Young v. City of Providence Ex Rel. Napolitano ( 2005 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 04-1334
    No. 04-1360
    LEISA YOUNG, individually and in her capacity as
    Administratrix of the Estate of Cornel Young,
    Plaintiff,
    BARRY C. SCHECK; NICHOLAS BRUSTIN; ROBERT B. MANN,
    Respondents, Appellants,
    v.
    CITY OF PROVIDENCE, by and through its Treasurer, Stephen
    Napolitano; URBANO PRIGNANO, JR., individually and in his
    official capacity as Providence Chief of Police; RICHARD
    SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,
    individually; MICHAEL SOLITRO, individually; CARLOS SARAIVA,
    individually,
    Defendants, Appellees.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Mary M. Lisi, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Lynch and Lipez, Circuit Judges.
    Stephen M. Prignano with whom Edwards & Angell, LLP was on
    consolidated brief for appellants Barry C. Scheck and Nick Brustin.
    Lynette Labinger with whom Roney & Labinger was on
    consolidated brief for appellant Robert B. Mann.
    Jametta Alston, President, Rhode Island Bar Association,
    Lauren E. Jones and Jones Associates on brief for Rhode Island Bar
    Association, Amicus Curiae.
    Amy R. Tabor and Hardy Tabor & Chudacoff on brief for Rhode
    Island Chapter, American Civil Liberties Union, Amicus Curiae.
    Theodore M. Shaw, Director-Counsel, Norman J. Chachkin and
    Miriam Gohara, NAACP Legal Defense & Educational Fund, Inc., on
    motion for leave to file brief and brief of NAACP Legal Defense &
    Educational Fund, Inc., Amicus Curiae.
    April 11, 2005
    BOUDIN, Chief Judge.       In the course of a civil rights
    action, the district court determined that three attorneys for the
    plaintiff had violated Rule 11 of the Federal Rules of Civil
    Procedure.      The court revoked the pro hac vice status of the two
    attorneys who were not members of the court's bar and formally
    censured one of the two.      Young v. City of Providence, 
    301 F. Supp. 2d 187
     (D.R.I. 2004).      In this decision, we address appeals by all
    three attorneys; the merits of the civil rights action are the
    subject   of    the   plaintiff’s    separate      appeal    resolved     in    our
    companion      decision   issued    today    sub   nom.     Young   v.   City   of
    Providence.
    The civil rights action grew out of a tragedy that
    occurred in January 2000 in Providence, Rhode Island.                Two police
    officers (Michael Solitro and Carlos Saraiva), responding to the
    scene of a nighttime disturbance at a restaurant, shot and killed
    an off-duty officer-–Cornel Young, Jr., who, with his weapon drawn,
    was attempting to assist them.              In June 2001, Young’s mother,
    acting on her own behalf and as executor of Young's estate, brought
    a civil rights action in district court asserting claims under
    section 1983, 
    42 U.S.C. § 1983
     (2000), and under state law, against
    the city, various officials and the two officers.
    The case, assigned to Judge Mary Lisi, was a complex one.
    This was due in part to the difficulty in reconstructing exactly
    what had happened in the nighttime encounter, in part to the
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    different tiers of liability asserted against various defendants
    (direct, supervisory and municipal) and in part to plaintiff's aim
    to show a pattern or policy of incompetent hiring and inadequate
    training.    Both Barry Scheck and Nicholas Brustin of the New York
    firm of Cochran, Neufeld & Scheck LLP were admitted pro hac vice to
    represent the plaintiff; Robert Mann of the Providence firm of Mann
    & Mitchell acted as local counsel. Scheck was admitted, to replace
    his partner Johnnie Cochran, Jr., only in September 2003--shortly
    before a “phase I” trial was to begin focusing on the conduct of
    Solitro and Saraiva.
    The litigation was the subject of extensive publicity;
    among other facets, the officers who fired the shots were white
    while Cornel Young was black (and the son of a senior Providence
    police officer).         Scheck, who acted as lead counsel after his
    admission,    was   at   odds   with    the   district    judge   over   various
    matters, including the division of the trial into two phases.                Yet
    the incident that gave rise to the Rule 11 findings, censure and
    revocation of pro hac vice status was narrowly focused and arose
    against the following background.
    By   September     2003,     extensive      discovery   had    been
    conducted.    One of the issues in the discovery, and in the ensuing
    trial, concerned the precise movements of Cornel Young and of
    Solitro.     The former had been inside the restaurant; Solitro and
    Saraiva had approached the building through the parking lot to find
    -4-
    a man (later identified as Aldrin Diaz, who had caused an earlier
    disturbance) pointing a gun out of the window of a Chevrolet Camaro
    parked in the lot in front of the restaurant.       Solitro broke cover
    and started toward the car.     Young, moving to assist, emerged from
    the restaurant with his own weapon drawn and was shot by Solitro
    and Saraiva.     Just where Young and Solitro had stood and moved had
    a bearing on who was at fault in the episode.
    During discovery, Solitro had drawn a line indicating his
    own movement in relation to other physical landmarks including the
    Camaro; the line was drawn on a clear overlay laid atop a made-to-
    scale diagram prepared by the state attorney general in his own
    investigation.     Scheck planned to rely importantly on the diagram
    in his opening to explain to the jury the defense version of what
    had happened.     However, in September 2003, out-takes filmed by a
    local TV station on the night of the shooting became available and,
    from   defense   counsel's   viewpoint,   raised   questions   about   the
    accuracy of the diagram–-at least as to the location of the Camaro.
    Until then it had apparently been expected that both sides would
    agree to the admission of the diagram.
    At the final pre-trial conference on September 19, 2003,
    the district court was told briefly that there was a dispute about
    the diagram.     Defense counsel later recalled advising Brustin on
    September 25 or 26 of the specific discrepancy but Scheck later
    said that he did not fully understand the problem until October 7,
    -5-
    2003, when the jury was being selected.    Defense counsel then told
    the district judge that the defense objected to the diagram as
    inconsistent with photographs made from the out-takes, and the
    judge responded that the parties should confer to see whether they
    could stipulate as to the matter.      The judge told plaintiff's
    counsel: "If you can't agree to a stipulation on that, then I'm
    going to have to tell you to stay away from it because you're going
    to need testimony to explain it to the jury."
    Scheck then offered as a compromise to stipulate that the
    diagram conflicted with photographs made from the film out-takes,
    but the next morning defense counsel declined the offer.     Scheck
    again sought unsuccessfully to persuade the judge that he ought to
    be allowed to refer to the diagram in the opening.    Then, with the
    opening statements about to begin, Scheck signed a stipulation
    drafted by defense counsel that the diagram was inaccurate as to
    the location of the Camaro and that the actual alignment of the car
    was as described in the stipulation.      On this basis, Scheck was
    allowed to use the diagram in the opening, but he was not allowed
    thereafter to elicit testimony contradicting the stipulation.
    Over the next several days of trial, further examination
    of the photographs persuaded Scheck and his colleagues that the
    out-takes did not contradict the diagram.      A young associate at
    Scheck's firm was told to draft a memorandum to support a motion
    seeking relief from the stipulation on grounds of mistake.       The
    -6-
    memorandum was filed with the court on October 16, 2003 in mid-
    trial, after being reviewed and then signed by all three counsel–-
    Scheck, Brustin and Mann.1   That same morning the judge directed
    counsel to re-read the memorandum, saying that she was disturbed by
    representations made in the memorandum, "particularly as they
    relate to the actions of the court."
    The memorandum, set forth in full at 
    301 F. Supp. 2d at 199-204
    , started with an introductory paragraph that conflated the
    earlier events by saying that counsel had believed prior to trial
    that the diagram could be used at trial and then continued:
    It was only on the eve of opening statements,
    once plaintiff had prepared her entire opening
    based on that stipulation, that defendants
    first said they would not stipulate to Exhibit
    18, based on two new photographs they had
    found, Exhibits X and Y. Plaintiff, moments
    before her opening, was informed by the Court
    she had to agree to defendants’ stipulation.
    Plaintiff was genuinely confused about the
    import of photographs X and Y.     Plaintiff's
    opening relied critically on using that
    exhibit to explain events to the jury.      In
    this state of confusion and uncertainty,
    plaintiff felt little choice but to accept any
    stipulation defendant provided.
    
    Id. at 200
    .
    Thereafter, the memorandum provided a much more detailed
    recitation of events, together with legal arguments to justify
    relief from the stipulation entered into in such circumstances.
    1
    A further version, correcting typographical errors, was filed
    later that day. The differences between the two versions are not
    material to these appeals.
    -7-
    Later, the memorandum blamed defense counsel for rejecting Scheck's
    October   7     compromise    stipulation,          adding    that   "[u]nder   the
    circumstances, plaintiff had no choice but to sign a stipulation
    without any chance to review the photographs at issue.”                     
    Id. at 208
    . It there quoted a well known treatise that "'courts will look
    at the facts carefully to see that one litigant has not been
    coerced into the stipulation.'"           
    Id.
     at 208 n.5 (quoting 22 Wright
    & Graham, Federal Practice and Procedure § 5194 (1978)).
    After filing the motion and then hearing the judge's
    statement      that   she    was     disturbed       by     its   representations,
    plaintiff's counsel returned to their office after the trial ended
    for the day and, assertedly unable to determine what had so
    troubled the judge, prepared a letter of general apology, which was
    immediately delivered to court. It apologized for any misstatement
    and said that "we do not seek to shift responsibility to the Court
    [for   the     stipulation],       and   if    we    have    created   a   contrary
    impression, we are sorry."               It did not withdraw any specific
    statement; plaintiff's counsel's position is that at that time they
    did not fully appreciate what had so concerned the district judge.
    The following morning, during argument on the motion for
    relief from the stipulation, the judge made clear her view that
    "the reference [in the memorandum] to the Court instructing you
    that you had to stipulate is, again, a misrepresentation."                   Scheck
    now sought to explain that he had been misunderstood, but the judge
    -8-
    denied the motion for relief from the stipulation.     Later that day
    the court called counsel before it and ruled that, based on the
    memorandum's misrepresentation, the pro hac vice admissions of
    Scheck and Brustin were revoked.      Mann was directed to proceed to
    represent plaintiff at the trial.        The trial proceeded to its
    completion and to a final judgment on February 12, 2004.
    After the trial but before final judgment was entered,
    the district court on November 7, 2003, issued a show cause order
    to the three plaintiff's counsel.      The order said that all three
    counsel had violated Rule 11(b)(3)2 and directed the parties to
    show cause why sanctions should not be imposed.      Counsel filed a
    memorandum and affidavits arguing that they had had no deceptive
    intent and that, read as a whole and in context, their memorandum
    asking to withdraw the stipulation had not misrepresented any
    facts.    The Rhode Island Bar Association filed an amicus brief in
    support of the lawyers; the ACLU also sought unsuccessfully to do
    so.
    On December 15, 2003, the district court held hearings on
    the show cause order, first agreeing to modify the show cause order
    to say only that it "appears" that plaintiff's counsel had violated
    2
    This provision requires that in every pleading, or motion or
    other filing counsel's signature is a representation that "the
    allegations and other factual contentions have evidentiary support
    or, if specifically so identified, are likely to have evidentiary
    support after a reasonable opportunity for further investigation or
    discovery.”
    -9-
    Rule 11.   On February 11, 2004, the court issued an order finding
    that all three counsel had violated Rule 11.             In describing the
    background,    the   February   11   order   pointed     out   that   defense
    counsel's version of events suggested that plaintiff's counsel had
    enjoyed more detailed and specific warnings that the defense
    disputed the accuracy of the diagram than had previously been
    advertised.    However, the judge did not resolve any disputes on
    this score or rely upon such omissions in finding the Rule 11
    violations.
    Rather, the Rule 11 findings focused solely upon two
    specific "misrepresentations" in the memorandum: one was the above
    block-quoted     language   including        the   key     statement     that
    "[p]laintiff, moments before her opening, was informed by the Court
    she had to agree to defendants' stipulation."            
    301 F. Supp. 2d at 200
    .   The other was the statement that defense counsel "had no
    choice" but to sign the stipulation without any chance to review
    the photographs.     
    Id. at 208
    .      Both statements, said the court,
    falsely indicated that the court had ordered the stipulation to be
    signed; and, the court noted, the memorandum's references to
    injustice and coercion gave the impression that the court was
    responsible for such wrongs.
    The court accepted that the memorandum had been drafted
    by a young associate and that plaintiff's counsel had denied
    instructing the younger lawyer to say that the court had directed
    -10-
    the stipulation.         However, the court said that plaintiff's counsel
    were responsible under Rule 11 for statements made in a memorandum
    that       they   had        reviewed   and    signed.      Assessing    relative
    responsibility, the court sanctioned Scheck by imposing "a public
    censure," 
    301 F. Supp. 2d at 198
    ; Brustin, an associate whom the
    court said took direction from Scheck, was merely "admonished" to
    be more careful, id.; and as to Mann, whose role was ascribed to
    "inattention," 
    id. at 199
    , the court said that his reputation in
    Rhode Island for integrity was well established and a sanction was
    unnecessary to deter repetition.
    All three of plaintiff's counsel have appealed from the
    order determining that they committed Rule 11 violations, and
    Scheck and Brustin have asked that their censure and admonition be
    overturned and their pro hac vice status restored.                  In our view,
    the Rule 11 findings are appealable, being distinguishable from
    mere criticism, and, so too, the censure and admonition.3                  Nor is
    the request for reinstatement of pro hac vice status moot since the
    merits      appeal      in    the   civil     rights   action   keeps   alive   the
    possibility of further district court proceedings.                 We turn, then,
    3
    Compare In re Williams, 
    156 F.3d 86
    , 92 (1st Cir. 1998)
    (holding that "a jurist's derogatory comments about a lawyer's
    conduct, without more, do not constitute a[n appealable]
    sanction"), with Precision Specialty Metals, Inc. v. United States,
    
    315 F.3d 1346
    , 1351-52 (Fed. Cir. 2003) (distinguishing Williams
    where court found that attorney had violated Rule 11), and United
    States v. Talao, 
    222 F.3d 1133
    , 1137-38 (9th Cir. 2000)
    (distinguishing Williams where court found that attorney had
    violated ethical rule).
    -11-
    to the central issue-–underlying all of the requests for relief–-
    whether the Rule 11 findings were justified.
    The standard that applies on review of Rule 11 orders was
    established by the Supreme Court in 1990 and only recently glossed
    in our decision in Obert v. Republic W. Ins. Co., 
    398 F.3d 138
     (1st
    Cir. 2005).     Formally, it is "abuse of discretion" as to either
    violation or sanction; but both a mistake of law and a clearly
    erroneous finding of fact constitute such an abuse.           Cooter & Gell
    v. Hartmarx Corp., 
    496 U.S. 384
    , 402 (1990).         In this case, defense
    counsel make two principal arguments as to the Rule 11 findings:
    one relates to the substantive legal standard to be applied under
    Rule 11 where the court initiates the inquiry into a possible
    violation; the other is whether, under the proper standard, the
    objected-to statements violated Rule 11. We consider the issues in
    this order.
    Rule 11(b) is not a strict liability provision. It
    prohibits filings made with "any improper purpose," the offering of
    "frivolous" arguments, and the assertion of factual allegations
    without "evidentiary support" or the "likely" prospect of such
    support.     A lawyer who makes an inaccurate factual representation
    must,   at   the   very   least,   be   culpably   careless   to    commit   a
    violation.      See Fed. R. Civ. P. 11(b) (requiring that factual
    contentions have evidentiary support only "to the best of the
    person's     knowledge,   information,     and   belief,   formed   after    an
    -12-
    inquiry    reasonable       under    the    circumstances").            The    question
    presented    by    plaintiff's      counsel's        first   argument     is   whether
    something more than falsity and serious carelessness is required;
    counsel contend that where the court itself initiates the Rule 11
    inquiry, the conduct must involve "situations that are akin to a
    contempt    of    court."      The    phrase        is   taken   from    an    Advisory
    Committee's Note, to which we will return.
    This distinction urged by plaintiff's counsel is at odds
    with the plain language of Rule 11.                 Rule 11(b), creating duties,
    sets out the substantive obligations of counsel (e.g., that factual
    claims must have evidentiary support or a likely prospect of it)
    without in any way suggesting that the substantive obligations
    differ depending on whether a later claim of violation is raised by
    opposing counsel or the court.             Nor is it obvious why anyone would
    wish such duties governing “primary conduct” to depend on who might
    thereafter       raise   objections        in   a   remedial     proceeding.        Cf.
    Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 
    628 F.2d 652
    ,
    669 (1st Cir. 1980).
    Rule 11(c), addressing sanctions, does distinguish between
    the procedures that apply depending on whether opposing counsel or
    the court initiates the charge.                 In the former case, there is a
    safe harbor opportunity to withdraw the objected-to statement
    within 21 days and thereby avoid sanctions; in the latter there is
    not.   But the object of the safe harbor is to allow a party to
    -13-
    privately withdraw a questionable contention without fear that the
    withdrawal will be viewed by the court as an admission of a Rule 11
    violation.        Advisory Committee's Note to Fed. R. Civ. P. 11(b) and
    (c).        Nothing in the language of Rule 11(c) says that, if the court
    initiates the inquiry, something more than a Rule 11(b) breach of
    duty is required.
    The only hint of such a distinction as to the substantive
    standard appears in the Advisory Committee's Note, which explains
    the absence of a safe harbor for court-initiated inquiries as
    follows: "Since show cause orders will ordinarily be issued only in
    situations that are akin to a contempt of court, the rule does not
    provide a [comparable] 'safe harbor' [to withdraw the objected to
    statement]."         This language has, indeed, been taken by several
    circuits as suggesting that only egregious conduct can be reached
    where the court begins the inquiry,4 but we think mistaken any
    inference that this language requires malign subjective intent.
    It is true that courts ought not invoke Rule 11 for
    slight cause; the wheels of justice would grind to a halt if
    lawyers everywhere were sanctioned every time they made unfounded
    objections, weak arguments, and dubious factual claims.           Obert,
    
    2005 WL 388302
    , at *7.        However, this is an argument for requiring
    4
    See Kaplan v. DaimlerChrysler, A.G., 
    331 F.3d 1251
    , 1255-56
    th
    (11 Cir. 2003); In re Pennie & Edmunds LLP, 
    323 F.3d 86
    , 90-93 (2d
    Cir. 2003); Hunter v. Earthgrains Co. Bakery, 
    281 F.3d 144
    , 151,
    153 (4th Cir. 2002); United Nat'l Ins. Co. v. R & D Latex Corp., 
    242 F.3d 1102
    , 1115, 1118 (9th Cir. 2001).
    -14-
    serious    misconduct,    whoever    initiated      the   inquiry    into   a
    violation–-not for distinguishing between the judge and opposing
    counsel.     The "akin to contempt" language used by the Advisory
    Committee's Note may well have meant only that no safe harbor was
    needed because judges would act only in the face of serious
    misconduct.
    A specific purpose of the 1993 revision of Rule 11 was to
    reject such a bad faith requirement. See Advisory Committee's Note
    saying that the amendments were “intended to eliminate any 'empty-
    head pure-heart' justification for patently frivolous arguments.”
    Since then only one circuit court has read the present rule to
    require bad faith, In re Pennie & Edmunds LLP, 
    323 F.3d 86
    , 90-93
    (2d Cir. 2003), and it did so in the teeth of a strong dissent, 
    id. at 93-102
    .    True, judges must be especially careful where they are
    both prosecutor and judge; but careful appellate review is the
    answer to     this   concern,   whether    the   charge   is   negligence   or
    deliberate dishonesty and whether it is contempt or a Rule 11
    violation. If anything, opposing counsel has far greater incentive
    than the trial judge to invoke Rule 11 for slight cause.
    We come, then, to the question whether the two objected-
    to statements in the memorandum were false and, if so, sufficiently
    careless to warrant sanction. The trial judge read both statements
    to suggest that the court had forced plaintiff's counsel to sign
    the stipulation.      In our view, read as a whole, the memorandum
    -15-
    makes it clear that the judge did not require that the stipulation
    be signed but only said that a stipulation was a condition to use
    of the diagram in Scheck's opening statement--which is entirely
    accurate.     There is some warrant for criticism of the memorandum
    but the central charge of falsity on which the Rule 11 findings
    rest cannot be sustained, so the issue of carelessness disappears.
    The   first   paragraph    of    the   memorandum   (block-quoted
    above) did say that plaintiff was informed at the opening that "she
    had to agree to defendants' stipulation," omitting to add the
    phrase "in order to use the diagram in the opening argument."                But
    the memorandum soon makes it explicitly clear that the judge
    required the stipulation only in the sense that it was a condition
    of using the diagram in the opening.               Describing the events of
    October 8 after defense counsel rejected Scheck's stipulation, the
    memorandum states:    "The Court instructed plaintiff again that the
    exhibit could be only used under stipulation."
    As for the second quotation objected to by the judge--the
    statement that "plaintiff had no choice but to sign a stipulation"
    --the memorandum did not assert that the judge had directed Scheck
    to sign; indeed, the statement followed immediately after the
    memorandum’s statement that defendants had rejected the Scheck
    stipulation    "minutes    before     the    opening"   (in   which,    as   the
    memorandum had already explained, the diagram was crucial to
    Scheck's    planned   presentation).           “Forced”   refers   to    these
    -16-
    circumstances and not to any directive from the judge that Scheck
    sign the stipulation.
    The main problem in this memorandum is that in the
    introductory summary the drafter took as an unexplained premise
    what the lawyers and the judge full well knew:       that the judge had
    made clear,   before   the   fatal   stipulation   was   signed,   that   a
    disputed document could not be used in the opening argument absent
    a stipulation.   Yet, as we have just seen, even this premise is
    made explicit later in the memorandum.       The general rule is that
    statements must be taken in context, United States v. Moran, 
    393 F.3d 1
    , 16 (1st Cir. 2004), and that related parts of a document
    must be taken together, Nadherny v. Roseland Property Co., 
    390 F.3d 44
    , 49 (1st Cir. 2004).      That a hasty reader might take the first
    paragraph out of context is not in the present circumstances enough
    to brand the memorandum as false.
    We are not suggesting that a deliberate lie would be
    immune to sanction merely because corrective language can be found
    buried somewhere else in the document.       But here the trial judge
    did not find, and in these circumstances could not have found, that
    defense counsel had intended to deceive.           The memorandum was
    drafted under pressure, by a younger lawyer not admitted as counsel
    in the case; and it was reviewed and signed by Mann, whose
    established reputation and integrity the opinion praises, and by
    Brustin, whose trial conduct is also approved of by the judge in
    -17-
    her decision.      Nor, of course, can anyone suppose that the judge
    would have been misled as to what she herself had earlier directed.
    As it happens, the memorandum may otherwise have been
    misleading or inaccurate in certain of its detail.             If one accepts
    the account of defense counsel at the show cause hearing, the
    memorandum left out both the fact of prior warnings from defense
    counsel that they were concerned about the diagram and the fact
    that the photographs themselves were furnished to Brustin on
    September 25 or 26.         By omitting such detail, the memorandum
    enhances the “surprise” element tincturing the memorandum’s gloss
    on the events of October 7 and 8 ("for the first time," "last
    minute choice").        Further, assuming that the photographs were
    provided on September 25 or 26, the memorandum’s statement that the
    stipulation      was   signed   "without   any   chance    to    review    the
    photographs at issue" is doubtful; perhaps Scheck meant only that
    he had not focused on the issue but it would have been better to
    say that.
    However, the district court made no definitive findings
    as to what warnings were given and when.         The basis for the Rule 11
    charges   was    the   suggestion   that   the   judge   had    required   the
    stipulation.     We also do not know how far defense counsel had gone,
    prior to receiving the out-takes, in leading plaintiff's counsel to
    believe that the diagram was common ground.           Nor can we tell how
    far Scheck was involved in trial preparations before his last-
    -18-
    minute pro hac vice appearance.             The final period before a large
    trial, like the trial itself, involves late nights, multiplying
    tasks and resulting confusions that are hard to imagine for one who
    has not experienced them.               The burden upon the trial judge is
    scarcely less.
    The district judge is well known for both patience and
    care.     It is easy to imagine why, in the course of a tense and
    contentious trial, she was greatly displeased at a document,
    emblazoned with references to injustice, that could be publicly
    read    as   blaming      the   trial   judge     for   what    had   patently   been
    plaintiff's counsel's own miscalculation.                 But on a close reading
    and a consideration of all the circumstances, the memorandum taken
    as a whole did no more than say, albeit inartfully, that the trial
    judge had required the stipulation to be signed as a condition of
    using the diagram in the opening.
    Accordingly,        the   findings    that       plaintiff's   counsel
    violated Rule 11 cannot stand; and, as those findings are the only
    grounds for the censure, admonition and revocation of pro hac vice
    status,      they   too    must   be    undone.     The    findings     of   Rule   11
    violations are set aside, the sanction and admonition are vacated,
    and the pro hac vice status of Scheck and Brustin is restored.                      No
    costs.
    It is so ordered.
    -19-