Professional Documents
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Lokhova - 73
Lokhova - 73
__________________________________________
)
SVETLANA LOKHOVA, )
)
Plaintiff, )
) No: 1:20−cv−01603−LMB−WEF
v. )
)
STEFAN A. HALPER, )
)
Defendant. )
__________________________________________)
COMES NOW, the Plaintiff, by and through undersigned counsel, and moves
Virginia Rule of Professional Conduct 3.7(a) because they both will be necessary
BACKGROUND
and tortious interference with contract. The Fourth Circuit has summarized the
his counsel, Terry Reed, to contact Post Hill Press and Simon &
Schuster solely for the purposes of “quash[ing] publication and
cancel[ling] the Book Contract.” It alleged that Reed then “contacted
[Simon & Schuster] and [Post Hill Press] and falsely accused [them] of
defaming Halper in the marketing materials.” The complaint stated
that “Halper requested that [the publishers] issue a public, written
retraction of the defamation.” Furthermore, it alleged that through the
letters, Halper also “defamed and disparaged” Lokhova to the
publishers, falsely accusing her of “knowingly publishing” statements
that were “false” and “inciteful” and that generated “hatred and
threats” against Halper and his family. The complaint also alleged that
“Halper escalated the threats and intimidation to [Simon & Schuster’s]
parent company, CBS Corporation.” The complaint concluded that
Halper’s accusations were untrue and that “[t]he sole purpose of
Halper’s actions was to interfere with [Lokhova’s] Book Contract and
induce [Post Hill Press] to terminate the Contract,” which it ultimately
did after facing irresistible pressure from Simon & Schuster.
The centerpiece of this case is the two letters that Mr. Reed wrote on Halper's
behalf to Post Hill Press (PHP) and Simon & Schuster (S&S). 2 The Amended
Complaint, (Dkt. #52), alleges that:
2
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 3 of 11 PageID# 765
94. The false and improper assertions in the letter are cloaked in
language that lawyers legitimately use to try to resolve defamation
claims out of court while preparing for litigation if necessary. Thus, the
letter demands that S&S place a "litigation hold" on documents related
to the book and to certain persons who had expressed an interest in the
false accusations about Plaintiff, including Member of Congress Devin
Nunes and certain writers.
95. On April 2, 2020, Mr. Reed wrote a comparable letter to
PHP, with a copy to S&S, making the same allegations and demanding
that PHP put in place the same "litigation hold."
* * *
97. Halper’s purpose in having Reed write the two letters was to
interfere with Plaintiff’s Book Contract and induce PHP to terminate
the Contract, thereby halting publication of the book and its
widespread marketing because it was going to cast him and his
conduct in an unfavorable light, not because it was defamatory.
* * *
99. At the time Halper (through Reed) misrepresented to S&S
and PHP that they had defamed him in the marketing materials, he
had no intention of engaging in any litigation.
100. Halper knew that truth was a defense to his defamation
allegations and that, by filing suit, he would expose himself to full
discovery into his conduct.
101. Rather than actually pursuing a genuine legal claim,
Halper’s goal was to intimidate and coerce S&S not to distribute the
book and PHP to terminate the Book Contract in order to prevent
unfavorable information from being published about him by reputable,
significant publishing houses.
and Mr. Reed have jointly represented Defendant Halper at least since August
2019, when both of them entered appearances on Mr. Halper’s behalf with respect
3
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to the previous defamation action that Ms. Lokhova filed against Halper in this
The Federalist, was preparing an article about Halper and Ms. Lokhova. On
November 22, 2019, she sent an email to Messrs. Luskin and Reed that stated:
I am preparing a story for Monday that reports that your client, Stefan
Halper, asked Cambridge Professor Bill Foster, to spy on Svetlana
Lokhova. I would like to offer your client an opportunity to explain
why had had [sic] asked Foster to do so. Also, what information, if
any, did Halper, relay to the IC which originated with Foster? Did
Halper pay Foster or arrange for Foster to obtain a contract to write a
CIA book in exchange for this week [sic]?
3The third instance of improper means via intimidation, lies, and baseless threats of
unfounded litigation referenced in paragraph 128 also involves Mr. Reed. That
incident involves another set of letters threatening defamation litigation that was
never actually filed and also the bringing of retaliatory criminal trespass charges
against a journalist who wrote about Halper.
4
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Several hours later, Mr. Luskin responded to Ms. Cleveland that: “The story
you are preparing to run is false and defamatory. Publish at your peril. Professor
Halper is prepared to hold you and your publication accountable if you proceed.” (A
However, the allegation in Ms. Cleveland’s email that Halper asked Professor
Foster to spy on Ms. Lokhova was not false. Nor, in any event, was it defamatory.
The word “spy” -- when used as a verb as it was here -- means "to watch secretly
usually for hostile purposes." 4 It does not carry the requisite “sting” to be
defamatory. See Kebaish v. Inova Health Care Servs., 85 Va. Cir. 92, 95 (Fairfax
Dr. Kebaish's accent and they ridiculed Dr. Kebaish behind his back" not
defamatory); Hutchins v. Institutional Commc'ns Co., 19 Va. Cir. 264, 265 (Fairfax
1990) (statement that plaintiff worker had been terminated "for cause" not
defamatory).
Moreover, the letters written by Mr. Reed on Defendant Halper’s behalf only
a few months later indicate that Halper considered it a “public service” to the nation
about him spying on Ms. Lokhova or asking others to do so on his behalf. Thus,
4
See “Spy,” Merriam-Webster, https://www.merriam-webster.com/dictionary/spy
(last visited Aug. 23, 2022).
5
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Mr. Luskin’s email rather is another example of Defendant Halper making baseless
threats that he will sue for “defamation” in order to try to kill the publication of a
story about him - regardless of its truth. This conduct is the gravamen of the
Discovery in this case may well uncover other instances in which Messrs.
Reed or Luskin has threatened unfounded litigation against persons whom Halper
does not wish to author books, stories, or articles about him. Plaintiff is entitled to
take discovery on that issue and Messrs. Reed and Luskin, in addition to Defendant
fact witness, … his or her deposition may be both necessary and appropriate."
Buyer's Direct, Inc. v. Belk, Inc., 2012 WL 3278928, at *2 (E.D.N.C. 2012) (internal
ARGUMENT
Conduct 3.7(a). The Rule “is mandatory and may not be waived.” Premium Prods.,
Inc. v. Pro Performance Sports, LLC, 997 F. Supp. 2d 433, 436 (E.D. Va. 2014).
This is a "prophylactic rule designed to protect the interests of the client, the
adverse party, and the institutional integrity of the legal system as a whole."
Estate of Andrews by Andrews v. United States, 804 F. Supp. 820, 823 (E.D. Va.
6
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lawyer’s role of arguing causes and a witness’s role of reciting facts are
confusion is likely to result, and in its confusion, the jury is likely to accord the
testifying advocate threatens the interests of the judicial system as a whole because
of the ‘public perception that a testifying advocate has distorted the truth on the
stand in order to advance his or her client’s cause and prevail in the litigation.” Id.
Pursuant to Rule 3.7, the Court must determine whether the attorney is a
necessary witness. “[A] court is ‘not to weigh the circumstances with hair-splitting
nicety but, in proper exercise of its supervisory power over the members of the bar
(quoting United States v. Clarkson, 567 F.2d 270, 273 n.3 (4th Cir. 1977)).
the author of the two key letters at issue in this litigation. He will need to be
deposed and if the case proceeds to trial, he will be called to testify as a necessary
witness. Given that Mr. Reed is a key witness, he cannot also serve as trial counsel
to defendant Halper.
Likewise, Mr. Luskin is also a necessary witness. Months before Mr. Reed
wrote the letters to Ms. Lokhova’s publisher and distributor, Mr. Luskin wrote an
7
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email to another author who was preparing to publish an article about Halper and
Ms. Lokhova threatening a defamation action against that author if she published.
Halper’s use of baseless threats of defamation actions are the specific “improper
means” that Ms. Lokhova alleges as tortious in Count II of her Amended Complaint.
Accordingly, Mr. Luskin also will need to be deposed and is likely to testify as a
witness at trial. This precludes him also from acting as trial counsel to Halper.
authored communications that may be relevant to the litigation even when they are
less central than the communications at issue here. For example, in Ayus v. Total
Renal Care, Inc., 48 F. Supp. 2d 714 (S.D. Tex. 1999), a doctor/limited partner
brought an action against the general partner for breach of contract and fraud,
alleging that the defendant had launched a campaign to find fault with his work
and create a pretext for firing him and avoiding its contractual obligation to him.
An attorney for the defendant had prepared several letters to the doctor outlining
the accusations against him, based on information provided by the defendant. The
court disqualified this attorney, ruling that he had "'involved himself in the facts of
this case' such that he may ultimately become a necessary witness which would
place him in the awkward position of acting as both an advocate and witness before
1507, 1511 (N.D. Ga. 1985), the court disqualified “the attorneys who drafted the
8
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3579809 (S.D.N.Y. July 18, 2014), the court disqualified an attorney who had served
because he would likely be called as a fact witness. The court noted that "the test is
regardless of which party intends to call him as a witness." Id. at *6. "An attorney
And, in Quality Plus Services, another member of this Court disqualified one
of plaintiff's counsel because, prior to the litigation, she had served as the primary
point of contact between plaintiff and the defendant insurance company on the
issues central to the coverage dispute. The court concluded that the attorney had
information relevant to a disputed issue that went to the heart of the dispute and so
These decisions and the facts in this case make it plain that Messrs. Reed
and Luskin simply cannot serve as trial counsel in this case. They are necessary
witnesses and Plaintiff is entitled to conduct discovery from them. Messrs. Reed
and Luskin can, of course, continue to represent Mr. Halper otherwise, including by
may assist in the preparation of the case or assist at trial in a non-advocacy role."
Quality Plus Services, Inc. v. National U. Fire Ins. Co. of Pittsburgh, 2020 WL
9
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granted and that Terrance G. Reed and Robert D. Luskin be disqualified from
__________/s/___________________________
Leslie McAdoo Gordon (VA Bar #41692)
McAdoo Gordon & Associates, P.C.
1629 K Street, N.W.
Suite 300
Washington, DC 20006
(202) 704-7388
[email protected]
10
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CERTIFICATE OF SERVICE
I hereby certify that, on August 23, 2022, I electronically filed the foregoing
Plaintiff’s Motion to Disqualify Terrance G. Reed and Robert D. Luskin as
Defendant's Trial Counsel, using the CM/ECF system, which will send a notification
of such filing (NEF) to all properly designated parties and counsel.
__________/s/__________________________
Leslie McAdoo Gordon
11
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EXHIBIT 1
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Case 1:20-cv-01603-LMB-WEF Document 73-2 Filed 08/23/22 Page 1 of 3 PageID# 783
EXHIBIT 2
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Ms. Cleveland
The story you are preparing to run is false and defamatory. Publish at your peril. Professor
Halper is prepared to hold you and your publication accountable if you proceed.
Robert Luskin
Robert Luskin
Paul Hastings LLP
875 15th ST NW
Washington, DC 20005
T: +1.202.551.1966
F: +1.202.551.0466
M: +1.202.257.8279
________________________________
From: Margot Cleveland [[email protected]]
Sent: Friday, November 22, 2019 11:38 AM
To: [email protected]; Luskin, Robert; [email protected]
Subject: [EXT] Media Request
Gentlemen,
I am preparing a story for Monday that reports that your client, Stefan Halper, asked Cambridge
Professor Bill Foster, to spy on Svetlana Lokhova. I would like to offer your client an
opportunity to explain why had had asked Foster to do so. Also, what information, if any, did
Halper, relay to the IC which originated with Foster? Did Halper pay Foster or arrange for
Foster to obtain a contract to write a CIA book in exchange for this week?
Regards,
Margot Cleveland
Senior Contributor, The Federalist
******************************************************************************
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Case 1:20-cv-01603-LMB-WEF Document 73-3 Filed 08/23/22 Page 1 of 1 PageID# 786
__________________________________________
)
)
SVETLANA LOKHOVA, )
)
Plaintiff, )
) No: 1:20−cv−01603−LMB−WEF
v. )
)
STEFAN A. HALPER, )
)
Defendant. )
)
__________________________________________)
PROPOSED ORDER
G. Reed and Robert D. Luskin as Defendant’s Trial Counsel it is this _____ day of
_________________________________
Hon. Leonie M. Brinkema
United States District Judge