Petition for Writ of Certiorari — Rodriquez v. Hassell (No. 08-574)
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. Seorane Oa US
\ a0 08-574 OCT 28 2008
No.
"OFFICE OF THE CLERK
3 IN THE
SUPREME COURT OF THE UNITED STATES
Isidoro Rodriguez, Esq.,
Petitioner,
Vv.
Hon. Leroy Rountree Hassell, Sr., et a/.,
Respondents.
On Petition For Writ of Certiorari
to the Supreme Court of the Commonwealth of
Virginia
PETITION FOR WRIT OF CERTIORARI
Isidoro Rodriguez, Esq.
Counsel for Petitioner
Member of the Bar of this Court since
September 11, 1992
7924Payton Forest Trail
Annandale, Virginia 22003-1560
Telephone: 571.423.5066
E-Mail: isidoror@EarthLink.net
i
The evidence is that the Supreme Court of
Virginia, the Virginia State Bar Disciplinary Board
(““VSBDB”), the Virginia Employment Commission
(“VEC”), and Attorney General Bob McDonnell, et al,
aided and abetted a criminal conspiracy to retaliate
against Isidoro Rodriguez, Esq. (“Rodriguez”) for
contacting Congress and the General Assembly to
investigate the violation of separation of power and for
litigating to enforce his Federal and Virginia statutory
rights. The linchpin of the conspiracy was for the
VSBDB to revoke Rodriguez’s license to practice law
for litigating to enforce said righs. But, the VSBDB has
no judicial authority under the laws of Virginia to
revoke an attorney’s license. Thus, the VSBDB acted
as a kangaroo court in issuing a void order. Due to
this evidence of a void order a suit was filed under
Virginia Tort Claims Act and Virginia’s Business
Conspiracy Act for illegally depriving Rodriguez of his
right to employment as an attorney and to federal
unemployment compensation. But, in violation of the
right of access to an impartial court and a jury trial the
Fairfax County Cir. Ct. dismissed the action based on
absolute Judicial and Executive Branch immunity for
criminal and tortious acts. The Supreme Court of
Virginia affirmed.
QUESTION PRESENTED FOR REVIEW
I. WHETHER THE SUPREME COURT OF
' Kangaroo court.”...2. A... tribunal characterized by
unauthorized ... procedures, .... 3. A sham legal proceeding. .
..” Bryan A. Garner, Black's Law Dictionary, at page 382 (8" ed.,
1999). Emphasis added.
ii
VIRGINIA VIOLATED RODRIGUEZ RIGHT TO DUE
PROCESS AND EQUAL PROTECTION OF THE LAW
BY AFFIRMING THAT THERE IS ABSOLUTE
JUDICIAL AND EXECUTIVE BRANCH IMMUNITY
FROM CRIMINAL AND TORT LIABILITY FOR
ISSUING AND ENFORCING A VOID ORDER IN
VIOLATION OF THE VOJDORDER DOCTRINE, THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE
U.S. CONSTITUTION, ARTICLE I § 1,5 AND § 7 OF
THE CONSTITUTION OF VIRGINIA, AND VA CODE
§ 54.1-§§ 3915 AND 3935?
Parties to the Proceedings:
The caption of the case does not contain the
name of all of the parties, who include: The Supreme
Court of Virginia, The Office of the Attorney General of
the Commonwealth of Virginia, the Virginia
Employment Commission Hon. Barbara Milano
Keenan, Hon. Lawrence L. Koontz, Jr., Hon. Cynthia
D. Kinser, Hon. Donald W. Lemons, Hon. G. Steven
Agee, Hon. Barbara Milano Keenan, Ms. Karen Ann
Gould, Esq., Mr. Seth Guggenheim, Esq., Ms. Noel D.
Sengel, Esq., Mr. James Leroy Banks, Jr., Esq., Mr.
William Carlyle Boyce Jr., Esq., Mr. William Ethan
Glover, Esq., Mr. Glenn M. Hodge, Esq., Mr. Stephen A.
Wannall, Mr. Davis J. Gogal, Esq., Mr. Daniel M.
Rathbun, Esq., Mr. Edward V. O’Connor, Jr, Esq., Mr.
John W, di Zerega, The Honorable Bob McDonnell,
Esq., The Hon. William E. Thro, Catherine Crooks Hill,
Esq., Ms. K, Kupke, John Does 1-20, and John Doe
Entities. :
Rodriguez not a corporation.
lil
Respondents are entities of the Federal,
Commonwealth Virginia, and District of Columbia
government, their employees, and private contractors
as instrumentalities of government, and their private
law firms acting as attorneys/lobbyists, and media
companies located in Washington, D.C. and Virginia.
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................
PARTIES TO THE PROCEEDING ............. ‘i
TABLE OF CONTENTS ................--0-- sli
TABLE OF AUTHORITIES ................... ,
CITATIONS TO OPINIONS BELOW ........... 1
STATEMENT OF JURISDICTION ............. 1
THE CONSTITUTION, FEDERAL STATUTES AND
VIRGINIA CODE INVOLVED ................. 1
STATEMENT OF THECASE ................. 2
REASONS FOR GRANTING
TH WRIT OF CERTIORARI ................. 9
I. THERE IS NO ABSOLUTE JUDICIAL AND
EXECUTIVE BRANCH IMMUNITY FROM
ACCOUNTABILITY FOR THE ISSUANCE
AND ENFORCEMENT OF THE VSBDB VO/D
ORDER ISSUED IN VIOLATION OF THE
2a. Mae Be Ek Re > vr eh oS
iv
FIFTH AND FOURTEENTH AMENDMENT AND
WITHOUT JUDICIAL AUTHORITY IN
FURTHERANCE OF A CRIMINAL BUSINESS
PIS 2 ss cove Ca bn bad OBES WER Cee EER 12
denial of access to an impartial court. .......... 12
b. The Supreme Court of Virginia has acted
outside of its judicial authority and jurisdiction, and
must be held accountable for malfeasance for usurping
the legislative authority granted only to the General
Assembly to create Cvurts-of-Record and to appoint
f SBP EER Raia: ibe poker eed BIKE ae Rees 15
b. The Virginia Malfeasors are liable for
violating the prohibition against taking action against
Rodriguez fer litigating to enforce his Federal and
Co ee 19
IT. THERE IS NO ABSOLUTE JUDICIAL AND
EXECUTIVE BRANCH IMMUNITY UNDER
THE VIRGINIA TOR’ CLAIMS AND
BUSINESS CONSPIRACY ACTS. ....... 20
Ill. THE DETERMINATION OF MALFEASANCE
IS AN ISSUE FOR A JULY TRIAL UNDER
BOTH THE VIRGINIA TORS CLAIM ACT AND
BUSINESS CONSPIRACY AcTS ........ 22
IV. THERE IS NO ABSOLUTE JUDICIAL AND
MINISTERIAL IMMUNITY FRC-MSUIT FORA
CRIMINAL CONSPIRACY AND
SEED Fick ONS SUED KR weseweees 23
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a. Violation of Oath of Office is Treason.... 25
b. The Virginia Malfeasors Have No Immunity
FT FOE 6 6 on CAR OSS EROS EON €O EE 28
c. No Immétnity From Liability for a Business
go on Wisi ta Saced o ta e 29
CONCLUSION ......... Piece creer. eaudaen 30
66.664 06.000 tbs Ree Add-a to Add-f
I cs a oy ca ncans hee A-1 to A-32
TABLE OF CITED AUTHORITIES
Cases:
Schware v. Board of Bar Examiners, 353 U.S. 232
SET Sica id us oul ole wb kee Wl ee acd ee ee 9
Supreme Court of New Hampshire v. Piper. 470 U.S.
SED ook cc vin vee wasetbeecian eee 5, 7,9
U.S. v. Murphy 768 F.2d 1518 (7 Cir. 1985) .... 10
Bank of Columbia v. Okely,4 Wheat. 235 [(1819) . 21
Barnes v. American Fert. Co., 144 Va. 692, 705, 130
I i eae 17
Boddie v. Connecticut, 401 U.S. 371 (1971) ...... 14
Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed
I ag Sin 26, 28
Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958) 26
Daniels v. Williams, 474 U.S. 327 (1986) ....... 15
Den Zeller v. Rankin, 101 S.Ct. 2020 (1981) ..... 28
District of Columbia Court of Appeals v. Feldman, 460
EIR RE a en SOUS Ee Cee 7
Donovan v. City of Dallas, 377 U.S. 408 (1964) .... 7
Ferry Co. v. Commonwealth, 196 Va. 428 (1954) . 17
Fisher’s Case, § Leigh(33 Va.)619 ............ 18
Fuentes v. She vin, 407 U.S. 67 (1972) ......... 15
Hurtado v. California, 110 U.S. 516 (1884) ...... 15
In re Sawyer, 124 U.S. 200 (1888) ............. 28
James Bagg’s Case (1616) 77 Eng. Rep. 1271 (K.B.)
Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974) .. 16
Lathrop v. Donahue: 367 U.S. 820 (1961) ........ 7
Marshal v. Jern Co, 446 U.S. 238 (1980) ....... 5, 7
Legal Club of Lynchburg v. A.H. Light, 137 Va. 249
LESS IAP Sar SRG nah ak a 18
vii
Lucas v. Biller, 204 Va. 309, 313, 130 S.E.2d 582, 585
(EEA ERS EN AT SCE ENE SE OE 17
Middlesex County Ethics Committee v. Garden State
Bar Ass‘n, 457 U.S. 423 (1982), ................ 7
Morrison v. Bestler, 239 Va. 166 (1990) ......... 16
Murray v. Giarratano,492 U.S. 1 (1989) ........ 13
Nguyen v. United States, 539 U.S. 69 (2003) .... 16
Olmstad v. United States, 277 U.S. 438 (1928). .. 30
Palko v. Connecticut, 302 U.S. 319 (1937) ........ 6
Pennoyer v. Neff 95 US 714 (1877) .....:...... 16
Pennsylvania v. Fjynley,481 U.S. 551, 95 L. Ed. 2d 539,
oO ia oS ee ec ct waeees 13
Peters v. Kiff, 407 U.S. 493 (1972) ............. 14
R. V. Gaskin, (1799) 1001 Eng. Rep. 1349 (K.B.)
Cee ee eb waa owe 24
Rankin v. Howard 633 F.2d 844 (1980) ......... 28
Stump v. Sparkman, 435 U.S. 349 (1978) ....... 25
Turner v. Houseman, 2008 WL 647526, 2008 U.S. App.
LEXIS 5127, slip op. At 3 (10 Cir. (Okla.) March 10,
2008)(No.07-6108: unpublished) ............... 30
Ce a
eg hie ook - ca
NS aS eee ye ee ee ae ee ae ee ee ae ee ee See ee ee
Vill
U.S. v. Will,.449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d
iii 6-4 wines aire eek keane wee 28
United States v. Lee, 106 U.S. 196 (1882) ....... 28
Walters v. National Assn. of Radiation Survivors, 473
U.S. 305,87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985)
shade RAMMED ATM OER WEE Cea RAO b eh ee eee 13
Wolff v. McDonnell, 418 U.S. 539,41 L. Ed. 2d 935,94 S.
he oo lsh ca couekockbed 13, 15
U.S. Constitution:
as yk 6 he tke eee + dee ee kee 19
Fourteenth Amendment .................. 13, 15
Virginia Constitution:
a oe ate ee wale 19
Article IV, § 9 of the Constitution of Virginia .... 27
Article VI § 1 of the Constitution of Virginia ..... 17
Article VI, § 7 of the Constitution of Virginia . 17, 27
VI § 5 of the Constitution of Virginia ........... 20
Federal Statute:
Judiciary Act of 1925 (43 Stat. 936) ..... SE A an
es 80. KK OWNS bd pee 6 s'0-40 eee 29, 31
ae wee een ae ik ve eeee ee wed 29, 31
SSE aE EN re 7
gs Pree rere errT Te ey 5, 7
ao Ce 5 ens kes ate daevese es 7
Racketeer Influence and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961 et seg. ............. 7
aes Gs k4 ck ss Vee bee sabe ease es
Virginia Statute:
I co ce sa ncacesceedecesses
i ds wa as wh ehceessavesacs
ks Gace cn eka de oe we
ieee acsecctsvecvceaw een
Va. Code § 18.2-500 ...... cass x wee hela Se
es SE ED ons ccc cece sccaseses
NE ES ee
Va. Code §8.01-195.3(3)
a oe i en a ee Le ee er
eg et ee
x
4 William Blackstone, Commentaries 140....... 19
Article 39 of the Magna Carta ................ 23
Block, Stump v Sparkman and the History of Judicial
Immunity, 4980 Duke L.J. 879 (1980) .......... 25
Prakash and Smith, How to Remove a Federal Judge,
SO ee ta ee Fe OE PD 6 vs cic cceen vs can 24
Robert Craig Waters,“Liability of Judicial Officers
under Section 1983” 79 Yale L. J. 326 (December 1969
ade hie Oe RDS Ca ed Vad Clo ae eae )25
When Has the Supreme Court of Appeals Original
Jurisdiction of Disbarment Proceedings? R.H.C.
Virginia Law Review, Vol 10, No. 3 (Jan. 1924), pp. 246-
AER nee eae www gronBne rs asi Vee wa 18
Goodman, Leonard S., The Historic Role of the Oath of
Admission, Temple Univ. 1967. ................ 7
Suffolk Bar Assn Dinner, Feb 5, 1885, Speeches (1913),
reprinted in Lerner, Max, The Mind and Faith of
Justice Holmes 29 (1954). .......... ccc cen eeee 7
The Fraternity: Lawyers and Judges in Collusion, by
John Fitzgerald Molloy. St. Paul, Minn.: Paragon House
ae he kale wis aio boo bse a Cae wee ea bekeoe 7,13
“How to Save the Courts” by Justice Sandra Day
O’Conner, Parade Magazine, February 24, 2008 .. 5,7
:
:
:
:
CITATIONS TO OPINIONS BELOW
The unpublished order of the Supreme Court of
Virginia based on absolute judicial and executive
branch immunity whose review is sought was issued on
July 31, 2008 and is reproduced at A-1.'
The unpublished order of the Fairfax County
Circuit Court issued on March 28, 2008, is reproduced
at A-2.
The unpublished void judgment of the Supreme
Court of Virginia issued on June 29, 2007, affirming
the published void decision of the VSBDB issued on
November 27, 2006, is reproduced at A-3 and A-4.
STATEMENT OF JURISDICTION
The unpublished order of the Virginia Supreme
Court was entered on July 31, 2008. The jurisdiction of
this Court is invoked pursuant-28 U.S.C. 1257(a), and
the Court’s supervisory authority under Article III to
the U.S. Constitution, See District of Columbia Court
of Appeals v. Feldman, 460'U.S. 462 (1983).
THE ATTACHED ADDENDUM CONTAINS THE
CONSTITUTION, FEDERAL STATUTES AND
VIRGINIA CODE INVOLVED
NIT TATE CONSTITUTI INVOLVED
'“A-” references are to pages in the attach Appendix.
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The Supremacy Clause, Article VI, clause 2 . Add-a’
Section 1 of the Fourteenth Amendment ..... Add-a
V VED
Articie I, § 11. Due Process of Law; Obligation of
Contracts; ...; Jury Trial in Civil Cases... .. Add-a
Article VI, § 1. Judicial power: jurisdiction ... Add-a
Article VI, § 5. Rules of practice and procedure Add-b
Article VI, § 7. Selection ... of judges ....... Add-b
THE VIRGINIA CODE INVOLVED )
Va. Code § 8.01-195.3. Commonwealth .. . liable for
damages in certaincases ................-. Add-b
Va. Code § 18.2°481. Treason defined; how proved and
a hgh lag kg og wel’ Add-c
Va. Code18.2-482. Misprision of treason ..... Add-d
Va. Code § 18.2-499. Combination to injure others in
their reputation, trade, business or profession: right of
LE ie i ee Add-d
Va. Code § 18.2-500. Same; civil relief; damages and
counsel fees: injunctions .................. Add-e
*“Add-” references are to pages in the attach Addendum.
2
Va. Code § 54.1-3910. Organization and government of
ee NE ia is Saideiaiesiciecetes Add-e
Va. Code § 54.1-3915. Restrictions as to rules and
regulations ..... atte teens tee e cece eens Add-e
Va. Code § 54.1-3935. Procedure for revocation of
re Oe me i ee tert te mee +
STATEMENT OF THE CASE
a. Nature of nd P low
On December 20, 2007, the instant action was
filed against Respondents (“Virginia Malfeasors”),* in
the Fairfax County Circuit Court (“Circuit Ct.”)
pursuant to the Virginia Tort Claims Act Va. Code §
8.01- 195.3(3), (4), and (5) (Add-b and c), and the
Virginia Business Conspiracy Act, Va. Code § 18.2-499
and 500 (Add-d and e).
Rodriguez demanded a trial by jury on all issues
and the evidence of malfeasance and acts outside of
jurisdiction and judicial pursuant to the Constitution of
Virginia and the above cited provisions of Va. Code,
based on the issuance and enforcement of the VSBDB
void orders to damage Rodrigucz’s reputation, business,
profession, right to employment, and to federal
unemployment compensation benefits in retaliation for
petitioning Congress and Virginia General Assembly,
as well as litigating to enforce his Federal and Va. Code
* Parties to the Proceeding are listed at page ii.
3
statutory parental rights and his property rights in his
perfected Virginia Attorney’s Lien.
On March 28, 2008, the Circuit Court surreally
summary dismissed the complaint based on holding of
absolute Judicial and Executive Branch immunity for
acts of malfeasance outside of jurisdiction and judicial
capacity-including criminal acts, and disregarded
Rodriguez’s right to a jury trial (A-2).
On July 31, 2008, the Supreme Court of Virginia
issued a voidorder affirming the summary order of the
Circuit Court (A-1).
b. Undisputed Facts in the Record.
The evidence confirms that from 2003 until 2007
an illegal enterprise was undertaken by the U. S.
Departments of Justice and the State headquartered in
Washington, D.C., and their independent contractor
the National Center for Missing & Exploited Children,
its employees, agents and lobbyist, and attorneys, as
well as Judge Richard Roberts of U. S. District Court
for the District of Columbia et al (“Federal
Malfeasors”), the Fairfax County J&D District Court,
the Circuit Court, the Virginia Court of Appeals, and
the Supreme Court of Virginia (“Va. Courts”), to
obstruct the parental rights of Rodriguez a U.S. citizen
by not complying with their ministerial and judicial
responsibilities to secure visitations under the Art 2] of
the Hague Convention on the Civil Aspects of
International Child Abduction, Oct 25, 1980, T.1.A.S.
No. 11670, 19 I.L.M 1501 (“the Treaty”), and the
Virginia’s Uniform Child Custody Jurisdiction and
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Enforcement Act, Va. Code 20-146.25, in violation of 18
U.S.C. § 1204, See Isidoro Rodriguez, Esq. and Isidoro
Rodriguez-Hazbun v. National Center for Missing and
Exploited Children et al., D.C. Dist. of Columbia No.
03-0120 (Roberts, J.)(“ Rodriguez I’).
Based on this evidence of malfeasance by the
violation of 18 U.S.C. §§ 4 and 1204, Rodriguez filed: (1)
a criminal complaint against the Federal Malfeasors
and Va. Courts on December 13, 2004; (2) a First
Amended Verified Complaint in Rodriguez Jon March
7, 2005, to include claims for obstructing his parental
rights in violation of 18 U.S.C. §§ 4 and 1204 pursuant
to a civil cause of action under the Racketeer Influence
and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§
1965(a) and (b); (3) a Virginia Tort Claim Notice
against the Va. Courts on June 8, 2007; and, (4)
petitions with both Congress and the General Assembly
for an investigation of the on going violations of the
Treaty and Va. UCCJEA.
In retaliation for the above petitioning the gov-
ernment and litigating to enforce his statutory rights,
the Federal Malfeasors and Va. Courts compounded
their criminal obstruction of Rodriguez's parental
rights by entering into a business conspiracy to damage
Rodriguez's reputation, business, profession, and right
to employment in violation VA Code § 18.2-499 and 500
(Add-c), and 18 U.S.C. §§ 241, 242, and 1513.
To accomplish this, Mr. Eric Holder, Ms. D. Jean
Veta, and Covington & Burling LLP, as well as Ms.
Susan Brinkerhoff, and Proskauer Rose LLP, as the
attorneys/lobbyists for the Federal Malfeasors filed in
5.
October 2003, a Virginia State Bar Complaint based on
Rodriguez litigating to enforce his statutory rights as a
parent and attorney under the Treaty and Va.
UCCJEA. Also, they did conspire to have Rodriguez’s
former client file a complaint for his litigating to
enforce his perfected Virginia Attorneys Lien under Va.
Code § 54.1-3932.
Subsequently, the VSBDB acted outside of its
limited administrative authority in violation of Article
VI § 1, § 5 and § 7, and Va. Code §§ 54.1-3910,
54.1-3915 and 54.1-3935 (Add-e and f), to issue a void
order on November 27, 2006, disbarring and revoking
Rodriguez's license to practice law for his litigating to
enforce his rights as a parent (A-28), as well as for
litigating to enforce his perfected statutory Virginia
Attorney's Lien (A-26).
The evidence confirms that at the same time
under the direction of the Federal Malfeasors the
VSBDB conspired with the District of Columbia Court
of Appeals Committee on Admissions (“Committee”) to
shelve for two years Rodriguez's waiver application
and deny him of his right to a hearing in May 2007, so
to deprive him of his right to employment as an
attorney in the District of Columbia based on the
VSBDB void order.
Based on this evidence of the past and on going
criminal malfeasance by the Committee, the Federal
and Virginia Malfeasors to issue and enforce the
VSBDB void order in the District of Columbia so to
damage Rodriguez's reputation, business, profession
and right to employment as an attorney, Rodriguez
6
filed an action) on May 27, 2007, under RICO for
violation of 18 U.S.C. § 4, 241, 242, 1001, 1204,
and1513, the Federal Tort. Claims Act, the Virginia
Tort Claims Act, and Virginia Business Conspiracy Act,
Isidoro Rodriguez, Esq. v. Editor in chief, Legal Times,
D.C. District Court No. 07-0975(“ Rodriguez IT’).
On June 18, 2007, in violation of his judicial duty
under 18 U.S.C. § 4 and § 3771, District Court Judge
Paul Feldman surreally issued a summary order
dismissing Rodriguez I]based on absolute judicial and
executive branch immunity-even for negligent and
criminal acts, and for lack of venue in the District of
Columbia-even for the federal causes of action.
In violation of the mandate of separation of
power under both the Constitution of Virginia and Va.
Code, on June 29, 2007, the Supreme Court of Virginia
issued a void oréer affirming-the void order of the
VSBDB (A-3), based on it delegating under Part 6, § IV,
{@ 13 (BX5) of its Rules jurisdiction and judicial
authority to VSBDB to act as a “court-of-record” with
the power to revoke Rodriguez's license.‘
Shortly thereafter, in Rodriguez IJ, an appeal
was filed on July 3, 2007. Defendant Chief Justice
John Roberts as Circuit Justice for the Fourth and
District of Columbia Circuits specially designated a
panel from the U.S. Ct. of Appeals for the 10" Circuit
pursuant to 28 U.S.C. § 291(a), to consider the appeal
*A Petition for Writ of Certiorari, /sidoro Rodriguez v.
Supreme Court of Virginia et al.,S. Ct. No. 07-419, was denied on
Nov. 2, 2007.
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D.C. Ct. of Appeals No. 07-5234 (“Special Panel”).
In November 2007, the Virginia. Employment
Commission denied Rodriguez of his right to federal
unemployment compensation benefits based on the
VSBDB void order.
On December 20, 2007, based on the orders of
the Special Panel the instant action was filed in the
Circuit Court. It dismissed the complaint in March
2008 based on absolute Judicial and Executive Branch
immunity, and denied a trial by jury (A-2).
On July 2, 2008, the Special Panel affirmed the
dismissal of Rodriguez ITbased on absolute judicial and
executive branch immunity and lack of venue.°*
On July 31, 2008, the Supreme Court of Virginia
in violation of Rodriguez’s rights under Va. Code § 8.01-
195.3(3), (4), and (6), Va. Code §§ 18.2-481, 18.2-482,
18.2-499, and 18.2-500, and right to a jury trial on the
issue of malfeasance, affirmed the order of Circuit
Court based on absolute Judicial and Executive Branch
immunity from tort and criminal liability for acts
outside of capacity and jurisdiction, and the denial of
jury trial (A-1).
*Because of the Special Panel’s lack of impartiality and apparent
aiding and abetting, pending before the Court are a Petition for
Writ of Mandamus to compel the protecting of Rodriguez as a
victim of on going federal crimes, /n re /sidoro Rodriguez, No. 08-
339, and a Petition for a Writ of Certiorari, /sidoro Rodriguez v.
kd. Chief Legal Times, et al., No . 08-411.
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REASONS FOR GRANTING
THE WRIT UF CERTIORARI
There are four compelling reasons for granting
the petition:
First, Va. Code § 8.01-195.3(3), (4), amai (6), Va.
Code §§ 18.2-481, 18.2-482, 18.2-499, and i8.2-500,
provide for tort and criminal liability and
accountability for malfeasance by issuing and enforcing
of a void order outside of jurisdiction and judicial
capacity in furtherance of a criminal conspiracy.
Second, to maintain an independent bar in the
service of the public an attorney is an officer for life
whose office cannot be taken from him, except for cause
established by due process of law. Goodman, Leonard
S., The Historic Role of the Oath of Admission, Temple
Univ. 1967. In Schware v. Board of Bar Examiners,
353 U.S. 232, 239 (1957), this Court stated that, “[a]
State cannot exclude a person from the practice of law
...1na manner or for reasons that contravene the Due
‘Process or Equal Protection Clause of the Fourteenth
Amendment.” Moreover, in the “Privileges and
Immunities” context, the practice of law has been
recognized as a “fundamental right,” Supreme Court of
New Hampshire v. Piper, 470 U.S. 274 (1985). Thus,
the Virginia Malfeasors cannot be immune from suit for
the issuance and enforcement of a void order.®
°Mr. Justice Ifolmes once remarked that the world has its
fling at lawyer sometimes, but its very denial is an admission that
of all secular professions this has the highest standards. Suffolk
Bar Assn Dinner, Feb 5, 1885, Speeches (1913), reprinted in
9
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> ee ee, ee oe oat ee ee ee ee ee Te FOR eS eee ey eer he La rg
Third, Middlesex County Ethics Committee v.
Garden State Bar Ass'n, 457 U.S. 423 (1982), requires
that a state proceedings afford an adequate opportunity
to raise the federal statutory and constitutional claims
based on malfeasance by the issuance and enforcement
of a void order. If review is not granted by this Court
based on the surreal holding of absolute judicial and
executive branch immunity for tort and criminal
liability then it again will have approved a judicial
paradigm where significant constitutional claims
become rights without either a competent impartial
state or federal forum to pursue a remedy for their
breach.
Fourth, the extensive record of an unlawful
conspiracy in violation of federal criminal] law by the
Virginia Malfeasors is in itself a deprivation of the
right to due process so to call for an exercise of this
Court’s supervisory power. Neither a Federal nor State
courts can aid and abet any case which clearly violates
the Constitution or civil/criminal laws of the United
States. U.S. v. Murphy 768 F.2d 1518 (7" Cir. 1985)(31
judges were removed from the bench after a Federal
Court ordered an investigation, confirming aiding and
abetting from the inferior to the Federal Courts of a
criminal enterprise). Stated another way, pursuant to
18 U.S.C. §§ 241, 242, and 1315, the Supreme Court of
Virginia, its agent the VSBDB, and the Virginia
Employment Commission et a/. are prohibited from
conspiring to punish Rodriguez for repairing to federal
courts to enforce his Federal statutory rights as a
Lerner, Max, The Mind and Faith of Justice Holmes 29 (1954).
10
parent and attorney:
Thai right was granted by Congress and cannot
be taken away by the State. The [State] courts
were without power to take away this federal
right by contempt proceedings or otherwise.
(Emphasis added). Donovan v. City of Dallas,
377 U.S. 408, 413 (1964).
Thus, against the above federal Constitution's
mandated due process guarantees this Court must stop
the unauthorized attorney disciplinary system
employed by Supreme Court of Virginia which has
permitted the issuance and enforcement of the void
order of the VSBDB that have violated Rodriguez’s
“fundamental right” to practice law, his right to be
employed as an attorney, and his right to receive
federal unemployment compensation benefits for has
past work as an attorney, because he has petition
Congress and litigated to enforce his federal statutory
rights. Otherwise the Court continues to permit the
egregious trespassing upon those rights.
In closing,«the use of the void order of the
VSBDB by the Federal and Virginia Malfeasors as the
linchpin to punish Rodriguez for being an independent
federal civil rights litigation attorney brings into focus
the abuse of power by the Judicial Branch in collusion
with the Executive Branch, and the prophetic dissent
of Associate Justice Douglas in Lathrop v. Donahue:
367 U.S. 820 at 883-885 (1961).
By complicating the law, lawyers have achieved
the ultimate job security. Gone are the days
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when American courts functioned to serve justice
simply and swiftly. . . . Surely it's time to
question what has happened to our justice
system and to wonder if it is possible to return to
a system that truly does protect us from wrongs.
The Fraternity: Lawyers and Judges in Collusion, by
John Fitzgerald Molloy. St. Paul, Minn.: Paragon
House, see “How to Save the Courts” by Justice Sandra
Day O’Conner, Parade Magazine, February 24, 2008.
Thus, this Court must grant Certiorari.
I. THERE IS NO ABSOLUTE JUDICIAL AND
EXECUTIVE BRANCH IMMUNITY FOR
ISSUING AND ENFORCING THE VSBDB
VOID ORDER IN VIOLATION OF THE FIFTH
AND FOURTEENTH AMENDMENT AND
WITHOUT JUDICIAL AUTHORITY IN
FURTHERANCE OF A CRIMINAL BUSINESS
CONSPIRACY.
a. There is no absolute judicial immunity for denial
of access to an impartial court.
“The Due Process Clause entitles a person to an
impartial and disinterested tribunal in both civil and
criminal cases.” Marsha/ v. Jern Co, 446 U.S. 238,242
(1980).’ However, the evidence confirms that during
"In Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937), this Court
said that due process rights includes those fundamental liberties
that are “implicit in the concept of ordered liberty,” such that
“neither liberty nor justice would exist if Ithey] were sacrificed.”
12
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the past two years the Federal Judicial Branch and
Virginia Courts have refused to comply with
Constitutional mandates, statutory enactment, and
stare decisis “stonewall” and avoid declaring the
Supreme Court of Virginia acted outside of its
jurisdiction and jiiicial capacity by delegating judicial
authority to the VSBDB in violation of separation of
power by usurping of legislative power granted only to
the General Assembly.®
The evidence of the past 2 years confirms
violation of the right to “access impartial court”
recognized by this Court as a fundamental right
guaranteed by the Fifth Amendment and _ the
Fourteenth Amendment Equal Protection Clause and
Due Process Clause of the U.S. Constitution, Murray v.
Giarratano,492 U.S. 1, 11, 106 L. Ed. 2d 1, 109 S. Ct.
2765, n. 6 (1989) (plurality opiuion); Walters v.
National Assn. of Radiation Survivors, 473 U.S. 305,
335,87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985);
Pennsylvania Vv. Fynley,481 U.S. 551, 557, 95 L. Ed. 2d
539, 107 S. Ct. 1990 (1987), Wolff v. McDonnell, 418
U.S. 539, 576,41 L. Ed. 2d 935,94 S. Ct. 2963 (1974);
ox
‘This current pattern and practice of the judicial branch
disregarding the mandate of separation of power was commented
on in a book review of The Fraternity, /d., by Mr. Dennis
DeConcini, U.S. Senator (Ret), when he stated that, ”...it is very
clear...that the Courts in our judicial system have, in fact, become
the lawmakers, when it is very clear...that our Constitution
delegated that responsibility to the Congress of the United States
and the State Legislatures....the legal profession has truly changed
from being one of the premier professions in our society to a
business where the number one objective or bottom line is
financial profit...”
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Boddie v. Connecticut, 401 U.S. 371, 380-381 (1971).
Thus, not only is the impermissible specter of an
“appearance of bias” raised, but actual bias, causing the
lack of impartiality to be reasonably questioned by the
violation of the Latin maxims of nemo judex in parte
sua (“no one can judge himself’), and nemo est supre
Jeges (“no one is above the law”). This bias based on
judicial cronyism has denied Rodriguez of access to an
impartial court and right to due process.
First, this Court has recognized that “[E]ven if
there is no showing of actual bias in the tribunal, this
Court has held that due process is denied by
circumstances that create the likelihood or the
appearance of bias. This rule, too, was well established
long before the right to jury trial was made applicable
in state trials, and does not depend on it... .“. Peters
v. Kiff 407 U.S. 493, 502 (1972).
Second, since the time of this Court’s early
explanations of due process, it understood the core of
the concept to be protection against arbitrary action:
“The principal and true meaning of the phrase
has never been more tersely or accurately stated
than by Mr. Justice Johnson, in Bank of
Columbia v. Okely, 4 Wheat. 235-244 [(1819)):
‘As to the words from Magna Charta, .. ., after
volumes spoken and written with a view to their
exposition, the good sense of mankind has at last
settled down to this: that they were intended to
secure the individual from the arbitrary
exercise of the powers of government, unrest-
14
rained by the established principles of private
right and distributive justice.” Hurtado v.
California, 110 U.S. 516, 527 (1884). (Emphasis
added).
The Court has repeatedly emphasized that “{t)he
touchstone of due process is protection of the individual
against arbitrary action of government,” Wolff v.
McDonnell, 418 U.S. 539, 558 (1974), whether the fault
lies in a denial as here of fundamental procedural
fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82
(1972) (the procedural due process guarantee protects
against “arbitrary takings”), or in the exercise of power
without any reasonable justification in the service of a
legitimate governmental objective, “Historically, thle]
guarantee of due process has been applied to deliberate
decisions of government officials to deprive a person of
life, liberty, or property.” Daniels v. Williams, 474 U.S.
327, 331 (1986) (citations omitted)(the substantive due
process guarantee protects against government power
arbitrarily and oppressively exercised).
As such, both the Fifth and Fourteenth
Amendment acts as a limitation upon the exercise of
judicial power-to wit, the Supreme Court of Virginia’s
declaring absolute judicial and executive branch
immunity for acts outside of their jurisdiction and
judicial capacity.
b. The Supreme Court of Virginia has acted
outside of its judicial authority and jurisdiction, and
must be held accountable for malfeasance for usurping
the legislative authority granted only to the General
Assembly to create Courts-of-Record and to appoint
15
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Judges.
This Court has held that an invalid and void
order can be attacked in any proceeding where they
come into issue. Pennoyer v. Neff 95 US 714 (1877);
and, Jordon v. o- 500 F. 2d 701, 710 (6th Cir.
without legal effect”) Guphases added). |
In enunciating the right to challenge a void
judgment this Court in Pennoyer held that a void
judgment can be treated as contrary to the first
principles of justice, and as an absolute nullity, because
it was rendered without any jurisdiction and is not
entitled to any respect, stating that,
To give such proceedings any validity, there
must be a tribunal competent by its
constitution--that is, by the law of its creation--
to pass upon the subject-matter of the suit.
(Emphasis added). Jd. at 733.
Consistent with this the Court recently held in
Nguyen v. United States, 539 U.S. 69 (2003), that any
decision of an improperly constituted judicial body
must be vacated.
Similarly, the Supreme Court of Virginia
explainedin Morrison v. Bestler, 239 Va. 166, 167-170,
387 S.E.2d 753 (1990),
The term jurisdiction embraces .. . subject
matter jurisdiction, which is the authority
granted by the constitution or statute to
16
adjudicate a class of cases or controversies. . . .which
cannot be waived or conferred on the court by
agreement of the parties. Lucas v. Biller, 204 Va. 309,
313, 130 S.E.2d 582, 585 (1963). A defect in subject
matter jurisdiction cannot be cured by reissuance of
process, passage.of time, or pleading amendment.
While a court always has jurisdiction to determine
whether it has subject matter jurisdiction, a judgment
on the merits made without - subject matter
jurisdiction is null and void. Barnes v. American Fert.
Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925).
Likewise, any subsequent proceeding based on such a
defective judgment is vord or a nullity. Ferry Co. v.
Commonwealth, 196 Va. 428, 432, 83 S.E.2d 782, 784
(1954). (Emphasis added)..
Based on the above, this Court must find that
the Supreme Court of Virginia’s declaration of absolute
judicial immunity is actionable based on the Void
Order Doctrine.
First, because Article VI § 1 and § 7 of the
Constitution of Virginia (Add-a and b), only gave the
General Assembly has the authority to establish courts
of records with ~ judicial authority, the Virginia
Malfeasors are liable under the Virginia Tort Claim Act
for permitting the VSBDB to act outside of limited
administrative authority by illegally revoking
Rodriguez's license based on Part 6, § IV, § 13 (B)(5) of
the Rules of the Supreme Court of Virginia.
Second, the Virginia Malfeasors’ are liable to
acts outside of their jurisdiction and judicial/ministerial
capacity because Article VI, §5 of the Constitution of
17
Virginia (Add-b), prohibits the Supreme Court from
promulgating rules in in conflict with the general law
established by the General Assembly.
Regarding the power to revoke an attorney’s
license, the General Assembly enacted -Code § 54.1-
3935 (Add-e), to give this power only to courts-of-
record.® In addition, under Code § 54.1-3910 (Add-e),
the General Assembly specifically restricted the
VSBDB to be an administrative arm of the Supreme
Court of Virginia. Finally, under Code § 54.1-3915
(Add-e) the General Assembly prohibited the Supreme
Court of Virginia from promulgating rules or
regulations inconstant with «a attorney’s statutory
rights.
* As explained by the Supreme Court of Appeals of Virginia in the
controlling case of Legal Club of Lynchburg v. A.H. Light, 137 Va.
249, 119 S.E. 55 (1923),
Independent of statutory authority, all courts of record in
Virginia have inherent power in a proper case to suspend
-or annul the hcense of an attorney practicing in the
particular court which pronounces the sentence of
disbarment. The power to go further and make
suspension or revocation of license effective in all other
court of the Commonwealth must be conferred by statute.
Fisher's Case, 6 Leigh (33 Va.) 619. (Emphases added).
Thus, the power of the courts to revoke an attorncy’s
license outside of that particular court is controlled by the General
Assembly by it passing a statute, see When Has the Supreme
urt of Appeals Original Jurisdiction of Disbar t edings?
R.H.C. Virginia Law Review, Vol. 10, No. 3 (Jan. 1924), pp. 246-
248.
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Thus, based on the void order Doctrine the
Supreme Court of Virginia has no authority to either
delegate judicial authority to the VSBDB or create a
disciplinary system outside of that established by the
General Assembly under Va. Code § 54.1-3935, and
cannot be permitted to declare itself absolutely immune
from liability of tortious and criminal acts outside of is
jurisdiction and judicial capacity.
c. The Virginia Malfeasors are liable for
violating the prohibition against taking action against
Rodriguez for litigating to enforce his Federal and
Virginia statutory rights.
First, because Rodriguez has been a target of a
criminal enterprise in retaliation for litigating to
enforce his Federal statutory rights as a parent the
Virginia Malfeasors are liable under 18 U.S.C. §§ 241,”°
242,"' and 1513."
Second, under Va. Code §§ 18.2-481 and 482
18 U.S.C. § 241, makes it a crime to “conspire to injure .
.. any person in any State . .. in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or laws
of the United States, or because of his having so exercised the
same;...”
18 U.S.C. § 242, makes is a crime to use any regulation
to deprive, “any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States, .. ..”
'218 U.S.C. § 1513, makes it a crime to retaliate against a
person, including interference with the lawful employment or
livelihood of any person, for providing to a law enforcement officer
any truthful information relating to the commission or possible
commission of any Federal offense, . . . “
19
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(Add-c and d), the Virginia Malfeasors are criminal
liable for “[rlesisting the execution of the laws under
color of authority.” Here as explained, Article VI §§ 1,
5, and 7 of the Constitution of Virginia and Va. Code §§
54.1-3910, 3915, and 3935 have been intentionally
violated by the Supreme Court of Virginia by
promulgating court rules which created an illegal
attorney disciplinary system and enforcing the VSBDB
void order which conflict with Rodriguez’s statutory
rights
Thus, the surreal holding of absolute judicial and
ministerial immunity from accountability for
malfeasance must be rejected by the Court.
II. THERE IS NO ABSOLUTE JUDICIAL AND :
EXECUTIVE BRANCH IMMUNITY UNDER
THE VIRGINIA TORT CLAIMS AND
BUSINESS CONSPIRACY ACTS.
When a judge knows that he lacks jurisdiction,
or acts in the face of clearly valid statutes expressly
depriving him of jurisdiction, judicial immunity is lost.
Rankin v. Howard, (1980) 633 F.2d 844, cert den. Zeller
v. Rankin, 101 S.Ct. 2020, 451 U.S. 939, 68 L.Ed 2d
326."*
As discussed the Virginia Supreme Court has
'? But, there is a general rule that a ministerial officer who acts
wrongfully, although in good faith, is nevertheless liable in a civil
action and cannot claim the immunity of the sovereign. Cooper v.
O'Conner, 99 F.2d 133 (1981).
20
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promulgated rules to delegate to the VSBDB “judicial
authority.” This was an act completely in the absence
of all jurisdiction and cannot be a judicial act. It was
no more than the act of private citizens, pretending to
have legislative power which does not exist at all. In
such a circumstance to grant absolute judicial
immunity is contrary to the public policy expectation
that there shall be a Rule of Law.'*
As explained in Marbury v. Madison, 1 Cranch
137 (1803).
"... the particular phraseology of the constitution
4 of the United States confirms and strengthens
‘ the principle, supposed to be essential to all
written constitutions, that a law repugnant to
the constitution is void, and that courts, as well
'4A judge must be acting within his jurisdiction as to
subject matter and person, to be entitled to immunity from civil
: action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689
(1938). :
"In The History of Sovereign Immunity, Associate Justice
Antonin Scalia, reveals that the "“fountainhead of American
constitutional law was precisely a suit against a federal official.”
Justice Scalia then goes on to explain the anomaly in the ruling of
Chief Justice Marshall in Marbury v. Madison when he advises,
"The explanation of this anomaly is quite simple: at the time of
Marbury v. Madison there was no doctrine of domestic sovereign
immunity, as there never had been in English law. As Marshall
notes in passing in the portion of his opinion establishing the
proposition that there is no right without a remedy: "In Great
Britain, the king himself is sued in the respectful form of a
petition, and he never fails to comply with the judgment of the
court.”
21
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EP aa ee ee ee ee hel ee oe > at De
as other departments, are bound by that
instrument."
This Court has held that "[nJo judicial process,
whatever form it may assume; can have any lawful
authority outside of the limits of the jurisdiction of the
court or judge by whom it is issued; and an attempt to
enforce it beyond these boundaries is nothing less than
lawless violence." Ableman v. Booth, 21 Howard 506
(1859). |
Consistent with this Va. Code § 8.01-195.3(3),
only provides for immunity for judges or officers for acts
within their judicial or ministerial capacity. Thus,
based on the issuance and enforcement of the VSBDB
void orders and the Virginia Malfeasors conspiracy to
enforce it so to deprive Rodriguez of employment, he
has a cause of action under the Virginia Tort Claims
Act, Va. Code § 8.01-195.3(3), (4) and (5) (Add-c).”®
Ill. THE DETERMINATION OF MALFEASANCE
IS AN ISSUE FOR A JURY TRIAL UNDER
BOTH THE VIRGINIA TORT CLAIM ACT AND
BUSINESS CONSPIRACY ACTS
‘“ The 11th Amendment immunity does not prevent an action in
federal court against a state official for u/tra vires actions beyond
the scope of his statutory authority, or pursuant to authority
deemed to be unconstitutional., i.e. the Supreme Court of Virginia
usurping the authority of the General Assembly to crate an
unauthorized attorney disciplinary system, Pennhurst State Sch.
V. Halderman, 465 U.S. 89 (1984)supra, 465 U.S. at 101-102, n.
11; Scham v. District Courts, 967 F. Supp 230, 232-233 (S.D.Tex.
1997).
22
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Ae ad ek SE i he Sim ar ee ae
In 1789, Thomas Jefferson wrote in a letter to
Thomas Paine: “I consider trial by jury as the only
anchor ever yetimagined by men, by which the
government can be held to the principles of its
constitution.”
Jefferson saw trial by jury as the greatest power
that the people have, and the only way the people had
to personally and directly prevent government
employees from flagrantly ignoring constitutional
restraints and oppressing the people with excessive and
often ridiculous laws and regulations i.e. like the
Supreme Court of Virginia usurping the authority and
mandate of the General Assembly by creating through
its Rules an illegal attorney disciplinary system.
It is for this reason that Virginia Constitution in
Article I, § 11 guarantees the right to a trial by jury.
Furthermore, both the Virginia Tort Claim Act and the
Virginia Business Conspiracy Act mandate trial by
jury.
Furthermore, the Seventh Amendment to the
U.S. Constitution, guarantees the right of jury trial in
civil matters
However, declaring absolute judicial and
ministerial immunity the Supreme Court of Virginia
deprived Rodriguez of his right due process and equal
protection of the laws.
IV. THERE IS NOIMMUNITY FROM SUIT FORA
CRIMINAL CONSPIRACY TO ISSUE AND
ENFORCE VO/JDORDERS.
23
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In The Case of the Marshalsea, 77 Eng. Rep.
1027 (K.B. 1613), Sir Edward Coke found that Article
39 of the Magna Carta restricted the power of judges to
act outside of their jurisdiction such proceedings would
be void, and actionable,
[Wlhen a Court has (a) jurisdiction of the cause,
and proceeds inverso ordine or erroneously,
there the party who sues, or the officer or
minister of the Court who executes the precept
or process of the Court, no action lies against
them. But (b) when the Court has not
jurisdiction of the cause, there the whole
proceeding is [before a person who is not a
judge], and actions will lie against them without
any regard of the precept or process... /d. 77
Eng. Rep. at 1038-41.
Thus, historically there is no absolute judicial
and ministerial immunity for acts outside of
jurisdiction, and an action will lie for the conspiracy to
issue and enforce a void order as part of an illegal
enterprise. In England and the colonies, it was in
ordinary courts which determined whether government
officers, including judges, with good behavior tenure
were to be held accountable in either civil or criminal
trials for misbehavior. Prakash and Smith, How to
Remove a Federal Judge, 116 Yale L. J. 72 at 74 (2006).
Blackstone discussed various English statutes
that provided for the making accountable and removal
of judges for misbehavior in proceeding. 4 William
Blackstone, Commentaries 140 at 141. These were not
statutory exception to grants of good-behavior tenure,
24
but consistent with the concept that a judge could be
tried in court. See, e.g. R. V. Gaskin, (1799) 1001 Eng.
Rep. 1349 (K.B.) (reinstating a parish-clerk upon his
demand that his employer show cause for firing him);
James Bagg’s Case (1616) 77 Eng. Rep. 1271, 1278-81
(K.B.)(reinstating a burgess for lack of cause to remove
him).
Virginia enacted the English rule in Va. Code
§8.01-195.3(3) at Add-g, to hold that a judge or
government attorney had no immunity from suit for
acts outside of his judicial capacity or jurisdiction. See
Robert Craig Waters,“Liability of Judicial Officers
under Section 1983” 79 Yale L. J.(December 1969), pp.
326-27 and nn. 29-30). In Stump v. Sparkman, 435
U.S. 349 at 360 (1978), the Supreme Court confirmed
that a State judge would be immune from suit only if
he did not act outside of his judicial capacity and/or was
not performing any act expressly prohibited by statute.
See Block, Stump v Sparkman and the History of
Judicial Immunity, 4980 Duke L.J. 879 (1980).
OO ee Pm ee ee oe eee, Oe 7
a. Violation of Oath of Office ts Treason.
History reports that Napoleon at his coronation
took the imperial crown out of the hands of the Pope
and crowned himself King. However, Justices of the
Supreme Court of Virginia and the or government
attorneys do not have that prerogative.
This is because before a Virginia attorney's name
is entered upon the roll he/she must take an oath to
“support the constitution of the United States and the
constitution of the state of , and that I will
25
faithfully discharge the duties of the office of attorney
and counselor at law to the best of my ability.”
Also all judges must take a second oath of office
before entering upon the duties of their office to
“solemnly swear (or affirm, as the case may be) that I
will support the constitution of the United States, and
the constitution of the State of and that I will
faithfully discharge the duties of judge of court,
according to the best of my ability.”
Further, if the judge or attorney had enlisted in
the U.S. military, as then he/she has subscribed to a
lifetime oath, under Title 10 U.S.C. Section 502, to in
pertinent part, as follows:
my , do solemnly swear (or affirm) that
I will support and defend the Constitution of the
United States against all enemies, foreign or
domestic; that I will bear true faith and
allegiance to the same: ...".
The Supreme Court of the United States has
stated that: "No state legislator or executive or judicial
officer can war against the Constitution without
violating his undertaking to support it.". Cooper v.
Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958).
‘The language of Chief Justice -Marshall in
Cohens v. Virginia, 6 Wheat, 264, 404 (1816), is most
apposite, when he stated that the courts:
... have no more right to decline the exercise of
jurisdiction which is given, than to usurp that
26
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which is not given. The one or the other would
be treasor to the Constitution.’ (Emphasis
added)
Thus, based on taking at least two, if not three,
oaths of office to support the Constitution of the United
States, any judge or attorney who does not comply with
his oath to the Constitution of the United States wars
against it and engages an act or acts of treason,
Here the evidence confirms that the Virginia
Malfeasors violated their oath under the Constitution
in furtherance of a criminal enterprise. Here we have
the enforcing the void order to punish Rodriguez for
acting pursuant to his federal rights under Treaty-
which under the Supremacy Clause is part of the
Constitution (Add-a).
When a judge knows that he lacks jurisdiction,
or acts in the face of clearly valid Constitutional
provisions or valid statutes expressly depriving him of
'Va. Code§ 18.2-481(5)(Add-f), makes it a crime for a court
to do an act of treason, which is defined as, “[rlesisting the
execution of the laws under color of its authority.” (Emphasis
added). No provision of the Constitution of Virginia grant absolute
immunity to the Judicial Branch. Instead VA. Code § 8.01-195.3(3)
specifically provides for a cause of action against a judge for acts
outside of jurisdiction or judicial capacity. Also, Article IV, § 9 of
the Constitution of Virginia provides only for limited absolute
immunity to the General Assembly, “except [for] treason, felony,
or breach of the peace.” Finally, pursuant to Article IV § 14(18) of
the Constitution of Virginia the General Assembly is prohibited
from enacting any special law granting any individual immunity
from suit.
27
jurisdiction or judicial capacity, judicial’ immunity is
lost. Rankin v. Howard633 F.2d 844 (1980), Den Zeller
v. Rankin, 101 S.Ct. 2020 (1981). Whenever a judge
acts where he does not have jurisdiction to act, the
judge is engaged in an act or acts of treason. U.S. v.
Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392,
406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,
404, 5 L.Ed 257 (1821). This includes if a judge does
not fully comply with the Constitution and statute,
then his orders are void, In re Sawyer, 124 U.S. 200
(1888), he is without jurisdiction, and he has engaged
in an act or acts of treason.
b. The Virginia Malfeasors Have No Immunity
For Treason.
The benchmark for accountability of employees
of the government can be found in United States v. Lee,
106 U.S. 196, 220 (1882), wherein the U.S. Supreme
Court stated that,
[nJo man in this country is so high that he is
above the law. No officer of the law may set that
law at defiance with impunity. All the officers of
the government, from the highest to the lowest,
are creatures of the law and are bound to obey it.
It is the only supreme power in our system of
government, and every man who by accepting
office participates in its functions is only the
more strongly bound to submit to that
supremacy, and to observe the limitations which
it imposes upon the exercise of the authority
which it gives. (Emphasis added).
28
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Pro eee a, Po ee eS
7 of tet ee *
More recently this Court held in Scheuer v.
Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) that,
when a state officer acts under a state law in a
manner violative of the Federal Constitution, he
“comes into conflict with the superior authority
of that Constitution, and he is in that case
stripped of his official or representative
character and is subjected in his person to the
consequences of his individual conduct. The
State has “no power to impart to him any
immunity from responsibility to the supreme
authority of the United States. [Emphasis
supplied in original]. :
In total disregard of this holding, Judges of the
Supreme Court of Virginia have given themselves and
the other Virginia Malfeasors absolute judicial and
quasi’ judicial and ministerial immunity for acts of
treason.
However, it is clear that neither Judges nor
government attorneys have any judicial/ministerial
immunity for treason, criminal acts, aiding, assisting,
or conniving with others who perform a criminal act, or
for violating their administrative/ministerial authority
and oath of office to serve the people.
c. No Immunity For A Criminal Enterprise
In the instant action the evidence confirms a
criminal conspiracy in violation of 18 U.S.C. §§ 241,
242, and § 1513 (Add-c and d), by the issuance and
enforcement of VSBDB vod orders to injure, punish
29
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and stigmatize Rodriguez and a conspiracy to obstruct
justice.
Thus, both absolute and qualified immunity are
lost with the evidence of criminal violations. Turner v.
Houseman, 2008 WL 647526, 2008 U.S. App. LEXIS
5127, slip op. At 3 (10" Cir. (Okla.) March 10,
2008)(No.07-6108, unpublished).
. Crime is contagious. If Government becomes a
lawbreaker, it breeds contempt for law; it invites
every man to become a law unto himself; it
invites anarchy.” O/mstad v. United States, 277
U.S. 438 (1928).
CONCLUSION
The evidence of the use the VSBDB as a linchpin
in a criminal enterprise to silence Rodriguez in
retaliation for his petitioning Congress and litigating to
enforce his Federal statutory rights is a violation of
Federal criminal law, and there can be no absolute
immunity. Also as the practice of law is unquestionably
a “fundamental right,” the Supreme Court of Virginia
has acted outside of its jurisdiction and judicial
authority does call for the exercise of this Court's
supervisory power.
Therefore, the Court must take thé opportunity
to revisit the use of its “discretionary appellate
jurisdiction” under the Judiciary Act of 1925 (43 Stat.
30
936),’ which for more than seven years has invited the
Virginia Malfeasors to violate both the laws of the
United States in total disregard of the Supremacy
Clause (Add-a), and the laws of Virginia.
This is because the Judicial Branch of
government is charged with the duties of maintaining
justice. The court system is supposed to be independent
of the other two branches of government so to assure
that within the limitations of the Constitution the
government work for the people. That is how the
Constitution defines the role of the justice system. Thus
the Constitution defines things the courts can not do as
well as things it must do. As Chief Justice Marshall in
Cohens v. Virginia, 6 Wheat, 264, 404 (1816), stated,
It is most true that this court will not take
jurisdiction if it should not; but it is equally true
that it must take jurisdiction if it should. The
judiciary cannot, as the legislature may, avoid a
méasure because it approaches the confines of
the Constitution. We cannot pass it by because
it is doubtful. With whatever doubts, with
whatever difficulties, a case may be attended, we
must decide it, if it be brought before us. We
have no more right to decline the exercise of
jurisdiction which is given, than to usurp that
which is not given. The one or the other would
be treason to the Constitution. Questions may
*This policy was designed to “[iet] issues ‘percolate’ in the
50 States in the interests of federalism over [its] responsibility to
resolve emerging constitutional issues.” Johnson v. Texas, 509 U.S.
350, 379 (1993)(J ustice O'Connor, dissenting)
31
‘occur which we would gladly avoid, but we
cannot avoid them. All we can do is to exercise
our best judgement, and conscientiously perform
our duty.
For the foregoing reasons this Court must grant
Certiorari. The evidence is indisputable, the holding of
absolute judicial and executive branch immunity from
accountability for malfeasance is a real and present
danger to our Republic. This because, "[flind out just
what the people will submit to and you have found out
the exact amount of injustice and wrong which will be
imposed upon them; and these will continue until they
are resisted with either words or blows, or with both.
The limits of tyrants are prescribed by the endurance
of those whom they oppress. (Emphasis added)
Frederick Douglass, civil rights activist, Aug. 4, 1857.
Respectfully submitted,
—_———
Isidoro Rodriguez,
Admitted to the Bar of
The United States Supreme Court, Sept. 11, 1992
7924Payton Forest Trail
Annandale, Virginia 22003-1560
Telephone: 571.423.5066
-
ADDENDUM
U.S. CONSTITUTIONAL PROVISIONS INVOLVED
The Supremacy Clause of the United States
Constitution, article VI, clause 2, provides: This |
Constitution, and the Laws of the United States which .
shall be made in Pursuance thereof; and all Treaties
made, .. ., shall be the supreme Law of the Land; and
the Judges in every States shall be bound thereby... .
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| Section 1 of the Fourteenth Amendment
: provides that, “No State shall make or enforce any law
which shall . . . deprive any person of . . property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.”
VIRGINIA CONSTITUTION
Article I, § 11. Due Process of Law; Obligation
of Contracts; . . . ; Jury Trial in Civil Cases,
provides,(t]hat no person shall be deprived of his .. .
property without due process of law; that the General
Assembly shall not pass ary law impairing the
obligation of contracts, . . .That in controversies
respecting property, . . trial by jury is preferable to any
otner.... .
Article VI, § 1. Judicial power; jurisdiction. —
The judicial power of the Commonwealth shall be
vested in a Supreme Court and in such other courts of
original or appellate jurisdiction subordinate to the
Supreme Court as the General Assembly may from
time to time establish.
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Article VI, § 5. Rules of practice and procedure.
— The Supreme Court shall have the authority to
make rules governing the course of appeals and the
practice and procedures to be used in the courts of the
Commonwealth, but such rules shall not be in conflict
with the general law as the same shall, from time to
time, be established by the General Assembly.
Article VI, § 7. Selection . . . of judges
The justice of the Supreme Court of shall be
chosen by vote of the . .. General Assembly. ... The
judge of all other courts of record shall be chosen by the
... General Assembly ....
THE VIRGINIA CODE INVOLVED
Va. Code § §8.01-195.3. Commonwealth,
transportation district or locality liable for damages in
certain cases. — Subject to the provisions -of this
article, the Commonwealth shall be liable for claims for
money only accruing on or after July 1, 1982, and any
transportation district shall be lable for claims for
money only accruing on or after July 1, 1986, on
account of damage to or loss of property or personal
injury or death caused by the negligent or wrongful act
or omission of any employee while acting within the
scope of his employment under circumstances where
the Commonwealth or transportation district, if a
private person, would be liable to the claimant for such
damage, loss, injury or death. However, except to the
extent that a transportation district contracts to do so
pursuant to § 15.2-4518, neither the Commonwealth
nor any transportation district shall be liable for
interest prior to judgment or for punitive damages. The
3
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amount recoverable by any claimant shall not exceed (i)
$25,000 for causes of action accruing prior to July 1,
1988, $75,000 for causes of action accruing on or after
July 1, 1988, or $100,000 for causes of action accruing
on or after July 1, 1993, or (ii) the maximum limits of
any liability policy maintained to insure against such
negligence or other tort, if such policy is in force at the
time of the act or omission complained of, whichever | is
greater, exclusive of interest and costs.
Notwithstanding any provision hereof, the individual
immunity of judges, the Attorney General, attorneys for the
Commonwealth, and other public officers, their agents and
employees from tort claims for damages is hereby preserved
to the extent and degree that such persons presently are
immunized. Any recovery based on the following claims are
hereby excluded from the provisions of this article:
3. Any claim based upon an act or omission of any court
of the Commonwealth, or any member thereof acting in his
official capacity, or to the judicial functions of any agency
subject to the provisions of this article.
4. Any claim based upon an act or omission of an officer,
agent or employee of any agency of government in the
execution of a lawful order of any court.
6. Any claim arising out of the institution or
prosecution of any judicial or administrative
proceeding, even if without probable cause... .
Va. Code § 18.2-481. Treason defined; how
proved and punished. — Treason shall consist only in:
(5) Resisting the execution of the laws under
color of its authority.
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Such treason, if proved by the testimony of two
witnesses to the same overt act, or by confession in
court, shall be punishable as a Class 2 felony (Code
1950, § 18.1-418; 1960, c. 358; 1975, cc. 14, 15.)
Va. Code18.2-482. Misprision of treason.
If any person knowing of such treason shall not,
as soon as may be, give information thereof to the
Governor, or some conservator of the peace, he shall be
guilty of a Class 6 felony.
Va Code § 18.2-499. Combination to injure
others in their reputation, trade, business or profession:
right of empioyees
(a) Any two or more persons who shall combine,
associate, agree, mutually undertake or concert
together for the purpose of wilfully and maliciously
injuring another in his reputation, trade, business or
profession by any means whatever, or for the purpose
of wilfully and maliciously compelling another to do or
perform any act against his will, or preventing or
hindering another form doing cr performing any lawful
act, shall be jointly and seve sa'iy guilty of a Class 3
misdemeanor. Such punishment shall be in addition to
any civil relief recoverable under § 18.2-500.
(b) Any person who attempts to procure the
participation, cooperation, agreement or other
assistance of any one or more persons to enter into any
combination, association, agreement, mutual
understanding or concert prohibited in subsection (a) of
this section shall be guilty of a violation of this section
and subject to the same penaltics set out in subsection
(a) hereof.
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Va Code § 18.2-500. Same: civil relief; damages
and counsel fees; injunctions. — (a) Any person who
shall be injured ii his reputation, trade, business or
profession by reason of a violation of § 18.2-499, may
sue therefor and recover three-fold the damages by him
sustained, and the costs of suit, including a reasonable
fee to plaintiffs counsel; and without limiting the
generality of the term, “damages” shall include loss of
profits. Such counsel shall in no case receive any other,
further or additional compensation except that allowed
by the court and any contract to the contrary shall be
null and void.
Va. Code § 54.1-3910. Organization and
government of Virginia State Bar. — The Supreme
Court may promulgate rules and_ regulations
organizing and governing the Virginia State Bar. The
Virginia State Bar shall act as an administrative
agency ofthe Court for the purpose of investigating and
reporting violations of rules and regulations adopted by
the Court under this article. . ...
Va. Code § 54.1-3915. Restrictions as to rules
and regulations.---Not withstanding the foregoing
provisions of this article, the Supreme Court shall not
promulgate rules or regulations prescribing a code of
ethics governing the professional conduct of attorneys
which are inconsistent with any statute; ....
Va. Code § 54.1-3935. Procedure for revocation
of license. A. If the Supreme Court, the Court of
Appeals, or any circuit court of this Commonwealth
observes, or if a complaint, verified by affidavit is made
by any person to such court, that any attorney has...
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violated the Virginia Code of Professional
Responsibility, the court may assign the matter to the
Virginia State Bar for investigation. Upon receipt of the
report of the Virginia State Bar, the court may issue a
rule against such attorney to show cause why his
license to practice law shall not be revoked. If the
complaint, verified by affidavit, is made by a district
committee of the Virginia State Bar, the court shall
issue a rule against the attorney to show cause why his
license to practice law shall not be revoked.
B. If the rule is issued by the Supreme Court . .
. the rule shall be returnable to the Circuit Court of the
City of Richmond. At the time the rule is issued by the
Supreme Court, the Chief Justice shall designate three
circuit court judges to hear and decide the case. . . . In
proceedings under this section, the court shall adopt
the Rules and Procedures described in Part Six, Section
IV, Paragraph 13 of the Rules of Court.
C. Bar Counsel of the Virginia State Bar shall
prosecute the case... .
D. Upon the hearing, if the attorney is found
guilty by the court, his license to practice law in this
Commonwealth shall be revoked .....
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APPENDIX
TABLE OF CONTENT
1. July 31, 2008,-Void Order of the Supreme Court of
Virginia affirming void order of the Fairfax County
Circuit Court holding absolute Judicial and Executive
Branch immunity for tort and criminal acts outside of
capacity and jurisdiction, and denial of jury trial,
Isidoro Rodriguez, Esq. v. Hon. Hassell et al, No.
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3. June 29, 2007, Void Order of the Supreme Court of
Virginia affirming void order of the Virginia State Bar
revoking Rodriguez's license to practice law for taking
“actions” to enforce his rights under Treaty and Va.
Code as a father and Virginia attorney, Jsidoro
Rodriguez, Esq. v. Virginia State Bar, No. 070283 A-3
4. November 28, 2006, Void order ofthe VSBDB A-4
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VIRGINIA: |
In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Thursday the 31* day of July, 2008.
Isidoro Rodriguez,
Appellant,
v. Record No. 081146
Circuit Court No. CL-2007-15396
Lefoy Rountree Hassell, et a/,
Appellees.
From the Circuit Court of Fairfax County
Finding no error in the judgment complained of,
the petition for appeal is refused. The Court dispenses
with oral argument in this case. The appellees’ motion
to dismiss alleging noncompliance with Rule 5:11 is
denied as moot.
Chief Justice Hassell and Justices Keenan,
Koontz, Kinser, Lemons and former Justice Agee took
no part in the consideration of this case.
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Teste: |
Patricia Harrington, Clerk
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Virginia:
In the Circuit Court of Fairfax County
Isidoro Rodriguez,
Plaintiff,
Vv. Record No. 081146
Circuit Court No. CL-2007-15396
Hon. Leroy Rountree Hassell, Sr., et a/.,
Defendants.
Order
This cause came to be heard on the 28" day of
March, 2008, on Defendants (with the exception of Hassell,
Sr., and Justice Barbara M. Keenan of the Supreme Court
of Virginia) Demurrer, Plea of Judicial Immunity and
Pea of res Judicata.
Upon the matters presented to the Court in
writing and at the hearing, it is
ADJUDRED, ORDERED, and DECREED as
follows:
Defendants’ Demurrer is SUSTAINED and Pleas
of Judicial Immunity is GRANTED. Court declined to
rule on plea of res judicata due to other dispositive
motions.
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VIRGINIA:
In the Supreme Court of Virginia held at the
Supreme Court Building in the City of Richmond on
Friday the 29" day of June, 2007.
isidoro Rodriguez, Esq.
Appellant,
v. Record No. 070283
VSB Docket Nos. 04-052-0794
And 04-052-1044
Virginia State Bar,
Appellee.
Upon an appeal of right from an order entered by the
Virginia State Bar Disciplinary Board.
Upon consideration of the record, briefs, and
arguments by appellant, in proper person, and by
counsel for the appellee, the Court is of the opinion that
there is no error in the order of the Virginia State Bar
Disciplinary Board (the “Board”) revoking Isidoro
Rodriguezs license to practice law in_ the
Commonwealth of Virginia based upon finding that he
violated Rules 1.2, 1.5, 1.7, 1.16, 3.1, 3.4, 3.7, 4.4, 7.1
and 8.4 of the Virginia Rules of Professional Conduct.
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In reviewing the Board’s decision in a
disciplinary proceeding, we conduct an independent
examination of the entire record. We consider the
evidence and all reasonable inferences that may be
drawn form the evidence in the light most favorable to
the Bar the prevailing party in the Board proceeding.
We give the Board’s factual finding substantial weight
and view them as prima facie correct. While we do not
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give the Board’s conclusions the weight of a jury
verdict, we will sustain those conclusions unless it
appears they are not justified by reasonable view of the
evidence or are contrary to law. Barrett v. Virginia
State Bar, 269 Va. 583, 587-88, 611 S.E.2d 375, 377
(2005) (quoting Williams v. Virginia State Bar, 261 Va.
258, 264, 542 S.E.2d 385, 389 (2001) (citations
omitted); see also El-Amin v. Virginia State Bar, 257
Va. 608 612, 514 S.e.2d 163, 165 (1999); Myers v.
Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286,
287 (1984).
In making its determination, the Board
considered allegations that Rodriguez violated the
Rules of Professional Conduct during litigation
involving two sets of cases. One group of cases
involving Rodriguez’s relationship and work with Sea
Search Armada. The other group involved custody
litigation regarding his son. The Virginia State Bar
proved by clear and convincing evidence that Rodriguez
violated Rules 1.2(a), 1.5(a), 1.16(a)(3), 3.4(D, 7.1(a),
and 8.4(b) and ( c ) in his relationship with and
representation of Sea Search Armada, including his
attempts to recover unpaid attorney’s fees. The Virginia
State Bar proved by clear and convincing evidence that
Rodriguez violated Rules1.7(b), 3.1, 3.4(d)(h)@QG),
3.7(a), 4.4, and 8.4.
We independently review each of the alleged
Rule violations and find no error in the Board’s order.
Accordingly, the order appealed from is affirmed.
Appellant shall pay to the appellee thirty dollars
damages.
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Teste
VIRGINIA:
BEFORE THE VIRGINIA STATE BAR
DISCIPLINARY BOARD
IN THE MATTER OF ISIDORO RODRIGUEZ
VSB DOCKET NOS. 04-052-0794 and 04-052-1044
ORDER OF VIRGINIA STATE BAR
DISCIPLINARY BOARD
THIS MATTER came on to be heard on the 26th
and 27th days of October, 2006, before a panel of the
Disciplinary Board consisting of James L Banks, Jr.,
lst Vice-Chair, presiding,(the “Chair”), William C.
Boyce Jr, Glenn M. Hodge, William F. (Hover, and
Stephen A. Wannall, Lay member. The Virginia State
Bar (“VSB” or “Bar”) was represented by Noel D.
Sengel, Senior Assistant Bar Counsel. The Respondent,
Isidro Rodriguez, appeared in person and represented
himself. The Chair polled the members of the Board
Panel as to whether any of them was aware of any
personal or financial interest or bias which would
preclude any of them from fairly hearing this matter
and serving on the panel, to which inquiry each
member: including the Chair, responded in the
negative. Donna T. Chandler, RPR, RMR, CCR of
Chandler & Ralasz, court reporter. P.O. Box 9349,
Richmond, Virginia, 23227, (804-730-1222) after being
duly sworn, reported the hearing and transcribed the
proceedings.
The matter came before the Board on the
Subcommittee Determination (Currected Certification)
by the Fifth District Committee Section II.
At the beginning of the proceedings the
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Respondent renewed his motion for the members of the
panel to disqualify themselves as being interested
patties for the reasons stated in his written motion
previously filed. Upon consideration of this motion it
was denied by the Panel for the reasons previously
stated in the Board’s Order of August 8,2006 that
originally addressed Respondent’s Motion to Recuse
and Disqualify Members of the Disciplinary Board
Within the Jurisdiction of N. Virginia and the U.S.
Dist. Ct. for the RD. of Va. so to Assure Impartiality.
FINDINGS OF FACT
VSB Exhibits 1-92 were admitted during the
course of the hearing without objection. The
Respondent’s Exhibits 1-42 were admitted during the
course of the hearing without objection or over Bar
counsel’s objection. The VSB presented evidence
through its witnesses, the Respondent cross-examined
the witnesses and thereafter testified on his own
behalf. After consideration of the exhibits and the
testimony the Board makes the following findings of
fact on the basis of clear and convincing evidence:
VSBNo. 04-052-0794
1. At all times relevant hereto, Isidoro
rodriguez, hereinafter the “Respondent”, has been an
attorney licensed to practice law in the Commonwealth
of Virginia and his address of record with the Virginia
State Bar has been 7924 Peyton Forest Trail,
Annandale, VA 22003-1560. VSB Ex. 1. The
Respondent received paper notice of this proceeding as
required by Part Six, IV, 13 (E) and (D(a) of the Rules
of Virginia Supreme Court. VSB Ex. 2.
2. The Complainant, Jack Harbeston,
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hereinafter referred to as “Harbeston”, was the
managing director of Sea Search Armada (“SSA”) a
Cayman Island entity that invests in and conducts
searches for sunken treasure ships and engages in the
salvage and the recovery of their contents. Sometime
prior to 1988 SSA had discovered what it thought to be
the remains of sunken Spanish ships off the coast of
Colombia. SSA had been unable to have its rights
to any sunken treasure recognized by the government
of Columbia and was looking for legal representation
in Colombia to assert its claims. Harbeston sought
assistance from the Economic Officer at the United
States Embassy in Bogota, Colombia for names of
attorneys who could represent SSA The Economic
Officer provided Harbeston with a list of attorneys in
Colombia which included the Respondent as a member
of the partnership of Devis and Rodriguez. Harbeston
subsequently contacted the Respondent regarding
possible legal representation. In his conversation with
the Respondent, Harbeston learned that Devis, a
Colombian attorney, would handle any litigation on
behalf of SSA in the Colombian courts. Harbeston was
looking for an American attorney, if possible, because
of his concerns as to the potentially divided loyalty ofa
Colombian attorney. In correspondence between the
Respondent and Harbeston, Respondent noted that he
was the only attorney licensed in the United States
working in Colombia and as such his firm was subject
to the same standards as law firm in the United States;
that unlike any other firm in Colombia his firm “must
comply with the State of Virginia Bar Association’s
Ethics of Professional Responsibility.” VSB Ex. 4.
3. SSA subsequently hired the firm of Devis and
Rodriguez. By agr2ement dated October 20, 1988, the
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parties entered into a representation agreement
prepared by Rodriguez which set forth the terms of the
engagement including a fee arrangement on an hourly
basis that had been discussed prior to the execution of
the agreement. VSB Ex. 7. By affidavit dated October
21, 1988, Harbeston, as managing Director of SSA,
authorized the law firm of Devis and Rodriguez to act
as SSA’s legal representative to pursue its claims in
Colombia.
4. Inorder for SSA to proceed with its claims in
Colombia, SSA was required to appoint an agent with
broad powers to represent SSA. By agreement dated
December 16, 1988, executed in the District of
Columbia, SSA appointed the Respondent as its legal
representative in Colombia. Respondent’s Ex. 8.
However, Harbeston and SSA were concerned with the
scope of the general power of attorney appointing
Rodriguez as its agent in Colombia (Respondent’s Ex.
8) and sought to limit his authority by advising the
Respondent that he could only act upon the written
authorization of Harbeston. By letter dated December
14, 1988, the Respondent acknowledged this limitation
on his authority, noting that any viclation of the
restriction “will result in an action before The Virginia
Bar Ethics Committee”. VSB Ex. 9. By memorandum
dated December 13, 1988, Harbeston advised all law
firms employed by 58.4, including Devis and Rodriguez,
that John Erlichman would coordinate and manage all
litigation by SSA. VSB Ex. 8.
5. By letter dated Januaryl0, 1989 SSA
authorized Respondent as its legal representative in
Colombia to file a lawsuit against the Republic of
Colombia to confirm its rights to the sunken ships. VSB
Ex. 12. Thereafter, Devis proceeded to pursue SSA’s
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claims in the courts of Colombia with apparent skill
and professionalism to the satisfaction of SSA.
Harbeston soon became dissatisfied with the
Respondent’s performance because of actions he took
without written authorization but nevertheless
continued the representation arrangement because of
his satisfaction with Devis’ performance as a litigator.
By memorandum to Respondent dated June 9, 1989,
(VSB Ex. 13) Harbeston reaffirmed that Respondent
was to take no action on behalf of SSA without
Harbeston’s written authorization as Respondent had
acknowledged by his December 14,1988 letter.
Sometime thereafter, but prior to January 1990, the
law firm of Rodriguez and Devis had dissolved but F
Devis continued to represent SSA in its ongoing
litigation against the Republic of Colombia. By
agreement dated January 3, 1991, Respondent, acting
as attorney for SSA, entered into a professional services
agreement with Devis to continue with the litigation on
behalf of SSA against the Republic of Colombia. This
agreement changed the fee arrangement to a
contingency fee arrangement whereby Devis would
receive 20% of any recovery. VSB Ex. 14. Devis and the
Respondent then entered into an agreement to share
any contingent fee recovery.
6. By request dated January 3, 1990, the
Respondent sought a legal ethics opinion from the VSB
that as a Virginia attorney who had entered into a
contract in Idaho to be performed in a foreign country,
whether he could terminate his representation because
the client had failed to pay his fee and could sue the
client to collect such a fee. The VSB Ethics Committee
gave its opinion on the issue (LEO 1325) that under the
facts presented, the Respondent could terminate his
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representation and sue the client for fees, with the
opinion concluding with the customary notice that it
was an advisory opinion and not binding on any court.
VSB Ex. 18.
7. Devis continued the litigation successfully as
the case made its way through the Colombian judicial
system as the Colombian government appealed each
adverse decision. Respondent does not appear to have
played any role in the litigation. By letter dated March
24,2000 Devis advised Respondent not to use his name
in Respondent’s professional activities, and that
Harbeston was upset with Respondent’s activities and
wanted to revoke the power of attorney. VSB Ex. 15.
Devis acknowledged he would honor their contingent
fee sharing arrangement By letter dated April 6,2000,
Harbeston revoked the general power of attorney from
SSA to Respondent (which he had forgotten to do
earlier), stating that neither SSA nor its related
entities owed Respondent any legal fees and that any
understanding relating to fees was in the agreement
between Devis and Respondent to share any
contingency fee. VSB Ex. 16.
8. In September of 2000 the Respondent filed
suit against SSA in the United States District Court for
the Eastern District of Virginia seeking to enforce a
claim for attorney’s fees in the amount of $4.5 million
against SSA. VSB Ex. 19, The Respondent testified
that he based the amount of his attorney’s fee claim on
the annual salary ($300,000 to $400,000) of a legal
representative of a United States company in a foreign
land for a period of 12 years. Included as defendants in
this litigation were Harbeston, related entities to SSA
and Devis. None of the defendants were residents of the
Commonwealth of Virginia. The Respondent basis for
A-ll
jurisdiction by the federal court in Virginia was the fact
that he was a Virginia attorney, Virginia Code Section
54.1-3932 grants an attorney a lien for fees and LEO
1325 which said he could sue his client. The defendants
in this litigation obtained the services of Harrison
Pledger, a Virginia attorney, who filed a motion to
dismiss based on the lack of personal jurisdiction over
the defendants. This motion was granted and the suit
was dismissed. The Respondent then appealed to the
Fourth Circuit Court of Appeals and that court
affirmed the District Court’s ruling. The Respondent
then petitioned for a Writ of Certiorari in the United
States Supreme Court but that petition was denied.
9. After the denial of The Writ of Certiorari by
the United States Supreme Court the Respondent filed
a slightly different law suit in the United States
District Court for the Eastern District of Virginia
against the defendants in the earlier suit and also
added several other defendants who were investors in
SSA or related entities. VSB Ex. 20. The District Court
dismissed this second law suit, finding that the
Respondent had failed to plead additional facts to the
first suit to give the court personal jurisdiction over any
of the defendants. This ruling was affirmed on appeal
to the Fourth Circuit The Resenondent then sought a
Writ of Certiorari from the United States Supreme
Court which was also denied.
10. While the appeal of the second lawsuit was
pending, the Respondent filed a third similar lawsuit -
this time in the Circuit Court of Fairfax County against
SSA. In this third lawsuit the Respondent named the
defendants in the second law suit and Harrison Pledger
and his law firm 4s defendants. VSB Ex. 21. This law
suit was also dismissed but the court denied the
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defendants’ motions for sanctions.
11. The Respondent created a website which
displayed false and misleading information regarding
his relationship with SSA and his participation in the
litigation in Colombia. VSB Ex 24 & 25. On the site,
the Respondent claimed that in 1988, at the request of
the United States Department of State, he became
SSA's legal representative and managing attorney
responsible for managing alternative dispute resolution
negotiations and outside counsel in litigation against
the government of Colombia, posts he claims he held
until 2000. These assertions are not true. On his
resume, the Respondent listed a LLM Civil law degree
from the University of Bordeaux. While the Respondent
attended a class at the University of Bordeaux, he
rever received a degree from that university. The
Respondent also listed an American Trial Lawyers
Ultimate Trial Lawyer Certification. There is no such
certification. The basis for Respondent’s claim is the
fact that he attended a one week continuing legal
education program sponsored byte Association of Trial
Lawyers of American titled “Ultimate Trial Advocacy”.
12. Respondent, in 2004,while communicating
with the U.S. State Department regarding Freedom of
Information Act (“FOIA”) requests he had made for
information relating to SSA litigation, represented that
he was the attorney for SSA notwithstanding the fact
that Harbeston had revoked his authority in 2000. VSB
Ex. 23. Respondent claimed that since the power of
attorney filed with the Colombian government had
never been terminated he was not making a
misrepresentation in his FOIA request.
VSB Docket No. 04-502-1044
A°13
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1. The Respondent lived for many years in
Colombia and had married Amalin Hazbun Escaf a
citizen of Colombia. One son was born of the marriage.
The marriage ultimately ended in a divorce in
Colombia with the wife/mother obtaining custody of the
son by order of a Colombian court with visitation rights
to the Respondent.
2. re Respondent subsequently iinind to the
United S.vates where he has been living and his son
visited him pursuant to the visitation rights granted by
the Colombian Court. In 2001 while the son was
visiting the Respondent the Respondent refused to
return his son to Colombia and filed an action in the
Juvenile and Domestic Relations Court in Fairfax
County to gain custody of his son.
3. In 2001, subsequent to the filing of
Respondent’s suit in the Juvenile and Domestic
Relations Court in Fairfax County, Respondent’s
ex-wife filed an action in the United States District
Court for the Eastern District of Virginia, under the
Hague Convention 7n the Civil Aspects of Child
Abduction (the “Hague Convention”) and the
International Chiti Abduction Remedies Act (““ICARA”)
in order to secure the return to Colombia of her son.
VSB Ex. 34. In this litigation she was represented by
Patrick Stiehm, a Virginia attorney who had
undertaken this representation pro bono at the request
of the National Center for Missing and Exploited
Children (“NCMEC”). NCMEC is a non profit
corporation that acts as a neutral in facilitating the
processing of claims under the Hague Convention and
ICARA. When Stiehm initially contacted Respondent to
inform him of the pending litigation, Respondent told
Stiehm that his pro bono representation would cost
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Stiehn “a big chung of change.” In keeping with this
threat, Respondent immediately filed a motion for
sanctions against Stichn (VSB Ex. 35) but that motion
was denied. VSB Ex. 38. However, Respondent's
subsequent litigation described herein, which included
Stiehm as a defendant, resulted in Stiehm incurring
significant legal expenses to respond to meritless and
vexatious litigation.. After a bench trial the Court ruled
that the Respondent had kept the child in Virginia in
violation of his ex-wife’s custody rights. VSB Ex. 39.
The Court ordered that the child be removed from the
Respondent’s custody and returned to the child’s
mother in Colombia The Respondent’s appeals to the
Fourth Circuit Court of Appeals and the United States
Supreme Court were denied. After all appeals and
stays were denied the son was reunited with his mother
and left for Colombia in June of 2002. -
4. In January of 2003, the Respondent filed suit
in the District Court for the District of Columbia
against numerous defendants, including NCMEC,
several employees of NCMEC, the United States
District Court for the Eastern District of Virginia, the
Fourth Circuit Court of Appeals, the Circuit Court of
Fairfax County, the Court of Appeals of Virginia, the
District Court for the District of Columbia, the United
States Court of Appeals for the District of Columbia,
various judges, a court clerk, the United States
Department of State, Patrick Stiehm and Stephen
Cullen (an attorney who had assisted Stiehm in the
Virginia litigation) claiming a constitutional conspiracy
by the defendants against him in his litigation in
Virginia. VSB Ex. 43. Staff members of NCMEC had
been witnesses in the Virginia litigation and NCMEC
had provided legal representation to witnesses in the
A°15
Fe ery Ce eee ee Cees
litigation in Virginia. In filing this litigation in which
Respondent and his son were named as plaintiffs,
Respondent who is not licensed to practice in the
District of Columbia and had not obtained an order to
appear pro hoc vice, attempted to act as attorney for his
son.
5. In March of 2003, the Respondent filed a Writ
of Mandamus in an attempt to compel NCMEC to take
actions to force the country of Colombia to grant the
Respondent access to his son. VSB Ex. 64. By letter
dated September 24,2003, Warren L. Dennis, Esquire,
counsel for NCMEC, inforiaed the Clerk of the United
States Supreme Court that NCMEC would not be filing
a responsive brief to the Respondent’s Writ because,
inter alia, it had no power to compel the government of
the country of Colombia to-do anything. VSB Ex. 65.
Upon receipt of a copy of the letter, the Respondent
called Mr. Dennis’s office and left a voice mail message
in which he threatened to file an ethics complaint
because the letter falsely characterized the
Respondent’s Virginia litigation. Also, by letter dated
September 29,2003, the Respondent gave notice of his
intent to file a judicial complaint and District of
Columbia Bar complaint against those involved in the
litigation unless facts already proved were proved
within twenty-four (24) hours. VSB Ex 67.
6. In the District of Columbia litigation the
Respondent repeatedly filed pleadings with no basis in
law or fact. VSB Ex. 43 - 81. In an amended complaint
(VSB Ex. 72) Respondent asserted a claim under the
Racketeer Influenced and Corrupt Organization Act
(RICO) 18 U.S.C.°1961. Included as defendants in the
complaint were the United States Supreme Court; the
United States Court of Appeals for the Fourth Circuit;
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the United States Court of Appeals for the District of
Columbia, the United States District Court for the
Eastern District of Virginia, the United States District
Court for the District of Columbia, the Virginia
Supreme Court, the Court of Appeals of Virginia and
the Circuit Court of Fairfax County. Respondent’s
actions in the D.C. litigation clearly demonstrates his
use of the legal system to harass and intimidate anyone
whom he considered to have been involved in the
Virginia litigation that returned his son to Colombia
and to re-litigate the Virginia case.
7. Respondent’s actions in naming NCMEC and
some of its employees as defendants in this litigation
cost NCMEC over $160,000 in legal expenses and
nearly bankrupted the organization. Throughout the
course of this litigation, the Respondent misrepresented
his credentials as a lawyer and his license status in
the District of Columbia and New York to the courts
and opposing parties. The Respondent graduated from
law school in 1976. He was first licensed to practice law
in the Commonwealth of Virginia in 1982. Virginia is
the only jurisdiction in which Respondent has a license
to practice law. The Respondent listed a number of
governmental and quasi governmental legal jobs in the
District of Columbia on his resume between the years
1976 and 1982 requiring a valid law .license in the
United States, during which period he was not licensed
to practice law anywhere in the United States. The
Respondent also noted on various documents that he
practiced law in the District of Columbia for a period
of time after his licensure in Virginia, but has never
been licensed in the District of Columbia.
8. During this litigation, the Respondent filed
pleadings and attempted to represent his minor son on
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several occasions in the District of Columbia litigation,
despite the fact there was a conflict of interest between
the father and son, despite the fact that the Respondent
would be a witnes§ in the case and despite the fact that
the judge instructed the Respondent to cease
representing his son. VSB Ex 48 & 50. The
Respondent’s law partner also attempted to represent
the son but the court refused to permit that
representation.
I. MISCONDUCT
The Certification for VSB Docket No.
04-052-0794 charges violations of the following
provisions of the Virginia Rules of Professional
Conduct:
RULE 1.2 Scope of Representation
(a) A lawyer shall abide by a client’s decisions
concerning the objectives of representation, subject to
paragraphs (b), (c), and (da), and shall consult with the
client as to the means by which they are to be pursued.
A lawyer shall abide by a client’s decision, after
consultation with the lawyer, whether to accept an offer
of settlement of a matter. In a criminal case, the lawyer
shall abide by the client’s decision, after consultation
with the lawyer, as to a plea to be entered, whether to
waive jury trial and whether the client will testify.
RULE 1.5 Fees
(a) A lawyer’s fee shall be reasonable. The factors to be
considered in determining the reasonableness of a fee
include the following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly:
(2) the likelihood, if apparent to the client, that
the acceptance of the particular employment will
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preclude other employment by the lawyer,
(3) the fee customarily charged in the locality for
similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
RULE 1.16 Declining Or Terminating
Representation
(a) Except as stated in paragraph ©, a lawyer
shall not represent a client or where representation has
commenced, shall withdraw from the representation of
a client if:
(3) the lawyer is discharged.
RULE 3.4 Fairness To Opposing Party And
Counsel
_ A lawyer shall not:
(I ) file a suit, initiate criminal charges, assert a
position, conduct a defense, delay a trial, or take other
action on behalf of the client when the lawyer knows or
when it is obvious that such action would serve merely
to harass or maliciously injure another.
RULE 7.1 Communications And Advertising
Concerning A Lawyer’s Services
(a)A lawyer shall not, on behalf of the lawyer or
any other lawyer affiliated with the lawyer or the firm,
use or participate in the use of any form of public
communication if such communication contains a false,
fraudulent, misleading, or deceptive statement or
claim. Forexample, a communication or advertisement
A-19
violates this Rule if it:
(1) contains misleading fee information;
(2) states or implies that the outcome of a
particular legal matter was not or will not be related to
its facts or merits;
(3) compares the lawyer’s services with other
lawyers’ services, unless the comparison can be
factually substantiated;
(4) contains an endorsement by a celebrity or
public figure who is not a client of the firm without
disclosure (I) of the fact that the speaker is not a client
of the lawyer or the firm, and (ii) whether the speaker
is being paid for the appearance or endorsement: or
(5) contains a portrayal of a client by a
non-client without a disclosure that the depiction is a
dramatization.
In the determination of whether a
communication or advertisement violates this Rule, the
communication or advertisement shall be considered in
its entirety including any qualifying statements or
disclaimers contained therein.
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
(b) commit a criminal or deliberately wrongful
act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer;
© engage in professional conduct involving
dishonesty, fraud, deceit or misrepresentation;
The Certification for VSB Docket No.
04-052-1044 charges violations of the following
provisions of the Virginia Rules of Professional
Conduct:
RULE 1.7 Conflict of Interest: General Rule
(b) A lawyer shall not represent a client if the
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representation of that client may be materially limited
by the lawyer’s responsibilities to another client or toa
third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation
will not be adversely affected: and
(2) the client consents after consultation. When
representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation
of the implications of the common representation and
the advantages and risks involved.
RULE 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a
basis for doing so that is not frivolous, which includes
a good faith argument for an extension, modification or
reversal of existing law. A lawyer for the defendant in
a criminal proceeding, or the respondent in a
proceeding that could
result in incarceration may nevertheless so defend the
proceeding as to require that every element of the case
be established. :
RULE 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly
(1) make a false statement of fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure
is necessary to avoid assisting a criminal or fraudulent
act by the client, subject to Rule 1.6;
(3) fail to disclose to the tribunal controlling legal
authority in the subject jurisdiction known to the
lawyer to be adverse to the position of the client and
not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If
a lawyer has offered material evidence and comes to
A-21
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know of its falsity; the lawyer shall take reasonable
remedial measures.
RULE 3.4*Fairness To Opposing Party And
Counsel
A lawyer shall not:
(d) Knowingly disobey or advise a client to disregard a
standing rule or a ruling of a tribunal made in the
course of a proceeding, but the lawyer may take steps,
in good faith, to test the validity of such rule or ruling.
(h) Present or threaten to present criminal or
disciplinary charges solely to obtain an advantage in a
civil matter.
(I) File a suit, initiate criminal charges, assert a
position, conduct a defense, delay a trail, or take other
action on behalf of the client when the lawyer knows or
when it is obvious that such action would serve merely
to harass or maliciously injure another. Effective
January 1,2004
(j) Present or threaten to present criminal or
disciplinary charges solely to obtain an advantage ina
civil matter, e
(k) File a suit, initiate criminal charges, assert a
position, conduct a defense, delay a trail, or take other
action on behalf of the client when the lawyer knows or
when it is obvious that such action would serve merely
to harass or maliciously injure another.
RULE 3.7 Lawyer As Witness
(a) A lawyer shall not act as an advocate in an
adversarial proceeding in which the lawyer is likely to
be a necessary witness except where:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and value
of legal services rendered in the case; or
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(3) disqualification of the lawyer would work
substantial hardship on the client.
RULE 44 Respect For Rights Of Third Persons
In representing a client, a lawyer shall not use
means that have no purpose other than to embarrass,
delay: or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such
a person.
RULE 5.5 Unauthorized Practice Of Law
(a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so
violates the regulation of the legal profession in that
jurisdiction; or
(2) assist a person who is not a member of the bar in
the performance of activity that constitutes the
unauthorized practice of law.
RULE 7.1. Communications Concerning A
Lawyer’s Services
(a) A lawyer shall not, on behalf of the lawyer or
any other lawyer affiliated with the lawyer or the firm,
use Or participate in the use of any form of public
communication if such communication contains a false,
fraudulent, misleading, or deceptive statement or
claim. For example, acommunication violates this Rule
if it:
(1) contains false or misleading fee information;
or
(2) states or implies that the outcome of a
particular legal matter was not OR will not be related
to its facts or merits; or
(3) compares the lawyer's services with other
lawyers’ services, unless the comparison can be
factually substantiated: or
(4) is likely to create an unjustified expectation
A-23
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about results the lawyer can achieve, or states or
implies that the lawyer can achieve results by means
that violate the Rules of Professional Conduct or other
law.
RULE 7.4 Communication Of Fields Of Practice
And Certification
Lawyers may state, announce or hold themselves
out as limiting their practice in a particular area or
field of law so long as the communication of such
limitation of practice is in accordance with the
standards of this. Rule, Rule_7.1, and Rule 7.3, as
appropriate. A lawyer shall not state or imply that the
lawyer has been recognized or certified as a specialist
in a particular field of law except as follows:
(a) A lawyer admitted to engage in patent
practice before the United States Patent and
Trademark Office may use the designation “Patent
Attorney” or a substantially similar designation:
(b) A lawyer engaged in Admiralty practice may
use as a designation “Admiralty,” “Proctor in
Admiralty” or a substantially similar designation;
(c) A lawyer who has been certified by the
Supreme Court of Virginia as a specialist in some
capacity may use the designation of being so certified,
e.g., “certified mediator” or a substantially similar
designation;
(d) Alawyer may communicate the fact that the
lawyer has been certified as a specialist in a field of law
by a named organization, provided that the
communication cléarly states that there is no procedure
in the Commonwealth of Virginia for approving
certifying organizations. Effective Nov. 1,2002
(a) A lawyer admitted to engage in patent
practice before the United States Patent and
A-24
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Trademark Office may use the designation “Patent
Attorney” or a substantially similar designation;
(b) A lawyer engaged in Admiralty practice may
use as a designation “Admiralty,” “Proctor in
Admiralty” or a substantially similar designation:
(c) A lawyer who has been certified by the
Supreme Court of Virginia as a specialist in some
capacity may use the designation of being so certified,
e.g., “certified mediator” or a substantially similar
designation;
(d) Alawyer may communicate the fact that the
lawyer has been certified as a specialist in a field of law
by a named organization, provided that the
communication clearly states that there is no procedure
in the Commonwealth of Virginia for approving
certifying organizations.
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
(b) commit a criminal or deliberately wrongful act that
reflects adversely on the lawyer’s’ honesty,
trustworthiness or fitness as a lawyer;
( c¢ ) engage in professional conduct involving
dishonesty, fraud, deceit or misrepresentation;
Effective Mar. 25, 2003
(b) commit a criminal or deliberately wrongful act that
reflects adversely on the lawyer's honesty,
trustworthiness or fitness to practice law.
(c¢) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation which reflects adversely on
the lawyer’s fitness to practice law;
Ill, DISPOSITION
Upon review of the forgoing finding of facts, the
exhibits presented by Bar Counsel on behalf ofthe VSB
as Exhibits 1-92, the exhibits presented by the
A-25
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Respondent as The Respondent’s Exhibits 1-42, the
evidence from witnesses presented on behalf of the VSB
and evidence presented by the Respondent in the form
of his own testimony, and at the conclusion of the
: evidence regarding misconduct, the Board recessed to
. deliberate. After deliberation the Board reconvened and
stated that it had found by clear and convincing
evidence that the Respondent had violated The
; following Rules of Professional Conduct: in Docket No.
04-052-0794, Rule 1.2(a); 1.5(a); 1.16(a)(3); 3.4(1); 7.1(a);
8.4(b) & ©; in Docket No. 04-052-1044. Rule 1.7(b) 1-2;
3.1; 3.4 (d)(h)(i)(j); 3.7(a)(1-3); 4.4 and 8(b) and ©).
The Board stated that the Bar had failed to
prove by clear and convincing evidence any violation of
the following the Rules of Professional Conduct:
3.3(a)1-4; 5.5(a)l-2; 7.1(a)1-4; ~=—-7.4(a)(b)(c)(d);_ and
effective Nov. 1, 2002 7.4(a)(b)(c)(d).
The bases for the Boards finding of violation of
the Rules of Professional Conduct are as follows:
VSB Docket No. 64-052-0794
(a) The Respondent violated Rule 1.2(a) (Scope
of Representation) in that his authorization to act on
behalf of his client SSA was limited, but he nonetheless
acted without written authorization from his client.
Furthermore, after he had been discharged by SSA, he
wrote the Department of State claiming to be the
managing attorney of SSA, which was not the case. He
also made a FOIA request without any authorization.
(b) The Respondent violated Rule 1.5(a) 1-8
(Fees) with his claim of a fee of 4.5 million dollars.
Respondent acknowledged that the fee arrangement
was a contingent fee arrangement and no recovery had
been made. Therefore, there was no basis to claim a fee.
A-26
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Furthermore, the amount of the fee, $4.5 million, does
not appear to have any reasonable relationship to work
actually performed which is necessary for a recovery on
a quantum merit basis. Respondent testified that he
determined the amount based upon what the salary
would be for a legal representative for a U.S. company
operating in a foreign country.
© The Respondent violated Rule 1.16 (a)(3)
(‘Declining or Terminating Representation) by
representing that he was SSA’s managing attorney in
a FOIA request (VSB Ex. 23), which he made well after
SSA had terminated their relationship.
(dq) The Respondent violated Rule 3.4(I)
(Fairness to Opposing Party and Counsel) by tiling the
litigation in the United States District Court for the
Eastern District of Virginia and the Circuit Court of
Fairfax County, Virginia. It should appear to any
reasonably competent lawyer that the courts did not
have jurisdiction over the parties named as defendants.
Even giving the Respondent the benefit of the doubt as
to the first suit, he received a ruling that the court
lacked personal jurisdiction over the defendants which
was upheld on appeal. He nonetheless filed a second
suit with the same infirmity seeking the same recovery.
Furthermore, his suit in the Circuit Court of Fairfax
County, Virginia, included as a defendant Harrison
Pledger and his law firm, merely because Mr. Pledger
had acted as defense counsel in the two suits in the
federal court
(e) The Respondent violated Rule 7.1(a) 1-5
(Communication Concerning a Lawyer's Services) by
misrepresentation on his website and resume. VSB
Exhibits 24 and 25 show that Mr. Rodriguez, on the
website he created, misrepresented his relationship
A-27
with SSA. He misrepresented what he did for SSA and
how he became employed by SSA. He misrepresented
his education by listing an LLM civil law degree from
the University of Bordeaux. He improperly claimed a
certification (the American Trial Lawyer Ultimate Trial
Lawyer Certification) where no such certification
exists.
(f) The Respondent violated Rule 8.4(b) and 8.4©
(Misconduct) by representing in his FOIA request that
he was the managing attorney for SSA, when the
evidence shows that he clearly was not.
VSB Docket No. 04-052-1044
(a) The Respondent violated Rule 1.7(b) 1-2
(Conflict of interest) in his attempt to represent his son
in the District Court for the District of Columbia and
his continued actions to do so even in the face of a court
ruling that there was a conflict.
(b) The Respondent violated Rule 3.1
(Meritorious Claims and Contentions) by his litigation
in the District Court for the District of Columbia and
his actions in the Circuit Court of Fairfax County,
Virginia. The complaint filed by the Respondent with
all the parties he named as defendants standing alone
shows that the Respondent has violated this Rule. The
numerous pleadings filed thereafter further
demonstrate that the Respondent’s aim was to punish
anyone who had any connection with the litigation filed
by his former wifé to regain custody of their son. Any
attorney who had in any way appeared in that
litigation ended up being named as a defendant.
NCMEC and several of its staff were named as
defendants resulting in a legal cost to NCMEC alone of
$160,090.00 Attorney Patrick Stiehm who had taken
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Respondent’s ex-wife’s case pro bono was named as a
defendant thereby making good on Respondent’s claim
that Stiehm’s representation would cost him a “big
chunk of change.”
Furthermore, in litigation in Fairfax County,
Respondent subpoenaed two members of NCMEC as
witnesses for a hearing involving his efforts to file a
Statement of the Case for an appeal, when these two
staff members had nothing to do with the Fairfax
litigation. While the subpoenas were quashed they
nevertheless had the effect of harassing the NCMEC
staff members. Remarkably this is the only instance in
which the Respondent was sanctioned by a court.
Perhaps if he had been sanctioned earlier, either
by the United States District Court for the Eastern
District of Virginia or the District Court for the District
of Columbia, such action would have put a stop to
Respondent’s unwarranted and vexatious conduct.
Unfortunately neither of the courts saw fit to impose
sanctions.
(c) The Respondent violated Rule 3.4(d)(h(i)@)
(Fairness to Opposing Party and Counsel) by the
following conduct: (1) by continuing to attempt to
represent his son in the District of Columbia litigation
in the face of a court ruling, in violation of Rule 3.4(d);
(2) by threatening the NCMEC attorney with a bar
complaint and filing a criminal complaint with the FBI,
in violation of 3.4(h); (3) by filing a motion for sanctions
against Patrick Stiehm and naming Stichm as a
defendant in the District of Columbia litigation and by
his entire course of conduct in the District of Columbia
litigation, in violation of Rule 3.4(i)Q);
(d) The Respondent violated Rule 3.7(a) 1-3
(Lawyer as Witness) by acting as an advocate when he
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was a necessary witness in the Eastern District of
Virginia litigation.
(e) The Respondent violated Rule 4.4 (Respect
for the Rights of Third Persons) by the whole course of
litigation in the District Court for the District of
Columbia. In addition, his subpoena of Ms. Brinkerhoff
and Mr. Dennis to the Fairfax Circuit Court for a
bearing on the Statement of Facts to be submitted for
appeal further demonstrates a violation of this Rule.
(f) The Respondent violated Rule 8.4(b) and 8.4(
c ) (Misconduct) in asserting a RICO claim and by his
letter to the FBI.
Thereafter, the Board received further evidence
of aggravation and mitigation from the Bar and the
Respondent, including the Respondent’s prior
disciplinary record. The Board recessed to deliberate
what sanction to impose upon its findings of
misconduct by the Respondent. After due deliberation
the Board recorvvened to awnounce the sanction
imposed. The Chair announced the sanction as
REVOCATION.
The Board in reaching its decision of revocation
recognized that the violation of certain of the Rules
such as Rule 1.5(a), 7.1, and 8.4(b) & (c ) standing
alone may not merit the ultimate sanction of
revocation. However, the Respondent’s conduct by
pursuing litigation in Virginia in Docket No.
04-052-0794 and in the District of Columbia in Docket
No. 04-052-1044 is conduct that cannot be tolerated.
While a court through sanctions can protect itself from
such conduct by a deceitful and unprincipled attorney,
the public must look to the VSB for protection. The
other violations demonstrate Respondent’s complete
disregard for the Rules of Professional Conduct.
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Furthermore the Respondent was defiant to any
criticism of his conduct in pursuing what can only be
described as meritless and vexatious litigation. This
same defiance was evident to the Board as the
Respondent sought to justify his conduct. Therefore the
Board concluded that the sanction of revocation was the
only remedy by which the public and bar could be
adequately protected.
Accordingly, it is ORDERED that the
Respondent’s license to practice law in_ the
Commonwealth of Virginia is revoked, effective October
27, 2006.
It is further ORDERED that the Respondent
must comply with the requirements of Part Six, § IV, 4
13(M) of the Rules of the Supreme Court of Virginia.
The Respondent shall forthwith give notice by certified
mail, return receipt requested, of the revocation of his
license to practice law in the Commonwealth of
Virginia, to all clients for whom he is currently
handling matters and to all opposing attorneys and
presiding judges in pending litigation. The Respondent
shall also make appropriate arrangements for the
disposition of matters then in his care in conformity
with the wishes of his client The Respondent shall give
such notice within 14 days of the effective date of the
revocation, and make such arrangements as are
required herein within 45 days of the effective date of
the revocation. The Respondent shall also furnish proof
to the Bar within 60 days of the effective day of the
revocation that such notices have been timely given
and such arrangements made for the disposition of
matters.
It is further ORDERED that ifthe Respondent is
not handling any client matters on the effective date of
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October 27,2006, he shall submit an affidavit to that
effect to the Clerk of the Disciplinary System at the
Virginia State Bar. All :ssues concerning the adequacy
of the notice and arrangements required by Paragraph
13 (M) shall be determined by the Virginia State Bar
Disciplinary Board, unless the Respondent makes a
timely request for hearing before a three-judge court.
It is further ORDERED that pursuant to Part
Six, § IV, | 13,B.&<:. of the Rules of the Supreme Court
of Virginia, the Clerk of the Disciplinary System shall
assess all costs against the Respondent.
It is further ORDERED that the Clerk of the
Disciplinary System shall mail an attested copy of this
order to the Respondent at his address of record with
the Virginia State Bar, being 7924 Peyton Forest Trail,
Annandale, VA 22003-1560, by certified mail, return
receipt requested, and by regular mail to Noel 0.
Sengel, Bar Counsel, Virginia State Bar, Suite 310, 100
North Pitt Street, Alexandria, Virginia, 22314-3133.
ENTERED this 28th day of November, 2006
VIRGINIA STATE BAR DISCIPLINARY BOARD
By: /S/
James Leroy Banks., Jr. 1" Vice Chair
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.