Case of the Day: In re Kivisto

The case of the day is In re Kivisto (11th Cir. 2013). Jussi Kivisto, a Florida lawyer, was disbarred in 2010 for various misconduct. He sued the lawyer who had filed a disciplinary complaint against him, Susan Robbins, and Michael Soifer, the Florida bar counsel, for violations of his civil rights and of the RICO Act, claiming they had conspired to make false statements to the Supreme Court of Florida during the bar investigation. The district court dismissed the claim for failure to state a claim on which relief could be granted, and the Eleventh Circuit affirmed. Kivisto filed a second, similar complaint, which the district court dismissed on grounds of res judicata; the Eleventh Circuit again affirmed. The Florida courts evidently had had enough of Kivisto—in 2011 the Florida Supreme Court entered an order essentially labeling him a vexatious litigant on account of his numerous “repetitive and meritless filings.”

Kivisto was also a member—apparently an inactive member—of the Law Society of Upper Canada, i.e., the Ontario bar. The LSUC was notified of the Florida disciplinary action and requested information from Kivisto about the disbarment and his intention to practice law in Ontario again. The LSUC also sent a document that explained its investigative processes, but apparently it had not begun proceedings against Kivisto.

Kivisto sought judicial assistance under § 1782, and in particular sought leave to serve a subpoena on Soifer. The district court denied the application, and Kivisto appealed. On appeal, the court affirmed. It held that the lower court was within its discretion because Kivisto failed to show that the discovery he sought would be “useful to or accepted by” the Law Society, because there was no indication that the Law Society “had commenced or intended to commence” a disciplinary proceeding, and because there was no evidence that the Law Society required assistance from the US courts in determining Kivisto’s fitness to practice law in Ontario.

I think the decision is defensible, but it would have been better to say that Kivisto had failed to show that there was a “proceeding” in contemplation in Ontario. In other words, it would have been better to hold that Kivisto had failed to show that the necessary prerequisites for application of the statute existed. The focus on the discretionary Intel factors seems to me to put too heavy of a burden on Kivisto in light of the general trends in the § 1782 decisions. That’s not to say that the judge’s weighing of the factors was an abuse of discretion, but rather just that since there was an apparently easy way to hold that Kivisto’s application must fail, it would have been better not to suggest, as the Eleventh Circuit has in this non-precedential decision, that the burden in justifying a request for assistance, at least at the ex parte application stage of the proceedings, is very high. I chalk this one up to the courts’ understandable reluctance to allow someone they have found to be a vexatious litigant to have a third or fourth bite at the apple.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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