Law Offices of David Efron v. Matthews & Fullmer Law Firm , 782 F.3d 46 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14–1001
LAW OFFICES OF DAVID EFRON,
Appellant,
v.
MATTHEWS & FULLMER LAW FIRM; CARLOS R. IGUINA-OHARRIZ;
HATUEY A. INFANTE-CASTELLANOS,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
David Efron and Law Offices of David Efron, P.C., on brief for
appellant.
Toby B. Fullmer, Matthews & Fullmer, L.L.C., Hatuey A.
Infante-Castellanos, and Hatuey Infante Law Offices, P.S.C., on
brief for appellees.
April 1, 2015
KAYATTA, Circuit Judge. This appeal arises out of a
dispute between two law firms over how to split attorneys' fees due
them as a result of their mutual clients' recovery in the personal
injury lawsuit that gave rise to this action. The appellant, the
Law Offices of David Efron ("Efron"),1 expresses unhappiness with
the 40 percent share the district court awarded to his firm.2 In
support of Efron's request that we order the district court to
reapportion the fees in some unspecified manner, he challenges the
court's factual findings that he was not credible and that he
intended to mislead the court about his fee agreement with pro hac
vice counsel Toby Fullmer ("Fullmer"), of the law firm Matthews &
Fullmer. Efron also challenges the court's ex parte communication
with the plaintiffs in order to resolve a dispute about which
lawyer represented them. After determining that the district court
had ancillary jurisdiction over the attorneys' fees dispute, and
finding no error at all in the district court's analysis or
conduct, we affirm.
1
We use "Efron" to refer collectively to the attorney and
his law firm. The conduct of Efron the individual is primarily at
issue in this appeal.
2
The parties consented to proceed before a magistrate judge
pursuant to 28 U.S.C. § 636(c)(1). Because the magistrate judge
had authority to "conduct any or all proceedings" in the matter,
id., we refer to relevant rulings as those of "the district court,"
or simply "the court."
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I. Background
In 2008, plaintiff Orlando Alejandro-Ortiz ("Alejandro")
suffered injuries from an electrical shock as he attempted to move
a downed power line. Alejandro-Ortiz v. P.R. Elec. Power Auth.,
756 F.3d 23, 25 (1st Cir. 2014). Alejandro, along with his wife
Sonia Rodríguez-Jimenez ("Rodríguez") and their two minor children
(collectively, "plaintiffs"), retained the Texas law firm Matthews
& Fullmer to represent them in a lawsuit against Puerto Rico
Electric Power Authority ("PREPA") and its insurer. On March 30,
2010, Matthews & Fullmer entered into a "joint venture agreement"
with Efron that provided that Efron would perform local counsel
duties in exchange for 20 percent of the attorneys' fees.
Several weeks before trial in 2012, Fullmer informed
Efron that Matthews & Fullmer could not try the case. Efron
therefore tried the case and obtained a judgment for the plaintiffs
in the amounts of $2,025,000 for Alejandro, $855,000 for Rodríguez,
and $292,500 for each of the two minor children. The district
court later reduced the amount due Alejandro and the children to
$1,000,000 in light of a settlement agreement between those three
plaintiffs and PREPA's insurer. PREPA successfully appealed the
award to plaintiff Rodríguez. Alejandro-Ortiz, 756 F.3d at 30.
Meanwhile, in the wake of the judgment, the relationship
between Efron and Matthews & Fullmer deteriorated, with their
clients becoming ping-pong balls in a contest between counsel.
-3-
Matthews & Fullmer tried to fire Efron as local counsel in this
case and two others. Efron parried the move by getting the
plaintiffs to fire Matthews & Fullmer. Fullmer then convinced the
plaintiffs to undue the firing (and to fire Efron instead).
These events bounced onto the district court docket on
October 3, 2013, when appellees Carlos Iguina-Oharriz ("Iguina")
and Hatuey Infante-Castellanos ("Infante"), having been retained by
Matthews & Fullmer as new local counsel, filed a motion for leave
to appear as substitute local counsel for the plaintiffs. The next
day, Efron filed a motion to disqualify substitute local counsel
and Matthews & Fullmer, or, alternatively, for an attorney's lien
for 80 percent of the attorneys' fees. Efron's motion explained
that he "had expressed and verbally agreed, not in writing," with
Matthews & Fullmer that Efron would receive 80 percent of the
attorneys' fees "because of the additional work and responsibility
in this case[,] including trial."
In response to these dueling motions, the district court
understandably found itself unclear as to who--if anyone--
represented the plaintiffs, and whether the plaintiffs were being
protected as counsel fought with one another. The court issued the
following order:
The Court is deeply concerned about the
serious allegations being made among
Plaintiffs’ putative attorneys. . . . On the
basis of the record now before us--and
particularly given the serial, competing
revocations and grants of power of attorney--
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we are incapable of determining Plaintiffs'
true intent, and we cannot trust the claims of
any of the attorneys now purporting to
represent them. Accordingly, all of those
attorneys . . . are hereby ORDERED to
immediately cease communicating with
Plaintiffs without express, prior consent from
this Court. . . .
Given the serious charges being
leveled, Plaintiffs' important rights that
must be protected, and the risk of improper
influence being exercised upon Plaintiffs, the
Court intends to communicate, ex parte, with
Plaintiffs, in an attempt to determine if and
when they might be available to attend a
hearing. . . .
These post-judgment uncertainties posed a pressing
problem because PREPA, in response to a writ of execution issued by
the court, was prepared to pay the $1,000,000 owed to three of the
plaintiffs. Indeed, it appears that it was counsels' conflicting
desires to get their hands on this imminent payment that brought
the dispute to a head. Fullmer held out his hand by writing a
letter--which he subsequently filed with the court along with the
motion to substitute local counsel--to PREPA's counsel informing
him that Efron no longer represented the plaintiffs and that PREPA
should send the check to Infante or Iguina. Faced with the
possibility that $1,000,000 could end up with an attorney who did
not represent the plaintiffs, the district court sensibly
instructed PREPA "to deposit any funds in satisfaction of the
$1,000,000 judgment with the Court's registry, where it will be
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held in an interest-bearing account until such time as Plaintiffs'
representation is settled."
The district court next ordered Efron and Fullmer to
appear at a hearing so that, "before making any further ruling, the
Court [could] hear from the attorneys purporting to represent
Plaintiffs." The court also informed Efron and Fullmer that "[t]he
Court has personally spoken twice with Plaintiff Sonia
Rodríguez-Jimenez, and based on those conversations we do not
believe it necessary at this time to appoint a special master or to
have Plaintiffs appear before the Court."
At the hearing, the district court inquired about two
issues: the events that led to the termination of Efron as local
counsel, and the status of the fee-sharing agreement between Efron
and Matthews & Fullmer. Fullmer described the conduct that led to
his firm's decision to terminate Efron as local counsel on three
cases, including Efron's decision to file a brief in this
underlying case without allowing Fullmer to read it first. Fullmer
admitted that he attempted to negotiate a new fee-sharing
arrangement with Efron, but he denied that they ever reached an
agreement. In response, Efron speculated that Matthews & Fullmer
wanted him off the case in order to claim a larger share of the
attorneys' fees and as an effort to dodge a garnishment order
served on Efron by a judgment creditor of the Texas firm. As for
the fee division between the attorneys, Efron claimed that he would
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not have agreed to try the case for less than the "lion's share" of
the fees.
On October 23, 2013, the district court entered an order
declaring that Matthews & Fullmer would continue to represent the
plaintiffs, with Iguina and Infante serving as substitute local
counsel. Alejandro-Ortiz v. P.R. Elec. Power Auth., Civ. No.
10–1320(SCC), 2013 WL 5755358, at *7 (D.P.R. Oct. 23, 2013). The
order terminated Efron's representation and prohibited Efron from
contacting the plaintiffs. Id. The district court nonetheless
awarded Efron 40 percent of the attorneys' fees.3 Id. The court
found that Efron and Fullmer never modified the original 20-80
arrangement in the March 30, 2010, joint venture agreement, but
also found that Efron was entitled to more than 20 percent on a
quantum meruit basis for the unanticipated work he performed in
trying the case. Id. at *5-6.
Efron filed a Rule 59(e) motion asking the district court
to amend or omit certain findings in its October 23 order. Those
findings indicated that Efron made misleading statements and was
not credible with respect to aspects of his dispute with Fullmer.
While his motion was pending, Efron appealed to this court. The
district court then denied the Rule 59(e) motion, defending its
findings on Efron's credibility as both necessary and well-founded.
3
While this appeal was pending, the district court disbursed
40 percent of the attorneys' fees, or $126,093.23, to Efron's law
firm.
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II. Analysis
Efron raises three issues on appeal. First, he contests
the district court's findings with respect to his credibility and
attempts to mislead the court. Second, he claims that he is
entitled to more than 40 percent of the attorneys' fees. Third, he
complains about the district court's ex parte communication with
plaintiff Rodríguez. After determining that the district court had
jurisdiction, we address each argument in turn.
A. Ancillary Jurisdiction over the Fee Dispute
First, we must determine whether the district court
correctly concluded that it had subject matter jurisdiction to
decide what is essentially a private contract dispute between non-
parties. Although neither side raises the issue on appeal, we have
an obligation to make such a determination sua sponte. McCulloch
v. Vélez, 364 F.3d 1, 5 (1st Cir. 2004). We review issues of
jurisdiction de novo. Cooper v. Charter Comms. Entertainments I,
LLC, 760 F.3d 103, 105 (1st Cir. 2014).
At first glance, it seems like diversity could have
provided an independent basis for the district court's jurisdiction
over a sizable fee dispute between a Texas law firm and local
counsel in Puerto Rico. See 28 U.S.C. § 1332. The district court
did not assess its jurisdiction under the diversity rubric,
however, and the record on appeal provides insufficient
jurisdictional facts for this court to make a determination. Also,
-8-
the probable Puerto Rican citizenship and potential
indispensability of new local counsel Infante and Iguina, to whom
part of Matthews & Fullmer's fee would be due, cast some doubt on
the existence of diversity jurisdiction. Picciotto v. Cont'l Cas.
Co., 512 F.3d 9, 15-19 (1st Cir. 2008).
We therefore look to the possibility of jurisdiction
ancillary to the court's jurisdiction over the underlying suit.
Federal courts have often exercised authority under the doctrine of
ancillary jurisdiction to resolve fee disputes between parties and
their attorneys that arise out of the underlying litigation.
Rivera-Domenech v. Calvesbert Law Offices PSC, 402 F.3d 246, 250
(1st Cir. 2005) (per curiam) (dictum); see also Exact Software N.
Am., Inc. v. DeMoisey, 718 F.3d 535, 542 (6th Cir. 2013)
(collecting cases) ("For years, indeed since the early years of the
republic, federal courts have resolved fee disputes between lawyers
and their clients when those disputes arise out of the underlying
case . . . ."); 13 Wright & Miller, Federal Practice & Procedure
§ 3523.2 (3d ed.) ("One of the best-established uses of ancillary
jurisdiction is over proceedings concerning costs and attorneys'
fees."). One broad purpose of such jurisdiction is "to enable a
court to function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees." Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 380 (1994).
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Whether federal courts also have ancillary jurisdiction
over fee disputes between attorneys who represented the same
client, especially when the client was not a party to the lawyers'
fee-sharing agreement, is less clear. In one important respect, a
dispute between counsel who claim collectively more than the total
amount of fees owed by the client is much like a dispute between
the lawyers and the client because, until it is resolved, the
presence of competing and inconsistent attorneys' liens may hinder
the client's receipt of the amount due the client. Even without
consideration of this possible impact on the client, other circuits
have found ancillary jurisdiction over disputes among counsel when
the funds subject to the dispute are in the court's control.
Compare Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1298,
1301 (7th Cir. 1995) (district court had ancillary jurisdiction to
decide a referral fee dispute between attorneys, when the
settlement approved by the court contained terms for calculating
the fees and the disputed amount was held in an escrow account by
the clerk of court); and Grimes v. Chrysler Motors Corp., 565 F.2d
841, 844 (2d Cir. 1977) (per curiam) (court had ancillary
jurisdiction to decide a fee dispute between trial counsel and
attorney of record after the court approved the settlement, because
the settlement funds were in the court's registry and therefore
within its control); with Taylor v. Kelsey, 666 F.2d 53, 54 (4th
Cir. 1981) (per curiam) (no ancillary jurisdiction existed over a
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"purely" private contract dispute between an attorney and former
co-counsel, because the fee dispute had no effect on the outcome of
the litigation or the recovery of the plaintiffs, and the court did
not have control over the disputed funds).
Efron's fee dispute did not arise in the course of
enforcing or approving a settlement agreement, as was the case in
Grimes and Baer, but it did emerge in direct response to the
court's decision to allow partial execution on its judgment. The
district court needed to resolve the ancillary fee dispute in order
to complete the execution on the underlying judgment. See
Kokkonen, 511 U.S. at 381. The district court's control over
$1,000,000 of the partially executed judgment therefore conferred
authority to determine the proper recipients of those funds in
order to conclude the court's responsibilities in the underlying
action. See Baer, 72 F.3d at 1301; Grimes, 565 F.2d at 844.
B. Findings on Credibility and Misleading Statements
Efron first challenges the district court's findings that
he attempted to mislead the court and that he was not credible.
Those challenged findings addressed three representations that
Efron made to the court: (1) that he and Matthews & Fullmer "had
expressed and verbally agreed" that Efron would receive 80 percent
of the fee award; (2) that Efron did not put the revised fee
agreement in writing because he trusted Fullmer; and (3) that
Efron's Spanish-speaking attorneys, and not Matthews & Fullmer,
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facilitated preparation for the trial because the plaintiffs "speak
little or no English." Efron made the first and third statements
in his motion, and the second at the hearing.
During the hearing, Fullmer testified that he denied
Efron's request for an 80 percent fee because Fullmer's firm bore
the financial risk of the case by paying more than $100,000 in
litigation expenses. Fullmer countered with alternative fee
divisions of "30-70, 40-60, 50-50," but "[Efron] didn't want
those," and never accepted any counteroffer. Fullmer also argued
that "had there been [a modified fee agreement], any attorney would
have sought that in writing." With respect to communicating with
the plaintiffs, Fullmer told the court that plaintiff Rodríguez
"speaks great English," and that he "always talked with her." This
testimony by Fullmer provided ample support for the district
court's finding that the agreement alleged by Efron did not exist.
But there was more. Efron's own testimony belied his
prior representations to the court. Instead of backing up his
claim that there was an express verbal agreement that Efron would
receive 80 percent of the attorneys' fees, Efron fell back to
saying only that there was an "implicit" agreement that he would
receive "the lion's share." In fact, Efron admitted that Fullmer
never agreed to change the fee-sharing agreement: "[w]e tried to
come to an agreement with [Fullmer]. He would have nothing to do
with it. He insisted that it was 20% and the last thing he said,
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and I was very sorry to hear that from him, was '[w]e'll have to
let the Court decide.'" In short, Efron's testimony materially
fell short of the assertion made in his motion that he and Fullmer
"had expressed and verbally agreed" that Efron would keep 80
percent of the fee.
Given the foregoing testimony, the district court as
factfinder clearly had ample basis to find, as it did, "that
Efron’s comments in his motion about an express verbal contract
were meant to mislead the Court." Alejandro-Ortiz, 2013 WL
5755358, at *3.
The district court did not believe Efron on two other
points. The court found that "Efron’s statement that he did not
ask for the [fee] agreement in writing because he 'trusted' Fullmer
[was] not credible or believable," because "both attorneys seem
sufficiently competent not to have acted in such a manner." Id.
And, in light of Efron's misleading statements about the fee
agreement and English-language text messages between Efron's
associate and plaintiff Rodríguez, the district court (which had
spoken directly to one of the plaintiffs) was also "forced to
conclude that Efron was purposefully misleading the Court" when he
represented that the plaintiffs "speak little or no English." Id.
at *4.
Efron complains that these unflattering findings were
unnecessary dicta and ought to be amended or stricken from the
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order. Efron never articulates a basis for such relief, and
instead simply labels the court's findings dicta,
"misrepresent[ing] . . . the facts," and evidence of the district
court's personal bias against him.
The simple response is that, if the challenged findings
were truly only dicta, we would likely not review them on appeal.
See In re Williams, 156 F.3d 86, 92 (1st Cir. 1998) ("[C]ritical
comments made in the course of a trial court's wonted
functions--say, factfinding or opinion writing--do not constitute
a sanction and provide no independent basis for an appeal."). The
more direct response is that these are precisely the kind of
findings that courts or juries make in deciding disputes of this
type. Efron's credibility was relevant, especially in resolving
the "he said, he said" dispute between Efron and Fullmer. And the
evidence presented to the court--including Efron's own internally
inconsistent story--clearly provided the necessary support for its
adverse findings that Efron was not credible and had tried to
mislead the court. See Ryan v. Astra Tech, Inc., 772 F.3d 50, 61-
62 (1st Cir. 2014) (district court properly disbelieved the
accuracy of a sanctioned attorney's version of events in part
because the lawyer's "account of the events and his actions . . .
d[id] not inspire confidence in his truthfulness").
Efron seems to forget that, in this dispute, he played
the role of a party and a witness. He should hardly be surprised
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that the district court made routine fact-finding judgments about
the credibility of the assertions he made in direct support of his
claim for more money. District courts do this every day. See,
e.g., Jackson v. United States, 708 F.3d 23, 30-31 (1st Cir. 2013);
Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1, 5 (1st Cir.
2005). And we review such findings deferentially, especially when
they bear on credibility. Jennings v. Jones, 587 F.3d 430, 444
(1st Cir. 2009) ("District court determinations of credibility are
of course entitled to great deference."). Similarly, as a party
asking the court, in effect, to equitably apportion fees to him in
excess of the portion specified in his contract, he can hardly
complain that the district court paid attention to his care and
good faith in representing facts to the court. See Texaco P.R.,
Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 880 (1st Cir. 1995)
(describing equitable doctrine of unclean hands). For all of these
reasons, there is no basis to disturb the district court's
findings.4
4
To the extent Efron challenges the district court's
statements on the basis that they reflect bias, his argument is
utterly without merit. Efron did not seek the magistrate judge's
recusal, and in fact affirmatively waived any claim of bias by
stating, in his motion for reconsideration, that "Efron does not
seek to recuse or disqualify the [magistrate judge] based on bias
or prejudice." See United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) ("A party waives a right when he intentionally
relinquishes or abandons it."). Even if Efron had not waived any
claim of bias, "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
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C. Attorneys' Fees Apportionment
Having rejected Efron's claim that the lawyers made any
agreement regarding fees other than the agreement that allotted 20
percent to Efron, the district court nevertheless awarded Efron 40
percent of the fees. In doing so, the district court concluded
that the lawyers' agreement did not anticipate or address the roles
ultimately assumed, and that the added work Efron performed merited
a 40 percent share of the fees. Fullmer has not appealed this
equitable adjustment. Efron, though, has, claiming that he should
have received more.
It is hard to imagine our overturning such an inherently
discretionary equitable apportionment by the district court. See
Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992) ("[B]ecause
determination of the extent of a reasonable fee necessarily
involves a series of judgment calls, an appellate court is far more
likely to defer to the trial court in reviewing fee computations
than in many other situations."). Just as the court noted that
Efron did more than local counsel would normally do, so too it
observed how Matthews & Fullmer "participated to a significant
degree . . . from [the case's] inception up until trial, including
antagonism that would make fair judgment impossible." Liteky v.
United States, 510 U.S. 540, 555 (1994). Rather than antagonism,
the district court displayed patience and balance in resolving a
difficult and unusual problem, and it explained that it "thought
long and hard about whether [the words the court used] were proper
and warranted, and [it] employed them reluctantly."
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by preparing and filing motions and securing experts," and
continued to bear the financial risk of receiving no compensation
for the litigation expenses it had paid. Alejandro-Ortiz, 2013 WL
5755358, at *6.
Efron himself points to no other specific, more
appropriate apportionment, nor does he explain why the 40 percent
award is so indefensible as to be vulnerable to the limited review
applicable here. The argument in Efron's opening brief consists of
a reference to the abuse of discretion standard of review, a
conclusory statement that "[s]imply put, the Magistrate's
resolution of the finances of this case are [sic] wrong," and
irrelevant digressions.5 Efron does tell us that he once received
80 percent of the attorneys' fees for a medical malpractice case
referred to him by Matthews & Fullmer and for which he served as
lead counsel from the outset. Of course, that one data point is
not an apt comparison for this case, in which Matthews & Fullmer
played a significant role. Efron also latches onto Fullmer's
suggestion during the hearing that Fullmer offered and Efron
rejected a 50-50 share, but Efron fails to explain why he should
now benefit from a bargain he once rejected. Such a perfunctory
5
Efron attempts to assert the right of Matthews & Fullmer's
alleged judgment creditor to garnish Matthews & Fullmer's portion
of the fee. Of course, as Efron acknowledges, that dispute is "not
[his] fight." A quick glance at the district court docket after
this appeal was filed assures us that the creditor appears more
than capable of asserting its own rights.
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effort on appeal borders on waiver. See Rodríguez v. Municipality
of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("It should go
without saying that we deem waived claims not made or claims
adverted to in a cursory fashion, unaccompanied by developed
argument."); Harriman v. Hancock Cnty., 627 F.3d 22, 28 (1st Cir.
2010) (appellant waived issues when he "correctly identifie[d] the
standard of review, but that [was] about all"). Waived or not,
Efron's argument fails to show that the district court abused its
discretion in determining the relative value of Efron's legal
services.
D. The District Court's Ex Parte Communication
Efron's final claim of error is that the district court's
communication with plaintiff Rodríguez violated the prohibition on
ex parte communications in Canon 3(A)(4) of the Code of Conduct for
United States Judges.6 At no time did Efron object to the district
6
Canon 3(A)(4) reads in relevant part as follows:
A judge should accord to every person who
has a legal interest in a proceeding, and that
person’s lawyer, the full right to be heard
according to law. Except as set out below, a
judge should not initiate, permit, or consider
ex parte communications or consider other
communications concerning a pending or
impending matter that are made outside the
presence of the parties or their
lawyers. . . . A judge may:
. . . .
(b) when circumstances require it, permit
ex parte communication for scheduling,
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court's announced intention to communicate ex parte with the
plaintiffs, or to the communication itself. We therefore review
for plain error, a standard that requires Efron to show, among
other things, a clear or obvious error that affected his
substantial rights. Dávila v. Corporación de P.R. para la Difusión
Pública, 498 F.3d 9, 14-15 (1st Cir. 2007).
Of course, this appeal is not a judicial disciplinary
proceeding. It therefore makes no difference on this appeal
whether the district court violated the pertinent canon unless that
violation somehow could have tainted the judgment from which Efron
appeals. Efron, in turn, points to no such plausible nexus, and
instead merely asserts in a conclusory form that such a supposed
violation infringed on his due process rights. How this is so--
much less plainly so--we are left to guess.
In any event, we can easily cut to the chase and reject
Efron's argument on its merits. The canon allows ex parte
communications "for scheduling, administrative, or emergency
purposes . . . if the ex parte communication does not address
substantive matters and the judge reasonably believes that no party
will gain a procedural, substantive, or tactical advantage." Code
administrative, or emergency purposes, but
only if the ex parte communication does not
address substantive matters and the judge
reasonably believes that no party will gain a
procedural, substantive, or tactical advantage
as a result of the ex parte communication.
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of Conduct for United States Judges Canon 3(A)(4)(b). The district
court clearly faced an emergency: the plaintiffs' local and pro hac
vice counsel were at odds over who actually represented the
plaintiffs. Nor did the district court's communication with the
plaintiffs have anything to do with the substance of the underlying
case or even the ancillary matter of the fee division between Efron
and Matthews & Fullmer. Given that the district court announced
its intention to talk to the plaintiffs, and no one objected, we
cannot see how the court possibly violated Canon 3(A)(4), let alone
clearly or obviously violated it in a manner that caused improper
prejudice to Efron in this case.
Efron also claims that the ex parte communications
violated his due process rights in connection with disciplinary
proceedings7 instituted against Efron as a result of his conduct in
a different case. How that may be so, we have no idea, and Efron
again does not enlighten us. In any event, that argument about
another case is irrelevant to the issues before us now.
7
Efron asked to file a sealed addendum with court documents
from that disciplinary proceeding and which are not a part of the
district court record for this appeal. A duty panel of this court
deferred a decision on whether to take judicial notice of these
documents to the merits panel. Because the sealed documents are
not relevant to the issues on this appeal, we decline to take
judicial notice. Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir.
1990) ("It is well-accepted that federal courts may take judicial
notice of proceedings in other courts if those proceedings have
relevance to the matters at hand.").
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III. Conclusion
Finding no fault with the district court's conduct and
rulings, we affirm the district court's October 23, 2013, order.
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