The attorney who represented a controversial Republican member of Congress in a number of defamation lawsuits now faces a legal roadblock uncommon for pro hac vice admissions in the District of Delaware.
Virginia attorney Steven Biss’ ability to practice in the Delaware court has been questioned by Rhode Island attorney Michael Farley, a pro se defendant in a case filed last year by a man seeking $25 million in damages for alleged defamation, false light invasion of privacy and civil conspiracy. Farley made the allegations in an opposition to a motion to admit Biss and a motion to disqualify.
Biss is known for having represented U.S. Rep. Devin Nunes, R-California, in a number of suits where Nunes said he was defamed in stories published in late 2019 connecting him to a bid to push Ukrainian officials to investigate Joe Biden.
Farley argues Biss’ history of sanctions and reprimands in other jurisdictions gives the court the right to turn down a pro hac vice motion filed at the end of February. He noted in his motion to disqualify there isn’t sufficient case law in the District of Delaware to rigidly define requirements for pro hac vice admission, but that the District of New Jersey’s rule on the issue is similar to Delaware’s, and that district has found a judge has the power to consider attorney civility as a factor.
Based in Newport, Rhode Island, Farley is general counsel for Tempo Marketing Corp., Tempo Servicing Corp. and Uptempo Inc. Michael C. Trimarco, the plaintiff in the Delaware case, was previously employed by and had ownership interest in a company that was ultimately sold to Uptempo, and his original complaint alleged Farley, three officers and directors of Tempo Marketing and Tempo Servicing and a former manager of another company acquired by Tempo Marketing falsely accused Trimarco of a number of crimes as part of a takeover scheme. Trimarco has since dismissed his claims against two of the three officers.
Ryan Ernst of O’Kelly & Ernst has officially represented Trimarco since the case was filed, though Farley alleges Biss has been leading the prosecution in the District of Delaware case since its filing last summer, though a motion to admit pro hac vice wasn’t filed until Feb. 25, and has violated disclosure rules throughout the course of the case.
A briefing schedule filed at the end of February listed Wednesday as the deadline for a response to Farley’s motion to disqualify Biss. As of Wednesday afternoon, no response to Farley’s objection had been filed.
Neither Biss nor Ernst responded to messages seeking comment for this story.
In his objection, Farley cited events in two cases as evidence Biss “lacks the character, trustworthiness, civility and competence to practice in the Delaware federal court.” Admitting Biss pro hac vice, Farley wrote, would give him permission “to continue to file frivolous lawsuits.”
In 2015, Farley wrote, a court found Biss had intentionally misrepresented facts in a Virginia case involving a personal liability judgment by presenting a heavily redacted document from a previous case. Biss appealed his sanctioning to the U.S. Court of Appeals for the Fourth Circuit, which sided with the lower court’s finding that Biss’ redactions were made in bad faith.
The Virginia Bar, Farley wrote in the motion to disqualify, has suspended Biss twice and reprimanded him once, with the conduct leading to that including a “lack of competence” in representing a Delaware corporation’s shareholders. His second suspension was for reportedly advertising himself as an attorney while his license was suspended for the first time. Biss was sued by Delaware corporation BandAid and found liable for fraud, and his actions as an attorney have been questioned in New York and Illinois, in addition to his home state of Virginia.
Recently, according to the motion to disqualify, a federal judge in Virginia wrote Biss had “made a fool of himself” through “juvenile bullying,” “unprofessional theatrics” and submitting motions that “border on unintelligibility.”