772 F.3d 50
1st Cir.2014Background
- During an October 24, 2012 deposition, defense counsel accused pro hac vice attorney Jeffrey Ryan of sliding a notepad with a written note to his client while she was answering a question; Ryan flipped the pad over when accused. The deposition was suspended and the parties brought the matter to the court.
- At a same-day status hearing Ryan produced a notepad he said contained only the courthouse address and denied writing anything improper; the court reporter testified that the pad originally had additional writing that was missing when Ryan later produced the pad.
- The district court found the court reporter wholly credible, concluded Ryan wrote a note, flipped the pad to shield it, left briefly and returned with an altered pad, and knowingly presented false evidence and false statements to the court.
- The court imposed monetary discovery sanctions, ordered Ryan to show cause why his pro hac vice status should not be revoked, and after written submissions revoked Ryan’s pro hac vice admission and denied reconsideration and a further evidentiary hearing.
- Ryan appealed, arguing the district court failed to follow Local Rule 83.6(5), violated due process in revoking pro hac vice status, and that the evidence was insufficient to support the findings and sanctions.
Issues
| Issue | Plaintiff's Argument (Ryan) | Defendant's Argument (Court/Defendants) | Held |
|---|---|---|---|
| Whether Local Rule 83.6(5) mandatory referral/hearing procedure was required before revoking pro hac vice status | Court failed to follow the detailed Local Rule procedure; that procedure was required | Local Rule procedure is discretionary or not invoked here; Ryan never requested it below | No plain error; Ryan never asked for the Local Rule process and the rule’s mandatory application is unclear, so revocation was permissible |
| Whether revocation violated procedural due process (notice, hearing, evidentiary hearing, recusal) | Ryan lacked adequate prior notice of revocation, needed an evidentiary hearing and judge should have recused or referred | Ryan received an order to show cause, multiple full written opportunities to respond, and the court reconsidered de novo; no recusal warranted | No due process violation; notice and opportunity to be heard were satisfied and no timely request for further hearing/details was made |
| Whether evidence supported findings that Ryan lied and presented falsified evidence (standard of proof) | Insufficient evidence; if heightened standard required, court did not apply it | Court credited the court reporter and found compelling evidence of alteration, lying, and spoliation; standard need not be elevated | Evidence (court reporter’s testimony, timeline, altered notepad) supported findings by at least clear and convincing weight; credibility findings not clearly erroneous |
| Whether sanctions (monetary and revocation) were disproportionate | Sanctions excessive given conduct; prior conduct cited was irrelevant | Court could consider pattern of repeated misconduct and integrity of proceedings; revocation justified to protect process | Sanctions and revocation were within the court’s inherent power and not an abuse of discretion |
Key Cases Cited
- Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (courts have inherent power to discipline attorneys and sanction)
- Johnson v. Trueblood, 629 F.2d 302 (3d Cir. 1980) (some notice and opportunity to respond required before revoking pro hac vice)
- Agosto-Vega v. United States, 731 F.3d 62 (1st Cir. 2013) (inherent-power sanctions reviewed for abuse of discretion; caution required)
- In re Cordova-González, 996 F.2d 1334 (1st Cir. 1993) (due process in attorney-discipline context; review for abuse of discretion)
- Belue v. Leventhal, 640 F.3d 567 (4th Cir. 2011) (pro hac vice attorneys entitled to notice and opportunity to be heard)
- Lasar v. Ford Motor Co., 399 F.3d 1101 (9th Cir. 2005) (notice and opportunity sufficient; additional safeguards not required)
- Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148 (1st Cir. 1996) (adverse inference for destruction of relevant documents)
- In re BellSouth Corp., 334 F.3d 941 (11th Cir. 2003) (disqualification and sanctions protect integrity and public perception of judiciary)