Editor's Note: The Rhode Island federal trial court is the substitute court for NH District Court matters when the judges sitting in New Hampshire are unable to hear the cases due to conflicts.

The US Court of Appeals for the First Circuit last month reversed a finding by the US District Court, District of Rhode Island, that three attorneys had violated Rule 11 of the federal Rules of Civil Procedure in a high-profile civil rights case in that state.

The appeals court, in an opinion issued April 13 and written by Chief Judge Michael Boudin, said US District Court Judge Mary Lisi misread memos submitted by attorney Barry Scheck and his two colleagues that she believed misrepresented statements she had made to them in court. The appellate court said that no Rule 11 violation occurred, based on its reading of the memos and the circumstances under which the memos were submitted. The ruling set aside Judge Lisi's post-trial order requiring public censure of Scheck, and the immediate revocation of the pro hac vice admissions of Scheck and his associate Nick Brustin that occurred during the trial. The appellate ruling also set aside a Rule 11 violation against local counsel Robert B. Mann.

Judge Lisi had ruled that Scheck and his colleagues had filed pleadings with the court that had misrepresented statements she had made to the attorneys for both sides in sidebar conferences regarding a stipulation on disputed evidence that the plaintiffs first agreed to, and, after the trial began, asked to be withdrawn. "The trial judge read both statements [pleadings regarding the stipulation] to suggest that the court had forced plaintiff's counsel to sign the stipulation. In our view, read as a whole, the memorandum [by plaintiff's counsel] 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 [the accuracy of which was disputed by the defense] 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...."

The appellate court's decision did not address an issue of due process in Rule 11 sanctions that was raised in an amicus brief filed by the Rhode Island Bar Association. The RI Bar contended that if the court itself initiates a Rule 11 motion, there should be a higher standard-"akin to contempt"-for evaluating whether attorney conduct rises to the level of a Rule 11 violation. The amicus brief also asserted that restraint was called for since the misrepresentations were made in papers filed in the heat of a trial, and that deciding whether misrepresentations occurred should be based on the documents as a whole rather than on individual phrases or sentences-factors which were considered by the appellate court in its ruling.

While reversing the trial court on the issue, the appellate court seemed intent on restoring the peace in an acrimonious case. "The district judge is well known for both patience and care," the First Circuit opinion said. "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."

US Court of Appeals, First Circuit, No. 04-1334

The appellate court's opinion.

The Underlying Case

In the underlying case, Leisa Young, administratrix of the Estate of Cornel Young, Jr., vs. City of Providence, (naming several officials of the city police department), the First Circuit partially remanded the case, overturning Judge Lisi's summary judgment that there was insufficient evidence to hold the city officials and the police department liable for the accidental fatal shooting of an off-duty police officer by two on-duty Providence police officers. The deceased, Cornel Young, was a black police officer who, while off-duty and in plainclothes, was shot after he drew his gun as he emerged from a restaurant to a scene where the officers were confronting a suspect with a gun.

The appellate court upheld Lisi's decision that the city could not be held liable for the negligent hiring of the officers who shot Young, but the city could be tried on the issue of whether the city had not sufficiently trained the officers to handle situations involving misidentifications of an off-duty officer.

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