Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 1 of 11 PageID# 763

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

__________________________________________
)
SVETLANA LOKHOVA, )
)
Plaintiff, )
) No: 1:20−cv−01603−LMB−WEF
v. )
)
STEFAN A. HALPER, )
)
Defendant. )
__________________________________________)

PLAINTIFF’S MOTION TO DISQUALIFY

TERRANCE G. REED AND ROBERT D. LUSKIN
AS DEFENDANT'S TRIAL COUNSEL

COMES NOW, the Plaintiff, by and through undersigned counsel, and moves

to disqualify Terrance G. Reed and Robert D. Luskin as Defendant's counsel under

Virginia Rule of Professional Conduct 3.7(a) because they both will be necessary

witnesses in this case. 1

BACKGROUND

Plaintiff Lokhova asserts claims against defendant Halper for defamation

and tortious interference with contract. The Fourth Circuit has summarized the

gist of these claims as follows:

The complaint’s core allegations stated that in March 2020, when

[defendant] Halper learned of [plaintiff Lokhova's] book, he directed

1Undersigned counsel inquired by email on Monday, August 22, 2022 as to whether

Messrs. Reed and Luskin would voluntarily agreed to step down as trial counsel in
this matter in light of their obvious positions as fact witnesses to Plaintiff’s claims,
and was advised by Mr. Reed by email of Tuesday, August 23, 2022 that he and Mr.
Luskin would not agree to withdraw as trial counsel at this time.
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 2 of 11 PageID# 764

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.

Lokhova v. Halper, 30 F.4th 349, 355 (4th Cir. 2022).

A. Mr. Reed’s Involvement In The Claims At Issue

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:

79. The defamatory statements at issue in this action are

contained in these two letters, dated March 13, 2020 and April 3, 2020,
which are incorporated by reference and attached hereto.
80. On March 13, 2020, Halper’s attorney, Terry Reed (“Reed”),
wrote a letter to S&S that falsely accused it of defaming Halper in the
marketing materials for the Book.
81. On behalf of Halper, Reed requested that S&S cease and
desist publishing the marketing materials and issue a public, written
retraction.
82. Further, as Halper’s agent, Reed defamed and disparaged
Plaintiff to S&S by falsely accusing Plaintiff of knowingly publishing
“false statements” about Halper.
* * *

2The two letters written by Mr. Reed are appended as Exhibit 1.

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.

B. Mr. Luskin’s Involvement In The Claims At Issue

Mr. Luskin also authored a communication that is at issue in this action. He

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 4 of 11 PageID# 766

to the previous defamation action that Ms. Lokhova filed against Halper in this

Court. Lokhova v. Halper, Civil Action No. 1:19-cv-632.

The Amended Complaint alleges that:

127. Halper utilizes agents and surrogates, including his

lawyers and his family members, to carry out his campaign of
intimidation through the use or threatened use of legal process.
128. Plaintiff is aware of at least two other instances in which
Halper has used these methods to try to intimidate smaller media
outlets into not publishing stories about him, regardless of their
accuracy, and to retaliate against them in order to discourage them
from doing so again.

One of the “two other instances” referenced in paragraph 128 is an email

written by Mr. Luskin. 3

In November 2019, Margot Cleveland, who is a senior legal correspondent for

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 5 of 11 PageID# 767

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

copy of this email exchange is attached as Exhibit 2).

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

2012) (statement that defendant doctor "made racial comments concerning

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

to be suspicious of Ms. Lokhova and to “participate[ ] on behalf of the FBI in

counter-intelligence operations” against her. See Exhibit 1. Mr. Halper certainly

could not therefore have considered it to be defamatory to have a story published

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 6 of 11 PageID# 768

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

“improper means” that Plaintiff alleges Defendant Halper used to tortiously

interfere with her book contract in Count II of the Amended Complaint.

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

Halper, are the persons in possession of that information. "Where an attorney is a

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

quotation marks and citations omitted).

ARGUMENT

Virginia Rule of Professional Conduct 3.7(a), often referred to as the witness-

advocate rule, states: “A lawyer shall not act as an advocate in an adversarial

proceeding in which the lawyer is likely to be a necessary witness.” Va. R. Prof.

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 7 of 11 PageID# 769

1992). "These interests become imperiled when an advocate testifies because a

lawyer’s role of arguing causes and a witness’s role of reciting facts are

fundamentally inconsistent." Premium Prods., 997 F. Supp. 2d at 436. "Jury

confusion is likely to result, and in its confusion, the jury is likely to accord the

witness-advocate either undue weight or undue discredit." Id. "Ultimately, a

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.

(quoting Andrews, 804 F. Supp. at 824).

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

and with a view of preventing the appearance of impropriety, it is to resolve all

doubts in favor of disqualification.’ ” Premium Prods., 997 F. Supp. 2d at 438

(quoting United States v. Clarkson, 567 F.2d 270, 273 n.3 (4th Cir. 1977)).

In this case, it is patent that Mr. Reed is a necessary witness because he is

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 8 of 11 PageID# 770

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.

In similar circumstances, courts have disqualified attorneys who have

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

the jury." Id. at 717.

Likewise, in Healthcrest, Inc. v. American Medical Intern., Inc., 605 F. Supp.

1507, 1511 (N.D. Ga. 1985), the court disqualified “the attorneys who drafted the

documents that triggered this litigation.”

8
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 9 of 11 PageID# 771

In Dorchester Financial Holdings Corp. v. Banco BRJ, S.A., 2014 WL

3579809 (S.D.N.Y. July 18, 2014), the court disqualified an attorney who had served

as plaintiff's counsel with respect to the transaction at issue in the litigation

because he would likely be called as a fact witness. The court noted that "the test is

whether [the attorney] is likely to be a witness on a significant issue of fact,

regardless of which party intends to call him as a witness." Id. at *6. "An attorney

who is likely to be a witness on a significant issue of fact cannot perform,

simultaneously, an advocate’s role at a proceeding because performing those two

roles witness and advocate creates a conflict." Id.

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

could not serve as trial counsel. 2020 WL 239598, at *18.

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

assisting in this case as non-trial counsel. "If an attorney is disqualified, he or she

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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 10 of 11 PageID# 772

239598, at *18 (E.D. Va. Jan 15, 2020).

WHEREFORE, it is respectfully submitted that this motion should be

granted and that Terrance G. Reed and Robert D. Luskin be disqualified from

serving as trial counsel for Defendant Halper in this matter.

Dated: August 23, 2022 Respectfully submitted,

__________/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
Case 1:20-cv-01603-LMB-WEF Document 73 Filed 08/23/22 Page 11 of 11 PageID# 773

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
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 1 of 9 PageID# 774

EXHIBIT 1
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 2 of 9 PageID# 775
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 3 of 9 PageID# 776
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 4 of 9 PageID# 777
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 5 of 9 PageID# 778
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 6 of 9 PageID# 779
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 7 of 9 PageID# 780
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 8 of 9 PageID# 781
Case 1:20-cv-01603-LMB-WEF Document 73-1 Filed 08/23/22 Page 9 of 9 PageID# 782
Case 1:20-cv-01603-LMB-WEF Document 73-2 Filed 08/23/22 Page 1 of 3 PageID# 783

EXHIBIT 2
Case 1:20-cv-01603-LMB-WEF Document 73-2 Filed 08/23/22 Page 2 of 3 PageID# 784

From: Luskin, Robert <[email protected]>

Date: Fri, Nov 22, 2019 at 2:53 PM
Subject: RE: Media Request
To: Margot Cleveland <[email protected]>, [email protected]
<[email protected]>, [email protected] <[email protected]>

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?

My deadline is Sunday morning at 10:00 ET.

Regards,
Margot Cleveland
Senior Contributor, The Federalist

******************************************************************************
************
Case 1:20-cv-01603-LMB-WEF Document 73-2 Filed 08/23/22 Page 3 of 3 PageID# 785

This message is sent by a law firm and may contain information that is privileged or confidential.
If you received
this transmission in error, please notify the sender by reply e-mail and delete the message and
any attachments.
If you reply to this message, Paul Hastings may collect personal information including your
name, business name
and other contact details, and IP address. For more information about Paul Hastings?
information collection, privacy
and security principles please click HERE. If you have any questions, please contact
[email protected].
Case 1:20-cv-01603-LMB-WEF Document 73-3 Filed 08/23/22 Page 1 of 1 PageID# 786

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

__________________________________________
)
)
SVETLANA LOKHOVA, )
)
Plaintiff, )
) No: 1:20−cv−01603−LMB−WEF
v. )
)
STEFAN A. HALPER, )
)
Defendant. )
)
__________________________________________)

PROPOSED ORDER

UPON CONSIDERATION OF the Plaintiff’s Motion to Disqualify Terrance

G. Reed and Robert D. Luskin as Defendant’s Trial Counsel it is this _____ day of

____________ 2022, hereby

ORDERED that the Plaintiff's motion is GRANTED, and it is further

ORDERED that attorneys Terrance G. Reed and Robert D. Luskin are

disqualified from appearing as trial counsel in this matter.

_________________________________
Hon. Leonie M. Brinkema
United States District Judge