Don’t Be Like That Guy: First Circuit Says Enough is Enough and Upholds Pulled Pro Hac

The First Circuit Court of Appeals has put out-of-town-lawyers with a taste for deposition shenanigans on notice by upholding the District Court’s decision to revoke a California lawyer’spro hac vice admission.  The District Court had found that attorney Jeffrey Ryan slipped a note to his client while she was “fumbling” for an answer, lied about it to the court, and manufactured evidence to support his lie. Without setting any precise procedural or substantive standards for the revocation of a pro hac vice admission, the First Circuit held that Ryan’s conduct warranted revocation, and affirmed the award of monetary sanctions against him.

The lesson for lawyers is quite simple: “Don’t be like that guy.”

In a November 14 ruling authored by Circuit Judge William J. Kayatta, the First Circuit concluded that “[w]ith 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.”  Ryan v. Astra Tech, Inc., No. 13-2251, 2014 WL 6090701 (1st Cir. Nov. 14, 2014).

The story began on the morning of October 24, 2012 when defense counsel tried to depose Mr. Ryan’s client, the plaintiff in a sexual discrimination case.  Defense counsel stated on the record, “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 going on a rampage, he can turn back over the notepad that he just turned over, and he can show us what he wrote on it.”  Mr. Ryan responded “Nothing that [defense counsel] said in that last statement was accurate.  100 percent false.”

Things went further downhill that afternoon before then-Magistrate Judge Leo T. Sorokin in District Court.  Mr. Ryan said he was “shocked and appalled” about the allegation, and he showed the Court a notepad containing only the courthouse address, stating that was the notepad in question.  He also responded (falsely) that defense counsel never asked to see the legal pad, claiming “All [she] had to do was ask.  I’d have handed it to her.”

Mr. Ryan must have forgotten that his statements at the deposition were transcribed.  “Unfortunately for Mr. Ryan,” Judge Sorokin wrote in a ruling on October 31, 2012, “the record establishes that defense counsel did ask.”  Judge Sorokin also heard from the court reporter, who testified that, while she could not read the note that Mr. Ryan flashed to his client, it contained text different from the page he eventually showed the Court.

Judge Sorokin’s October 31 ruling detailed a laundry list of prior chicanery by Mr. Ryan, including insulting correspondence, ad hominem attacks on counsel and witnesses, serving discovery in violation of a court order, and filing an amended complaint different from the one he was given leave to file.  The ruling ordered Mr. Ryan to pay his opponent’s costs, and to show cause why he should not have his pro hac vice admission withdrawn.  Judge Sorokin subsequently ordered that the pro hac vice admission be withdrawn, in a written decision on December 18, 2012, observing that “the First Circuit has set no guidelines for resolving such questions in this jurisdiction.”  Judge Sorokin found that Mr. Ryan had committed “flagrant ethical violations,” and violated Mass. R. Prof. C., 3.3(a)(1), (4); 3.4(a), (b); and 4.1(a) “by lying to opposing counsel, misrepresenting facts to the Court, and knowingly offering falsified evidence (i.e., the notepad) during an evidentiary hearing.” Judge Sorokin then denied a motion for reconsideration on February 5, 2013.

The First Circuit rejected a handful of Mr. Ryan’s arguments, including a claim that the revocation of his pro hac vice admission violated his right to procedural due process under the Fifth Amendment.  “To the extent due process required prior notice and an opportunity to be heard, those requirements … were satisfied by the October 31 order to show cause and the opportunities to file several written responses in the district court.”  The Court also declined to decide whether the district court should have used a “clear and convincing” evidence standard, or a “preponderance” standard.   “We need not decide today whether the court should have used an elevated standard of proof because there was clear and convincing evidence to support the court’s findings of Mr. Ryan’s conduct.”

The First Circuit weighed the totality of Mr. Ryan’s conduct, and found that even before the fateful deposition, “he had already staked out a position at the corner-cutting end of the spectrum.”  The Court observed that lawyers should not “confuse the combative aggressiveness manifest in much of Ryan’s behavior with the professional resolve of an effective advocate.”

Mr. Ryan certainly didn’t do his client any favors; she ultimately lost on summary judgment.

So remember, “combative aggressiveness” does not make you an “effective advocate.”  And don’t be like that guy.