until the lawyer
demonstrates rehabilitation, compliance with all applicable discipline or disability
orders, and fitness to practice law.
....
Rule 25(E) of the MRLDE [Model Rules for Lawyer Disciplinary Enforcement]
sets out the following criteria that lawyers suspended more than six months must
meet before being reinstated:
Full compliance with the terms and conditions of all prior disciplinary orders;
The lawyer has neither engaged in nor attempted to engage in the unauthorized
practice of law during the period of suspension;
Any physical or mental disability or infirmity existing at the time of suspension has
been removed; if alcohol or other drug abuse was a causative factor in the lawyer’s
misconduct, the lawyer has pursued appropriate treatment, has abstained from the
use of alcohol or other drugs for a stated period of time, generally not less than one
year and is likely to continue to abstain from alcohol or other drugs;
The lawyer recognizes the wrongfulness and seriousness of the misconduct
resulting in the suspension;
The lawyer has not engaged in any other professional misconduct since suspension;
Notwithstanding the conduct for which the lawyer was disciplined, the lawyer has
the requisite honesty and integrity to practice law; and
The lawyer has kept informed about recent developments in the law and is
competent to practice.
ABA Standards at 65.
When a lawyer has been suspended for more than six months, reinstatement may
be appropriate when the lawyer can show rehabilitation. Application for
reinstatement should not be permitted until the expiration of the ordered period of
suspension and generally not until at least six months after the effective date of
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suspension. A lawyer should not be reinstated unless he or she can show by clear
and convincing evidence criteria set forth in Rule 25(E) of the MRLDE.
ABA Standards at 122.
The Court denies Mr. Klein’s request for a hearing. The Louisiana Supreme Court
suspended Mr. Klein from the practice of law for one year and one day beginning May 18, 2023.
See In re: Henry L. Klein, 362 So.3d 392, 401 (La. May 18, 2023) (per curiam); ABA Standards
at 122 (“Application for reinstatement should not be permitted until the expiration of the ordered
period of suspension”). Mr. Klein has not filed a written motion seeking reinstatement that states
legal authority in support of reinstatement and shows by clear and convincing evidence that he has
satisfied the criteria set forth in Rule 25(E) of the Model Rules for Lawyer Disciplinary
Enforcement.

See D.N.M.LR-Civ. 7.1(a) (“A motion must be in writing and state with

particularity the grounds and the relief sought”); D.N.M.LR-Civ. 7.3(a, b) (“A motion . . . must
cite authority in support of the legal positions advanced;” “Parties must submit evidence, in the
form of declarations, affidavits, deposition excerpts, or other documents, in support of allegations
of fact”). The Court will not comb through the various documents attached to Mr. Klein’s filings
to determine whether reinstatement is appropriate. See Biogenics, Inc. v. Kazen, 6 Fed.Appx. 689,
692 (10th Cir. 2001) (“Despite the liberal construction afforded pro se litigants, the court will not
construct arguments or theories for a pro se litigant”). Finally, the Court will not allow Mr. Klein
to relitigate the merits of the State of Louisiana’s disciplinary procedure. See D.N.M.LR-Civ.
83.2(d)(2) (“It is presumed that discipline imposed by another court against a member of the bar
of this court is appropriate”); Standards at 113 (Rule 22 of the MRLDE “provides that a certified
copy of a final adjudication imposing discipline on a lawyer in another jurisdiction constitutes
conclusive evidence that the lawyer committed the misconduct”).
IT IS SO ORDERED.
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_________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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