Ryan v. Astra Tech, Inc.

United States Court of Appeals
For the First Circuit
No. 13-2251
JEFFREY F. RYAN,
Appellant,
CHEVONNE SIUPA,
Plaintiff,
v.
ASTRA TECH, INC.; JOE JOHNSON; STEVE CYR,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. Magistrate Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Arnold R. Rosenfeld, with whom Camille F. Sarrouf and Sarrouf
Law, LLP were on brief, for appellant.
Andrea C. Kramer, with whom Hirsch Roberts Weinstein, LLP was
on brief, for appellees.
November 14, 2014
KAYATTA, Circuit Judge. Attorney Jeffrey Ryan ("Ryan")
appeals from the district court's revocation of his permission to
practice pro hac vice for the plaintiff in the underlying lawsuit
that gave rise to these proceedings.1 The district court revoked
Ryan's pro hac vice admission after finding that he lied to the
court about attempting to interfere with the deposition of his
client. Finding no error, we affirm.
I. Background
The conduct that led to the revocation challenged on this
appeal occurred during a deposition of Ryan's client by defense
counsel on October 24, 2012. The deposition transcript shows
that a half hour into the deposition, defense counsel asked Ryan's
client, the plaintiff, about an interrogatory answer. After the
plaintiff struggled for more than one minute to answer defense
counsel's question, the following exchange between the attorneys
took place:
[Defense counsel]: I would like the record to reflect Mr.
Ryan is writing notes to his client while she is
answering a question. If he wishes to prove that's not
true rather than going on a rampage, he can turn back
over the notepad that he just turned over, and he can
show us all what he wrote on it. But I will, again, be
bringing up to the court that he was writing on a
notepad. And when I looked at him, he turned it over.
1
The parties consented to proceed before a magistrate judge
pursuant to 28 U.S.C. § 636(c)(1). The magistrate judge thus had
authority to "conduct any or all proceedings" in the matter, id.,so we refer to relevant rulings as those of "the district court,"
or simply "the court."
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It was clear that [the plaintiff's] eyes were looking at
the notepad as well.
Mr. Ryan: Nothing that [defense counsel] said in that
last statement was accurate. 100 percent false.
[Defense counsel]: Then I would request that you bring
that notepad to the court and let the court look at it.
Defense counsel then asked the plaintiff while she was still under
oath whether she had seen Ryan flip the notepad over. The
plaintiff admitted that "[t]he notepad has been flipped over and
reflipped over," and "I saw something in my peripheral vision."
The plaintiff denied looking at the notepad. After further
skirmishes, the deposition was suspended, with defense counsel
announcing that she was calling the court.
After a forty-minute recess, Ryan and the plaintiff made
statements on the deposition record. Ryan stated his position that
defense counsel was wasting her allotted deposition time, and Ryan
and the plaintiff both accused defense counsel of writing notes
during prior depositions of the defendants. Ryan also announced
that he was "prepared to show to the judge the notepad, which, as
I accurately stated, only contains the information about the
address of the courthouse which we're going to . . . later today."
A status conference with the district court had already
been scheduled for 4:15 that afternoon to resolve unrelated
deposition scheduling disputes. After the court addressed the
scheduling issues, defense counsel described the notepad incident
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and made an oral motion for monetary sanctions, including costs for
the court reporter and to have future depositions video-recorded.
Ryan began his rebuttal by showing the court a notepad
that Ryan said was the notepad he had at the deposition. The only
writing on the notepad was the address of the courthouse. Ryan
denied that defense counsel saw him writing a note because defense
counsel's binders on the table would have obstructed her view of
his notepad. He accused defense counsel of writing notes to her
clients during prior depositions. Ryan did admit to flipping the
notepad over but maintained that he had only written the address of
the courthouse on the notepad before doing so. When the court
asked Ryan why he did not simply show defense counsel the notepad,
Ryan at first answered that defense counsel did not ask to see the
notepad, and if she had, he would have shown her: "All she had to
do was ask. I would have handed it to her, your Honor. She did
not ask to see it." In fact, the deposition transcript shows that
opposing counsel did invite Ryan to turn the notepad over. Pressed
on why he did not volunteer to show the notepad and resolve the
dispute, Ryan stated that he was "deeply offended" and accused
defense counsel of whispering to deposition witnesses.
The district court then heard testimony from the
deposition's court reporter. She testified that Ryan wrote
something on the notepad and moved it toward his client, the
plaintiff. He then flipped the notepad over when accused by
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defense counsel. The court reporter could not read what Ryan had
written, but she could see that there were two distinct pieces of
writing on the notepad, one at the top and one further down the
page. She recalled that, after the deposition was suspended, Ryan
left the room with the notepad for less than a minute. When he
returned, he held the notepad up, made some sort of offer that it
was available for viewing, and placed it on the table. The court
reporter was unsure whether defense counsel heard Ryan's
announcement or looked at the notepad.
Most significantly, the court reporter testified that the
writing on the notepad that Ryan placed on the table after
reentering the room was not the same as the writing on the notepad
that he had moved toward the plaintiff during the deposition. It
was missing a few words or a sentence that had appeared under the
writing at the top of the notepad. Likewise, the court reporter
testified that the notepad that Ryan showed the court during the
hearing was similarly missing the writing that was on the notepad
that he had moved toward his client during the deposition.
The plaintiff also testified. She denied that she looked
at the notepad on the table while a question was pending. She
confirmed that Ryan flipped the notepad over after defense counsel
went on the record about the notepad. She also opined that the
court reporter could not have seen what was on the notepad because
the reporter continued transcribing during the incident. The
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plaintiff had "no idea" what Ryan had taken out of the room when he
left the deposition room. She did testify that Ryan showed her the
notepad before he left the room and the notepad contained the
courthouse address.
At the end of the hearing, defense counsel made an oral
motion to revoke Ryan's pro hac vice admission because the court
reporter's testimony showed that he had offered false evidence to
the court. The court denied the motion without prejudice but told
defense counsel that she could renew it in writing, after which
"[Ryan] has an opportunity to respond to it."
One week later the district court issued an order
granting defendants' motion for discovery sanctions. The district
court found the court reporter's testimony "wholly credible" and
not undermined by the plaintiff's testimony.2 Siupa v. Astra Tech,
Inc., No. 10-10525-LTS, 2012 WL 5385681, at *6-7 (D. Mass. Oct. 31,
2012). The court made the following specific findings of fact:
Mr. Ryan wrote something on his legal pad while the
Plaintiff struggled to answer a question, pushed the pad
toward his client, and then flipped it over to shield it
from defense counsel's view. Immediately thereafter, Mr.
Ryan failed to do what the Court would expect a lawyer to
do in this circumstance: either show the legal pad to
defense counsel when she stated her beliefs, or place the
pad in a sealed envelope (if, for instance, it contained
2
Although the court found the plaintiff credible, when she
testified about the contents of the notepad "her demeanor reflected
that her answer was tentative, and she already had admitted she was
under stress at the time based on the manner in which her
deposition was suspended." Siupa v. Astra Tech, Inc., No. 10-
10525-LTS, 2012 WL 5385681, at *7 (D. Mass. Oct. 31, 2012).
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privileged information), taking steps to memorialize
either action on the record during the deposition . . . .
Instead, Mr. Ryan, in a patently false statement, denied
having taken the actions defense counsel (and the court
reporter) had witnessed. When the deposition was
temporarily suspended, he took the legal pad, left the
room, somehow disposed of the relevant writing, and
returned. He later made another false statement on the
record, before the parties left defense counsel's
conference room, regarding the content of the writing on
the legal pad.
. . . [A]t the hearing before this Court, Mr. Ryan
again falsely denied his actions and knowingly presented
as evidence a legal pad that he had intentionally
altered.
Id. at *7.
In short, the district court found as a matter of fact
that Ryan attempted to communicate surreptitiously with his client
while a question was pending at a deposition, that Ryan
manufactured false evidence, and that Ryan lied to the court. The
court put these findings in the context of Ryan's prior conduct
during the case. This conduct included adding a jury demand to a
filed amended complaint after obtaining opposing counsel's assent
and the court's permission to file an amended complaint without a
jury demand, disobeying a court order about discovery, attaching
personal and irrelevant information as exhibits to a hearing
request, and threatening to embarrass a defendant's wife. The
court ordered Ryan to pay monetary sanctions consisting of fees and
costs for litigating the motion for sanctions, the court reporter's
time, and videotaping the plaintiff's and all subsequent
depositions. The court also directed Ryan to show cause why it
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should not revoke his pro hac vice admission for flagrant
violations of the Massachusetts Rules of Professional Conduct. Id.
at *1, *8; Mass. R. Prof'l Conduct 3.3(a)(1) & (4), 3.4(a) & (b),
4.1(a). The court gave Ryan two weeks to file a response and, at
Ryan's later request, a one week extension.
Ryan's response to the show cause order totaled more than
100 pages, including a memorandum of law, his declaration, the
plaintiff's declaration, the declaration of a paralegal who worked
with Ryan, results from a polygraph exam Ryan took with questions
about the notepad, excerpts from deposition transcripts that Ryan
argued showed defense counsel coaching witnesses, and several other
exhibits. Soon after filing his response, Ryan also filed a motion
for reconsideration of the monetary sanctions the court had already
imposed, arguing that "new evidence ha[d] been presented" in his
response to the show cause order that undermined the court's
factual findings. After the defendants' opposition filing, Ryan
filed a sur-reply. Neither side requested that the court take any
additional testimony, hold oral argument, or follow any particular
procedures.
After conducting a de novo review of the entire record in
the case, including testimony during the October 24 hearing and
Ryan's filings in response to the show cause order, the district
court again found that Ryan lied to the court and opposing counsel
and submitted false evidence. The court observed that our circuit
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has not set standards for the revocation of pro hac vice status
once it has been granted. The court decided to apply the general
due process requirements discussed in Johnson v. Trueblood, in
which the Third Circuit concluded that "some type of notice and an
opportunity to respond are necessary when a district court seeks to
revoke an attorney's pro hac vice status." 629 F.2d 302, 303 (3d
Cir. 1980). The court concluded that the order to show cause
sufficed as notice and that Ryan had adequate opportunity to be
heard in his substantial written filings. On December 18, 2012,
the district court issued an order revoking Ryan's pro hac vice
admission and denying the motion for reconsideration of the
monetary sanctions. Siupa v. Astra Tech, Inc., No. 10-10525-LTS,
2012 WL 6622492, at *8 (D. Mass. Dec. 18, 2012).
At a subsequent January 16, 2013, status conference,
Ryan, now represented by his own attorney, voiced to the district
court due process concerns about the revocation of his pro hac vice
admission. In particular, Ryan asked the court either to grant
another evidentiary hearing or to strike the sanctions because of
the potential adverse consequences the revocation could have for
Ryan's legal career. The court gave Ryan leave to make yet another
filing in order to spell out a request for different punishment or
an additional evidentiary hearing:
To the extent you want me to reconsider, if you will, the
consequence or the punishment I impose, or you wish me to
reopen it for a hearing, then file a short motion
explaining to me what the different issues are and why
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you think I should do it, and if I reopened it or had a
further hearing, what it would be about and who would
testify and why it would be a useful expenditure of time.
In response, Ryan filed a memorandum of law that asserted that the
court denied Ryan notice and an opportunity to be heard in
violation of his due process rights and the sanctions were
disproportionate to the alleged misconduct. His filing ended with
a request for a hearing ("Ryan requests a hearing"), but it
contained no detail about who the witnesses would be, what they
would testify about, or why a hearing "would be a useful
expenditure of time."3 Ryan also objected that he did not have
prior notice that the finding that he wrongfully inserted the jury
demand into the amended complaint was a potential ground for
revocation of his pro hac vice admission. Ryan did not attempt to
controvert the finding itself.
On February 5, 2013, the district court denied Ryan's
requests for reconsideration and a hearing. Siupa v. Astra Tech,
3
The closest Ryan came to proposing testimony to be offered
at a hearing was in his argument that the October 24, 2012, hearing
was deficient: "[Ryan] should have been accorded at least notice of
the purpose of the October 24, 2012 hearing and a separate
opportunity to be heard, to confront his accuser, and even possibly
to testify." Given notice and a chance to prepare, Ryan asserted
that he could have prepared direct and cross examinations of the
court reporter and the plaintiff, obtained photographs and a
reconstruction of the deposition table to "analyze[] the lines of
sight of the witnesses, a key factor in their testimony," obtained
separate counsel, and called defense counsel as a witness. In
fact, the record is undisputed that Ryan knew at least four hours
beforehand exactly what the subject of the October 24 hearing would
be--his behavior at the deposition--and he did not seek any greater
opportunity to prepare for that hearing.
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Inc., No. 10-10525-LTS, 2013 WL 450149, at *3 (D. Mass. Feb. 5,
2013). The court concluded that no due process violation occurred
and Ryan failed to justify another evidentiary hearing. As for the
amended complaint, the court noted that Ryan must have known that
the complaint was at issue because he addressed it in his initial
response to the show cause order. Ryan now appeals the revocation
of his pro hac vice admission and the imposition of monetary
sanctions,4 neither of which was mooted by the eventual settlement
of his client's claim. See Obert v. Republic W. Ins. Co., 398 F.3d
138, 143 (1st Cir. 2005) (potential damage to attorneys'
4
Ryan filed a joint notice of appeal with the plaintiff
after the defendants prevailed in the underlying employment
discrimination case. The joint notice of appeal announced Ryan's
intention to "appeal[] the revocation of his pro hac vice admission
to the United States District Court, District of Massachusetts, by
Chief Magistrate Judge Leo T. Sorokin, on October 31, 2012,
reconsideration denied, on December 18, 2012, in the above entitled
case." Although it would have been preferable for Ryan to file a
separate notice of appeal challenging the sanctions order, we
nonetheless have jurisdiction over Ryan's appeal from the
revocation of his pro hac vice admission. See In re
Plaza-Martínez, 747 F.3d 10, 13 (1st Cir. 2014).
Ryan's intent to appeal the monetary sanctions order is not so
clear. He seeks in a supplemental letter brief to clarify that he
also appeals the order imposing monetary sanctions. We have an
"oft-stated policy of affording liberal construction" to the notice
requirement in Federal Rule of Appellate Procedure 3. Id. Both
orders referenced in the joint notice of appeal concerned the
monetary sanctions as well as Ryan's pro hac vice admission. These
references, along with our policy of liberal construction, are
enough for us to assert jurisdiction over Ryan's appeal of the
monetary sanctions. See Fed. R. App. Proc. 3(c)(1)(B) ("The notice
of appeal must . . . designate the judgment, order, or part thereof
being appealed.").
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reputations from findings of ethical violations was sufficient to
avoid mootness).
II. Standard of Review
Although the district court did not explain the basis of
its authority to revoke Ryan's pro hac vice admission, it relied on
the district court's inherent power to sanction. See Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991) (federal courts have inherent
power "to discipline attorneys who appear before it"). We review
the imposition of a sanction pursuant to the court's inherent power
for an abuse of discretion. United States v. Agosto-Vega, 731 F.3d
62, 64 (1st Cir. 2013); see also In re Cordova-González, 996 F.2d
1334, 1335 (1st Cir. 1993)(per curiam)(reviewing disbarment for
abuse of discretion). Importantly, we accept all findings of fact
unless clearly erroneous. F.A.C., Inc. v. Cooperativa de Seguros
de Vida de P.R., 563 F.3d 1, 6 (1st Cir. 2009).
III. Analysis
We begin with the obvious. Trial courts have ample
authority pursuant to Fed. R. Civ. P. 30(d)(2) to impose sanctions
"on a person who impedes, delays, or frustrates the fair
examination of the deponent." The rule itself spells out no
specific procedure, but the procedure the district court followed
at the request of both counsel is standard: counsel suspended the
deposition to bring the issue to the court, and the court heard
arguments from both counsel, took testimony and evidence as
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reasonably proffered, and later issued a decision imposing monetary
sanctions. Under Rule 30(d)(2), this procedure was unassailable,
and Ryan offers no precedent suggesting otherwise. Ryan does
correctly argue that monetary sanctions of this type are more fair
when accompanied by notice and an opportunity to be heard. See
Agosto-Vega, 731 F.3d at 66 ("[T]he sua sponte issuance of a
sanction order, staking out a view and judgment without any warning
or opportunity to be heard, increases the likelihood of error and
the appearance of unfairness."). Here, though, the sanctions were
issued at the request of a party, and Ryan was heard before any
decision was made. The issue, too, was quite simple, and turned
entirely on the testimony of four people, all of whom were present
at the hearing.
Unable to assail the procedures followed by the district
court in resolving the discovery dispute with an award of
sanctions, Ryan raises three challenges to the court's revocation
of his pro hac vice admission. First, he argues that the district
court failed to follow the procedure for attorney discipline in
District of Massachusetts Local Rule 83.6. Second, he argues that
the procedure the court did follow violated his due process rights.
Finally, Ryan challenges the court's decision on the merits by
arguing that there was insufficient evidence to support the fact
findings upon which both the revocation of his pro hac vice
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admission and the preceding discovery sanctions were predicated.
We address each challenge in turn.5
A. Applicability of the Local Rules governing attorney discipline
Ryan argues that the district court failed to follow two
provisions of the district court's local rule governing
disciplinary proceedings. See D. Mass. Local R. 83.6(4), (5). The
first provision provides that "[f]or misconduct defined in these
rules, and for good cause shown, and after notice and opportunity
to be heard, any attorney admitted to practice before this court
may be disbarred, suspended from practice before this court,
reprimanded or subjected to such other disciplinary action as the
circumstances may warrant." D. Mass. Local R. 83.6(4)(A).
Misconduct includes "[a]cts or omissions . . . that violate the
ethical requirements and rules concerning the practice of law of
the Commonwealth of Massachusetts." D. Mass. Local R. 83.6(4)(B).
The court fully complied with Local Rule 83.6(4) before revoking
Ryan's admission to practice before the court. Ryan received
notice in the order to show cause informing Ryan that the court was
5
Ryan does not actually challenge in his brief the award of
monetary sanctions per se. The only argument Ryan devotes to the
issue is a short statement in his reply brief that the notice of
appeal also included the monetary sanctions. 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."). Even if Ryan had not waived this claim, however, we
would find the monetary sanctions proper for the same reasons we
find the revocation of his pro hac vice admission proper.
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considering revoking his pro hac vice admission based on two and a
half pages of factual findings describing Ryan's "serious
misconduct."
Ryan also had sufficient opportunity to be heard. The
district court gave Ryan all the time he requested in order to file
a response to the order to show cause. Ryan took advantage of this
opportunity to file declarations, exhibits, and argument. The
court also entertained a motion for reconsideration challenging the
monetary sanctions and a "sur-reply" to Astra Tech's filing in
support of the revocation and monetary sanctions. The court even
allowed Ryan, through counsel, to file an additional memorandum
continuing to re-argue the issues even after entry of the order
revoking Ryan's pro hac vice status. These filings provided Ryan
ample opportunity to contest the proposed revocation.
The second local rule Ryan relies on sets out a more
detailed referral and hearing procedure for court-initiated
attorney disciplinary proceedings. D. Mass. Local R. 83.6(5). The
rule states in relevant part that
When misconduct or allegations of misconduct that, if
substantiated, would warrant discipline as to an attorney
admitted to practice before this court, is brought to the
attention of a judicial officer, whether by complaint or
otherwise, and the applicable procedure is not otherwise
mandated by these rules, the judicial officer may refer
the matter to counsel for investigation, the prosecution
of a formal disciplinary proceeding or the formulation of
such other recommendation as may be appropriate.
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D. Mass. Local R. 83.6(5)(A). If the independent counsel decides
that formal disciplinary proceedings are appropriate, the court may
issue an order for the respondent-attorney to show cause why the
attorney should not be disciplined. D. Mass. Local R. 83.6(5)(C).
If the respondent-attorney raises "any issue of fact" or "wishes to
be heard in mitigation," then the chief judge "shall set the matter
for prompt hearing before three (3) judges of this court."
D. Mass. Local R. 83.6(5)(D). The complaining judge may not sit on
this panel. Id.Local Rule 83.6(5) does not unambiguously indicate
whether it is a mandatory or discretionary procedure for
disciplining an attorney. The rule's language that the district
court "may" refer the matter to independent counsel suggests that
the rule's disciplinary procedure is merely an option available to
the district court and not a prescribed course of action.
Certainly the district court possesses inherent authority to levy
sanctions and control who may appear before it. See Chambers, 501
U.S. at 42-46; Agosto-Vega, 731 F.3d at 64. It seems unlikely that
the Massachusetts district court intended to restrict the exercise
of its broad and important inherent authority so significantly and
cumbersomely without doing so expressly and unambiguously.6 In
6
Other district courts in the First Circuit have chosen to
make referral to independent or bar counsel expressly mandatory.
See, e.g., D. Me. Local R. 83.3(e)(1) ("[T]he Judge shall refer the
matter to counsel for investigation and the prosecution of a formal
proceeding or the formulation of such other recommendation as may
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fact, the Local Rules expressly preserve the district court's
inherent power to sanction attorneys appearing before it. See
D. Mass. Local R. 83.6(11)(A) ("Nothing contained in these rules
shall be construed to deny to the court such powers as are
necessary for the court to maintain control over proceedings
conducted before it . . . ."). In at least one instance, the
district court itself has expressed doubt about whether referral to
bar counsel is always "effective and efficient" and treated the
procedure as discretionary. United States v. Jones, 620 F. Supp.
2d 163, 177 (D. Mass. 2009) (stating intention to instead rely on
criminal contempt authority pursuant to 18 U.S.C. § 401 and Fed. R.
Crim. P. 42(a) to sanction prosecutors who withhold exculpatory
evidence); see also United States v. Roberts, 978 F.2d 17, 20 (1st
Cir. 1992) ("A district court possesses great leeway in the
application and enforcement of its local rules."). Further, an
interpretation that the extensive procedure in Local Rule 83.6(5)
is mandatory would make superfluous the more general "notice and
opportunity to be heard" requirement in Local Rule 83.6(4) for
disciplining an attorney for misconduct.
On the other hand, it also seems unlikely that the
district court would create such a detailed and resource-intensive
procedure if individual district court judges could decline to
follow it. And, once the judicial officer triggers the Local Rule
be appropriate.").
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83.6(5) procedure by referring the matter to independent counsel,
the rest of the steps in the process appear to be mandatory.
In the end, we need not decide this question because Ryan
never asked the district court to follow the Local Rule 83.6(5)
procedure. Ryan did not so much as mention the relevant local rule
in any of his district court filings or appearances, his voluminous
response to the order to show cause, or his sur-reply. Even after
he retained counsel, counsel too made no belated request or
argument that the rule's procedure be invoked. Ryan had ample
opportunity to argue below that Local Rule 83.6(5) dictated a
specific procedure, but he failed to do so.
We therefore review the district court's alleged failure
to follow Local Rule 83.6(5) for plain error. See Tasker v. DHL
Retirement Sav. Plan, 621 F.3d 34, 40-41 (1st Cir. 2010). To
overcome plain error review, Ryan must show "(1) an error occurred
(2) which was clear or obvious and which not only (3) affected
[Ryan's] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of the judicial
proceedings." Id. (internal quotations omitted). Given the lack
of clarity that we have already discussed concerning whether the
rule's procedure must always be invoked in such cases, we cannot
find the failure to follow the procedure in the local rule clear or
obvious error. Nor has Ryan given us reason to believe that the
outcome of his case would have been any different if the district
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court had followed the local rule procedure. Ryan has therefore
failed to establish plain error.
B. Alleged due process violations
That brings us to Ryan's more general challenge that the
district court violated his right to procedural due process under
the Fifth Amendment. In particular, Ryan claims that he was
entitled to prior notice, an opportunity to be heard, and an
evidentiary hearing. We have not yet decided whether an attorney's
pro hac vice admission is a property interest protected by due
process, and, if so, what procedural safeguards due process
requires before the district court may revoke that admission. We
need not answer these questions today, however, because the
district court afforded Ryan each of the procedural protections to
which he claims he was entitled.7
7
Other circuits have concluded that attorneys admitted pro
hac vice are entitled to notice and an opportunity to be heard
before the court revokes their admission. See Belue v. Leventhal,
640 F.3d 567, 577 (4th Cir. 2011) ("[O]nce [pro hac vice] status is
granted, attorneys must receive some modicum of due process before
it is revoked.") (collecting cases); Lasar v. Ford Motor Co., 399
F.3d 1101, 1112 (9th Cir. 2005) ("[W]e have held that a district
court need only provide notice and an opportunity to be heard
before revoking an attorney's pro hac vice status."); Johnson, 629
F.2d at 303 ("[W]e believe that some type of notice and an
opportunity to respond are necessary when a district court seeks to
revoke an attorney's pro hac vice status."). These courts have
declined to require additional procedural safeguards. See Belue,
640 F.3d at 577 ("While courts are generally in agreement that pro
hac vice attorneys must receive notice of the specific grounds for
revocation and a meaningful opportunity to respond, none have been
willing to extend due process protections beyond those
baselines."). We have reached the same conclusion for attorneys
facing disbarment. In re Cordova-González, 996 F.2d 1334, 1336
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To the extent due process required prior notice and an
opportunity to be heard, those requirements mirror those in Local
Rule 83.6(4) and were satisfied by the October 31 order to show
cause and the opportunities to file several written responses in
the district court. This is not a case in which the district court
disciplined an attorney without warning or a chance to explain
alleged misconduct. Cf. Plaza-Martínez, 747 F.3d at 14 (reversing
sanctions when "[t]he district court acted here without giving the
appellant any notice that it was considering sanctions or any
opportunity to tell her side of the story"); Lasar, 399 F.3d at
1113 (due process violation when district court imposed lifetime
ban on attorney's pro hac vice appearance and show cause order did
not clearly raise ban as a possibility). Nor is this a case in
which the court sanctioned conduct that was not obviously
sanctionable. Cf. Agosto-Vega, 731 F.3d at 65 (district court
cannot "sanction counsel for defying the court's unstated
expectations").
Ryan's assertion that the court was somehow required to
notify him that it was considering revocation before the October
24, 2012, evidentiary hearing confuses the imposition of monetary
(1st Cir. 1993) (per curiam) ("[T]he due process rights of an
attorney in a disciplinary proceeding do not extend so far as to
guarantee the full panoply of rights afforded to an accused in a
criminal case. Rather, an attorney facing discipline is entitled to
procedural due process, including notice and an opportunity to be
heard." (internal quotations and citations omitted)).
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sanctions under Fed. R. Civ. P. 30(d)(2) and the revocation of his
pro hac vice admission for misconduct under Local Rule 83.6(4).
The evidentiary hearing on October 24, 2012, was about monetary
sanctions for deposition misconduct under Fed. R. Civ. P. 30(d)(2)
brought to the court's attention on oral motion by defense counsel.
At that hearing, and without objection by Ryan, the court did
exactly what any court would do in such a situation: it heard out
all counsel, accepted the evidence offered by each counsel, and
then decided what happened at the deposition. There was nothing
wrong with this procedure.
Nor was it improper for the court to consider its factual
findings adopted in resolving the discovery dispute when
subsequently deciding to revoke Ryan's admission. Courts regularly
rely on fact findings from an earlier proceeding when the
principles of issue preclusion apply. See, e.g., Negrón-Fuentes v.
UPS Supply Chain Solutions, 532 F.3d 1, 7-8 (1st Cir. 2008);
González-Piña v. Rodríguez, 407 F.3d 425, 430 (1st Cir. 2005). And
Ryan makes no argument that those principles do not support such
reliance here. Moreover, the record here shows that the court
allowed Ryan to file any additional evidence that he wished to
file, considered that evidence, and reconsidered its prior findings
de novo. Ryan, in turn, requested no further hearing before the
court ruled. Nor can we fault the district court for rejecting the
later belated and perfunctory request for a further hearing. When
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Ryan's counsel orally requested an evidentiary hearing at a motion
hearing one month after the revocation order, the court invited
Ryan to submit his request in writing and describe the evidence he
expected to produce during the hearing. Ryan failed to follow the
court's instructions and instead submitted an eleven-page
memorandum of law with no responsive description. We find no error
in the denial of Ryan's perfunctory request.
To the extent Ryan also argues that due process required
the judge to recuse himself or refer the pro hac vice matter to
another judge, Ryan is incorrect. This is not a case in which the
cause for the disciplinary action taken by the judge is a personal
attack on that judge in circumstances in which reasonable observers
might regard the judge as having lost the ability to remain
detached. See Mayberry v. Pennsylvania, 400 U.S. 455, 465-66
(1971). Rather, this is a case in which the judge, in finding
facts necessary to resolve a discovery dispute, determined that
those same facts likely warranted further ramifications, gave Ryan
several attempts to show otherwise, and then deliberatively
addressed and resolved the matter in a manner that was hardly
surprising or disproportionate. See Liteky v. United States, 510
U.S. 540, 555 (1994) ("[O]pinions formed by the judge on the basis
of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deep-
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seated favoritism or antagonism that would make fair judgment
impossible."). Nor, finally, could Ryan shop for judges simply by
suggesting in his briefing on the pro hac vice matter that the
judge was biased. See Isaacson v. Manty, 721 F.3d 533, 536, 539-40
(8th Cir. 2013) (holding no obvious error occurred when judge did
not sua sponte recuse herself from contempt proceeding against
party who accused the judge "of bigotry, prejudice, and
conspiracy").
In sustaining the process afforded Ryan here, we are not
saying that process does not matter. It does, and courts should
take care before levying a sanction as serious as pro hac vice
revocation. See Agosto-Vega, 731 F.3d at 66 (reversing a sanction
order and noting "the importance of care and circumspection in the
exercise of the court's inherent sanction power"). We are saying,
instead, that the process was robust with many opportunities for
Ryan to present evidence and dispute the facts and the punishment.
That he did not timely ask for additional process below underscores
the adequacy of the district court's procedure.
C. Sufficiency of the evidence to support the sanctions
We turn finally to Ryan's challenge on the merits of the
district court's rulings. He argues that there was insufficient
evidence of his misconduct and that the sanctions were
disproportionate to any wrongdoing. Ryan directs us to authority
from other circuits for the proposition that the standard of proof
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in attorney disciplinary proceedings ought to be clear and
convincing evidence. See, e.g., Sealed Appellant 1 v. Sealed
Appellee 1, 211 F.3d 252, 254 (5th Cir. 2000) ("[A]ttorney
discipline proceedings require proof only by clear and convincing
evidence."). But see In re Barach, 540 F.3d 82, 85 (1st Cir. 2008)
("[T]he use of a preponderance of the evidence standard in bar
disciplinary proceedings does not offend due process."). He cites
no controlling First Circuit authority, nor can we find any. We
need not decide today whether the district court should have used
an elevated standard of proof because there was clear and
convincing evidence to support the court's findings of Ryan's
misconduct.
The most serious instances of Ryan's misconduct are
compellingly supported by the court reporter's testimony that a
notepad Ryan slid toward the witness had a note in addition to the
courthouse address. If the court reporter was correct, then Ryan
lied to the court and submitted falsified evidence during the
evidentiary hearing when he denied writing a note and offered a
notepad without the writing that the court reporter had seen. The
court found the court reporter "wholly credible." Ryan now
responds by characterizing the court reporter's testimony as
"addled" and "rife with interruptions, confusion, and
contradictions," but the court disagreed and "[d]istrict court
determinations of credibility are of course entitled to great
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deference." Jennings v. Jones, 587 F.3d 430, 444 (1st Cir. 2009).
The court reporter may have been nervous after finding herself in
the unusual position of testifying, but we see no basis in the
transcript of her testimony to conclude that her testimony was
unreliable. The court reporter testified consistently that Ryan
wrote something on his notepad and pushed it toward his client
while a question was pending, flipped the notepad over when defense
counsel accused him on the record, left the deposition room with
the notepad for less than a minute after the deposition was
suspended, reentered the room, and announced that the notepad was
available for examination. Most important, she testified
consistently that the top sheet of the notepad contained two
distinct pieces of writing before Ryan left the room but only one
piece of writing when he reentered, and that the altered notepad
was the one Ryan showed the court.
Ryan makes much of the court reporter's admission that
she could not read the note Ryan wrote on the notepad or tell
whether Ryan's client could read his note, but in doing so he
entirely misses the point. The court revoked Ryan's pro hac vice
status primarily because he lied and presented false evidence. And
in assessing Ryan's conduct in this context, it matters little
whether his client actually read the note. See In re BellSouth
Corp., 334 F.3d 941, 951 (11th Cir. 2003) ("A court's inherent
power to disqualify an attorney . . . is rooted in concern for the
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integrity of the judiciary and the public's perception thereof. It
does not further those ends to punish only successful attempts at
tampering with the judicial process . . . ."). Moreover, given the
supported finding that he lied, it follows that he destroyed the
only evidence of what he actually wrote on the notepad. Hornbook
spoliation principles dictate an adverse inference that he did
attempt to coach his witness. See Blinzler v. Marriott Int'l,
Inc., 81 F.3d 1148, 1158-59 (1st Cir. 1996) ("When a document
relevant to an issue in a case is destroyed, the trier of fact
sometimes may infer that the party who obliterated it did so out of
a realization that the contents were unfavorable.").
Ryan's account of the events and his actions during the
deposition do not inspire confidence in his truthfulness. If all
he had written was the court address, why not flip over the notepad
and show defense counsel? Ryan's answer to this question (he would
have done so if asked) only dug a deeper hole because the
transcript shows he was invited to do so, and he refused.
We think it important, too, that Ryan's statements to the
court were not spontaneous. This was not a fleeting moment of
weakness under pressure without premeditation, later recanted.
Ryan had four hours between the time the deposition was suspended
and the status conference during which to decide what to say to the
court about what he wrote on the notepad. That he used that time
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in part to create a false document to present to the court
certainly works against him.
Ryan also complains that, in ordering the monetary
sanctions and issuing the order to show cause, the district court
cited prior conduct by Ryan in this lawsuit that reflected
unfavorably on Ryan. Specifically, Ryan had unilaterally added a
jury demand to an agreed and approved copy of an amended complaint
without notice to counsel or the court, he had threatened to use
publicity (and incorrect information) to publicly embarrass a third
party if the case did not settle, and he had included gratuitous
name-calling in a prior submission. Siupa v. Astra Tech, Inc., No.
10-10525-LTS, 2012 WL 5385681, at *1-3 (D. Mass. Oct. 31, 2012).
Ryan makes no argument that this conduct did not occur. Rather, he
argues that it was "no harm, no foul," that his client was entitled
to the jury trial he unilaterally sought to secure, that he was
"careless," and that the conduct in question was irrelevant to the
sanctions motion. We disagree. In exercising its discretion to
issue or not issue a sanction for misbehavior by counsel, the court
may certainly consider the extent to which counsel's misconduct is
aberrational. That Ryan had already staked out a position at the
corner-cutting end of the spectrum weighed in the discretionary
selection of an appropriate sanction. Nor should any lawyer
confuse the combative aggressiveness manifest in much of Ryan's
behavior with the professional resolve of an effective advocate.
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See American College of Trial Lawyers, Code of Pretrial and Trial
Conduct 3-8 (2009).
IV. Conclusion
Reduced to its nub, this is a simple, but important case.
With notice, an opportunity to be heard, and ample, very convincing
evidentiary support, the district court found that Ryan falsified
evidence and lied point blank with premeditation to the court.
Rejecting no procedure timely requested by Ryan or required by due
process, and after further notice and opportunity to be heard, the
court decided to withdraw its permission that Ryan could appear as
counsel in this case. Anyone who thinks it important that lawyers
not lie to judges would be surprised if the court had done
otherwise. We therefore affirm the orders revoking Ryan's pro hac
vice admission and imposing monetary sanctions.
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