Anyone can open an account at Pacer and download federal court documents for 10 cents per page. Anyone can walk into Room 314 at the Prince William County Courthouse in Manassas, Virginia, and print copies of court documents for 50 cents per page. I’ve done both. That sort of shoe leather reporting is how I’ve come by the court filings I’ve posted recently in the Walker v. Kimberlin, et al. federal and Virginia civil suits.
Here’s the latest. It’s a Motion to Order Plaintiff to Cease and Desist and for Sanctions Against Plaintiff’s Counsel filed by Brett Kimberlin in the Virginia case. I would normally wait for Aaron Walker’s lawyer to file his response and let that answer Mr. Kimberlin’s claims. However, since Mr. Kimberlin cites my writing on this blog, I will respond as a point of personal privilege. But first, here’s the filing.
My comments are keyed to Mr. Kimberlin’s number paragraphs. Since I’ll only respond to a few, most are skipped.
2. In this paragraph and in his introductory remarks at the beginning of the motion, Brett Kimberlin asserts that all of his emails with Mr. Walker’s lawyer have appeared in one way or another on the Internet and that that is somehow illegal. As evidence, he attaches Exhibit B which is a partial copy of this Hogewash! blog entry. Sure enough, there are copies of his email communication back and forth with Dan Backer on a matter related to the Virginia case. I can’t say that whether or not these are all the email traffic between them. These emails were included as an exhibit in a court filing and, as such, are a part of the public record. The. public. record. Publishing documents that are a part of the public record is not illegal. TDPK and his crew do it all the time.
3. The only posts I have made with respect to Mr. Kimberlin’s invoking his Fifth Amendment right to remain silent simply wonder why he would need to unless he has a reasonable apprehension of criminal liability.
15. By incorporating by reference my blog post as an example of the “improper and unethical” behavior he complains of, Brett Kimberlin essentially accuses me of participating in it. Here is how you will know that his claim is false. If he were to repeat it any place other than a court document, he would be opening himself up to a claim by me of defamation. See if he repeats it elsewhere.
One more thing … At the end of his motion, Mr. Kimberlin asks that Prince William County Circuit Court order that a federal trial be transferred to its jurisdiction. Sigh. IANAL, but it seems that Article VI, Clause 2 (the Supremacy Clause) and Amendment XIV, Section 1, Clause 2 (the Privileges and Immunities Clause) would keep that from happening even if the Circuit Court were disposed to try it.
Meanwhile, 5 October is almost here. We’ll see who gets sanctioned.
Tick, tick, tick, tick, …
UPDATE—Brett Kimberlin’s assertion that it is unethical for a lawyer to publicly discuss civil litigation in Virginia has no basis. Indeed, Rule 3.6 of the Virginia bar prohibits such extrajudicial discussions in a criminal matter that can be tried by a jury, but does not apply to a civil suit.
(a) A lawyer participating in or associated with the investigation or the prosecution or the defense of a criminal matter that may be tried by a jury shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication that the lawyer knows, or should know, will have a substantial likelihood of interfering with the fairness of the trial by a jury.
(b) A lawyer shall exercise reasonable care to prevent employees and associates from making an extrajudicial statement that the lawyer would be prohibited from making under this Rule.
However, I have never received any information that was not a matter of public record from any lawyer representing Aaron Walker in any matter discussed in this blog.
UPDATE 2—I did not deal with all of the claims in the motion above that seem disconnected from reality. I’ll leave that to opposing counsel. Given that a hearing is scheduled on the motion on 5 October, the same day Mr. Kmberlin’s responses to discovery are due, I’d guess that there will be a response filed soon.
Theme graphic added.