Obert v. Republic Western Insurance

United States Court of Appeals
For the First Circuit

No. 04-1525

JOSEPH OBERT,

Plaintiff, Appellee,

v.

REPUBLIC WESTERN INSURANCE COMPANY, JOSEPH J. FRATUS,
STEPHANIE FRATUS FORTE, and CARISSA FRATUS, a minor,

Defendants.
__________

ROBERT A. SHERMAN, RODERICK MacLEISH, JR.,
ANNAPOORNI R. SANKARAN, and GREENBERG TRAURIG, LLP.,

Appellants.

No. 04-1587

JOSEPH OBERT,

Plaintiff, Appellee

v.

REPUBLIC WESTERN INSURANCE COMPANY, JOSEPH J. FRATUS,
STEPHANIE FRATUS FORTE, and CARISSA FRATUS, a minor,

Defendants.
__________

ADLER, POLLOCK & SHEEHAN, P.C., ELIZABETH McDONOUGH NOONAN,
TODD D. WHITE,

Appellants.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
 Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Thomas R. Kiley with whom Nicholas Kenney and Cosgrove,
Eisenberg and Kiley, P.C. were on brief for appellants Annapoorni
R. Sankaran, Robert A. Sherman and Greenberg Traurig, LLP.
David J. Oliveria for appellants Adler, Pollock & Sheehan,
Inc., Elizabeth McDonough Noonan and Todd D. White.
Peter J. Linn, James A. Murphy and Murphy, Pearson, Bradley &
Feeney on brief for appellant Roderick MacLeish, Jr.
Max Wistow with whom Stephen P. Sheehan and Wistow & Barylick
Incorporated were on consolidated brief for appellee.

February 18, 2005
 BOUDIN, Chief Judge. This is a set of consolidated

appeals by five lawyers and two law firms from orders of the

district court revoking the pro hac vice status of two of the

lawyers and making adverse findings yet to be described, with

sanctions, based on violations of pertinent ethical rules and other

constraints on attorney practice. Pertinent litigation dates back

to 1987 but the principal events underlying this appeal are

discussed in greatest detail in three decisions in this case.1

We begin with a skeleton outline of the events. In 1987,

Joseph Fratus and others brought a diversity suit ("the Amerco

case") against Joseph Obert and others in the federal district

court of the District of Rhode Island to recover for injuries

arising out of an automobile accident in 1985. See Fratus v.

Amerco, CA No. 87-364-b. See also Fratus v. Amerco, 575 A.2d 989

(R.I. 1990) (on certification to the Rhode Island Supreme Court).

Fratus had been hit by a rented U-Haul truck driven by Obert, who

was then working for American Drywall Company, driving incident to

his employment. Republic Western Insurance Company was U-Haul's

insurer.

1
Obert v. Republic W. Ins. Co., 190 F. Supp. 2d 279 (D.R.I.
2002) (decision on disqualification); 264 F. Supp. 2d 112 (2003)
(magistrate judge's report and recommendation on violations and
sanctions); 264 F. Supp. 2d 106 (2003) (memorandum and order of
district court on violations and sanctions). See also Sankaran
aff. excerpted in the appendix to this decision (“Sankaran aff.”).

-3-
 In the Amerco case, presided over by then-Chief Judge

Francis Boyle, the jury awarded the Fratuses over $3 million

against Obert, Drywall and U-Haul, but U-Haul was thereafter

exculpated under state law. Republic Western was nevertheless

deemed liable for minimum insurance coverage under Rhode Island

law, which was then $25,000.

In 1994, new litigation ("the Fratus case") developed in

the district court, again before Judge Boyle. See Fratus v.

Republic W. Ins. Co., 963 F. Supp. 113 (D.R.I. 1997), aff’d in part

and remanded, 147 F.3d 25 (1st Cir. 1998). Fratus claimed that

Republic Western owed $25,000 under mandatory insurance coverage,

interest on the entire Amerco judgment against Obert, and further

payments based on certain Republic Western umbrella policies issued

to U-Haul that allegedly made Obert an insured. Judge Boyle found

in Fratus’ favor on the first two claims but not on the third. On

cross-appeals, this court upheld the interest award with an

adjustment but remanded for further proceedings on the umbrella-

policy coverage issues.

On remand, the case was randomly reassigned to Judge

Ronald Lagueux, Judge Boyle having taken inactive senior status.

There was extensive further discovery relating, inter alia, to the

coverage issue and the alleged back-dating of an endorsement by

Republic Western. After two years and shortly before trial,

Republic Western settled with the Fratuses–-but without any release

-4-
of the Fratuses’ claims against Obert–-leaving Obert still liable

for the unpaid portion of the original judgment in the Amerco case

as identified above.

On July 3, 2001, Obert filed the present lawsuit ("the

Obert case") in the federal district court in Rhode Island against

Republic Western and others, claiming, inter alia, that the insurer

allegedly breached various duties to Obert. On the same day,

Republic Western filed an action in the federal district court in

Massachusetts seeking a ruling that Obert was not an insured under

the previously mentioned umbrella policies issued by Republic

Western to U-Haul. The latter action was assigned to Judge

Nathaniel Gorton, then sitting in Worcester, Massachusetts.

When the Obert case was filed in Rhode Island, Republic

Western obtained representation from three lawyers from the Boston

office of Greenberg Traurig, who appeared pro hac vice: Robert

Sherman, Roderick MacLeish, Jr., and Annapoorni Sankaran. Two

other lawyers, Elizabeth Noonan and Todd White, both of the

Providence firm of Adler, Pollock & Sheehan, acted as local

counsel. Obert was represented primarily by Max Wistow of the

Providence firm of Wistow & Barylick.

The Obert case was randomly assigned to Judge Mary Lisi,

but two days later Obert's attorney filed an amended civil cover

sheet designating the two earlier lawsuits (the Amerco and Fratus

cases) as related cases. 190 F. Supp. 2d at 287; 264 F. Supp. 2d

-5-
at 119-20. The clerk's office then reassigned the Obert case to

Judge Lagueux, who had succeeded Judge Boyle in the Fratus case.

190 F. Supp. 2d at 289; 264 F. Supp. 2d at 120. Republic Western's

counsel apparently were not sent the amended cover sheet or

immediately notified of the transfer and were unaware of the

precise way in which the transfer had come about.

On August 3, 2001, Obert filed a motion in the Obert case

for a temporary restraining order and preliminary injunction to bar

Republic Western from pursuing its lawsuit in Massachusetts.

Within a couple of days, Sankaran was advised by Wistow that Judge

Lagueux had summoned counsel to appear on August 9, 190 F. Supp. 2d

at 293; 264 F. Supp. 2d at 114; the defense team had only recently

learned that Judge Lagueux was now in charge of the case. On

August 9, Sankaran, MacLeish and White attended the conference held

in Judge Lagueux's chambers. 190 F. Supp. 2d at 293; 264 F. Supp.

2d at 114. Wistow, representing Obert, and attorney Fred Polacek,

representing Fratus, were also present. 190 F. Supp. 2d at 293.

It was Judge Lagueux's practice to meet promptly with counsel when

a TRO was sought. 190 F. Supp. 2d at 293. No court reporter was

present.

The descriptions of the August 9 conference vary in

certain respects–-each of the five lawyers later filed an

affidavit, and Judge Lagueux's recollection appears in his own

later decision, 190 F. Supp. 2d at 293-95--but certain core events

-6-
are undisputed. Wistow spoke at some length as to why the

litigation belonged in Rhode Island; Judge Lagueux made clear his

agreement, authorizing Wistow to so represent Judge Lagueux's views

to Judge Gorton;2 and Judge Lagueux expressly declined to issue a

TRO and said that he would hold the motion for a preliminary

injunction in abeyance, pending Judge Gorton's decision as to

whether to transfer or dismiss the Massachusetts action. 190 F.

Supp. 2d at 293; 264 F. Supp. 2d at 115, 116.

The balance of the conference is harder to reconstruct.

MacLeish inquired as to how the present case came to be assigned to

Judge Lagueux, 264 F. Supp. 2d at 116, who replied that they were

related cases. See Sankaran aff’d ¶ 13. MacLeish also sought to

explain how the policy endorsement limited Obert's coverage while

Judge Lagueux resisted any effort to pursue this issue, noting that

Republic Western had previously misbehaved in relying upon a back-

dated endorsement in the earlier Fratus litigation before Judge

Lagueux. 190 F. Supp. 2d at 293-94; Sankaran aff’d ¶ 14.

Thereafter, on September 5, 2001, Republic Western filed

a motion asking Judge Lagueux to recuse himself under 28 U.S.C.

§ 455(a) (2000) on the statutory ground that “his impartiality

might reasonably be questioned” or, alternatively, to retransfer

2
Judge Lagueux recollects that he said he "could" himself call
Judge Gorton but would leave it to counsel to report his views;
three defense counsel say they understood that Judge Lagueux was
going to make such a call. Wistow and Polacek were in accord with
Judge Lagueux's recollection.

-7-
the case to Judge Lisi. Supporting memoranda relied primarily

(1) on the appearance of the assignment of the case to Judge

Lagueux allegedly in contravention of local rules, (2) on criticism

by Judge Lagueux of Republic Western in the prior litigation,3 and

(3) on the TRO/preliminary injunction proceedings and Judge

Lagueux’s supposed refusal to allow MacLeish to defend meaningfully

against Obert's motion.

The motion and the supporting memorandum bore the names

of all five defense counsel and both law firms and the signatures

of both MacLeish and Noonan. They were supported by a conclusory

affidavit from a Republic Western officer questioning Judge

Lagueux's impartiality and by the Sankaran affidavit--excerpted in

the appendix to this opinion--primarily describing the events at

the August 9 conference (which the affidavit called a "hearing").

On November 1, 2001, Judge Lagueux heard argument on the

3
In the earlier remand proceeding in Fratus, Judge Lagueux had
stated to Republic Western counsel during a hearing on May 25, 2000
(the emphasis is added):

Therefore, this motion to assert this counterclaim
for reformation is really frivolous. And if you'd done
your research, you would have known that i[t] was
frivolous. At the appropriate time in this case, I will
deal with that issue. Republic Western, it seems to me,
clearly has been dragging its feet and delaying the
ultimate resolution of this case, and is completely in a
state of lack of cooperation in doing that. And I think
sanctions will be in order when this case is finally
concluded. I'm very troubled by their attitude in this
case. Continual motions for summary judgment. And the
day of reckoning will come.

-8-
motion to disqualify, thereafter informing counsel from the bench

that he was going to deny the motion. On March 29, 2002, the judge

released a detailed opinion and order, 190 F. Supp. 2d 279,

formally denying the motion to disqualify or transfer and ordering

the three Massachusetts defense counsel to show cause why their pro

hac vice status should not be revoked. Citing several Rhode Island

ethics rules,4 Judge Lagueux found that the motion to disqualify

and supporting affidavit were "prima facie" a violation. Id. at

300. The court also invited Wistow to move for sanctions. Id.

Judge Lagueux referred the show cause order and the

sanctions motion filed by Wistow to Magistrate Judge Hagopian, who

held a two-day evidentiary hearing in June 2002. On January 17,

2003, the magistrate judge issued a report and recommendation,

which Judge Lagueux adopted with minor modifications and appended

to his own brief decision dated May 28, 2003. 264 F. Supp. 2d at

112. The decision found that MacLeish and Sankaran had violated

local ethical rules and that all five defense counsel and their

4
Under Local Rule 4(d) of the United States District Court for
the District of Rhode Island, the Rules of Professional Conduct of
the Rhode Island Supreme Court are the standard of conduct for all
attorneys practicing before the federal district court in Rhode
Island.

-9-
firms had violated Rule 11.5 All were held responsible for about

$31,000 in attorneys' fees payable primarily to Wistow.

In 2004, the parties settled the underlying litigation,

and the settlement included the payment of attorneys' fees. The

underlying case has now been dismissed. All five defense counsel

and their law firms have now appealed from the orders relating to

their conduct. In these appeals, the defense counsel and their law

firms are concerned centrally with the district court's findings of

ethical and other violations.

The settlement of the case moots the only sanctions

imposed--the award of attorneys' fees and the revocation of pro hac

vice status. However, given the substance of the underlying

rulings, the reputations of counsel are affected by the findings

that individual counsel and their firms violated state ethics rules

or Rule 11, the Rule 11 violations in this case being closely

related to the ethics rulings. An affidavit from one of the

counsel underscores the serious practical consequences of such

findings. This is sufficient to avoid mootness. See Friedman v.

Shalala, 46 F.3d 115, 117-18 (1st Cir. 1995) (collecting cases).

5
In addition to ethical rules and Rule 11, the magistrate
judge also relied tersely on 28 U.S.C. § 1927 (2000), which permits
sanctions for “unreasonably and vexatiously” multiplying
litigation. Although its standards differ slightly from those of
Rule 11, see Cruz v. Savage, 896 F.2d 626, 632 (1st Cir. 1990), what
our decision says about Rule 11 applies equally to section 1927.
For simplicity, we refer only to the former.

-10-
 The Supreme Court has instructed that review of orders

under Rule 11 is for “abuse of discretion,” but it has also said

that this encompasses correction of “legal error” or “clear error”

as to fact findings. Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 402 (1990). Such standards are familiar and no reason is

apparent why review of overlapping ethics rulings should be

markedly different. See In re Cordova-Gonzalez, 996 F.2d 1334,

1335 (1st Cir. 1993) (applying abuse-of-discretion standard to

review of disbarment).

We start with the most serious finding, namely, that

Sankaran filed an "untruthful" affidavit, which MacLeish adopted

as his own in moving to recuse Judge Lagueux. That finding was the

basis for holding that both counsel had violated various provisions

of the Rhode Island ethical rules. 264 F. Supp. 2d at 116, 117.

That finding was also a ground for concluding that both of these

counsel, and counsel White, had violated Rule 11, specifically, by

filing an affidavit that "had no basis in fact." Id. at 121.

“Untruthful” in the context of the Rhode Island ethical

rules means knowingly false. RIRPC 3.3(a)(1); In re Schiff, 684

A.2d 1126, 1127 (R.I. 1996). In our view and upon this record, the

affidavit was not knowingly false as to any material fact, although

one of the statements may well have been factually inaccurate and

another was a dubious and unattractive piece of lawyer

characterization. Four different statements were identified as

-11-
factually false by the magistrate judge, Judge Lagueux or both. We

consider them one by one.

First, both judges were highly critical of Sankaran's use

in her affidavit of the word "hearing" to describe the chambers

conference at which Judge Lagueux denied the motion for a TRO.

Probably the judges thought that use of the term lent an edge to

the further suggestion that MacLeish had not been allowed to

present his case. But the term "hearing" is commonly used to

describe oral argument on a motion. See, e.g., Fed. R. Civ. P.

12(d) (referring to oral arguments on motions as “hearings”); R.I.

U.S.D.C. Loc. R. 12(b)(same).

Here, Judge Lagueux did summon the lawyers and (reserving

for a moment MacLeish's claim that he was cut off) did hear

argument from counsel, making clear his own (Judge Lagueux’s) view

that the case belonged in his court. He said he would not grant

the TRO and would hold the preliminary injunction motion in

abeyance but made clear that the Massachusetts suit ought not

proceed. Plenty of lawyers would call this a hearing, albeit an

informal one, and no blame attaches to Sankaran for her use of the

term "hearing."

The second criticized assertion is the affidavit's

statement that "Judge Lagueux also declined to allow Republic

Western’s counsel a meaningful opportunity to be heard on the

motion for a temporary restraining order and the issue as to

-12-
whether the case should be in Rhode Island or Massachusetts."

Sankaran aff’d ¶ 12. The magistrate judge found this statement to

be "intentionally false, designed solely to mislead the court." We

think it is more fairly described as an unsound piece of lawyer

advocacy rather than a lie about a fact.

What appears to have happened at the hearing is that

Wistow argued at length that the dual law suits belonged in Rhode

Island. Judge Lagueux made clear his agreement and that Judge

Gorton should be thus informed, no TRO was required; he also

referred unfavorably to Republic Western's conduct in the Fratus

suit after MacLeish had attempted to argue the merits of that case,

but the judge permissibly rebuffed this attempt to pursue an issue

that had little or nothing to do with the venue issue or the

motions before him. On this premise, Sankaran's statement that

MacLeish was denied "a meaningful opportunity to be heard" is

simply tendentious characterization.

The third alleged untruth was Sankaran's statement that

in the course of the conference Judge Lagueux said "that he was

going to call Judge Gorton" to request the transfer. This, too,

the magistrate judge says, was asserted "falsely" and "in an effort

to mislead the Court." Why Sankaran’s statement mattered is

unclear. Everyone agrees that Judge Lagueux said that Wistow could

convey his position to Judge Gorton; possibly the notion that Judge

-13-
Lagueux would call himself suggested to defense counsel (although

certainly not to us) an unbecoming enthusiasm for the result.

Anyway, defense counsel assert that they understood Judge

Lagueux to say that he would call Judge Gorton while the

plaintiff's counsel, supported by Judge Lagueux, heard Judge

Lagueux say only that he could call Judge Gorton. The latter is

very likely what Judge Lagueux said, since "could" makes more sense

than "would" where Wistow was delegated to deliver the message.

But on this record Sankaran cannot be found to be lying when,

supported by two witnesses (and on a point of trivial or no

importance), she says she heard "would" or its equivalent.

We turn now to the finding of improper motive. As to

both Sankaran and MacLeish, the magistrate judge said in identical

language that her preparation, and his use, of Sankaran's allegedly

"untruthful" affidavit was "calculated and designed solely for the

purpose to judge-shop." Yet while “judge shopping” may be improper

in some contexts, the very purpose of a motion to recuse is to

secure a different judge.

There is no finding here, nor any evidence for that

matter, that any of the lawyers lacked belief in the merits of the

motion or possessed any purpose other than to secure recusal.

Indeed, all five lawyers joined the motion, apparently after

extensive discussion; but the magistrate judge did not even suggest

that three of them were improperly motivated. The motion would

-14-
have been madness, and not merely foolish, unless counsel believed

that it might be granted.

This brings us finally to the least serious, but best

grounded, of the charges against defense counsel, namely, that the

motion to recuse in this case was objectively frivolous and so

grounds for Rule 11 sanctions. Business Guides, Inc. v. Chromatic

Communications Enters., Inc., 498 U.S. 533, 548 (1991).6

Effectively, the motion and supporting papers said or implied that

Judge Lagueux had (1) disparaged the credibility of Republic

Western, (2) ignored local rules on relatedness, (3) expressed

willingness to talk directly with Judge Gorton, and (4) ruled on

the TRO motion with undue haste and informality and without giving

MacLeish an adequate opportunity to present the defense case.

As to the first charge, Judge Lagueux's comments were

based on what he had learned in presiding over related litigation

(the Fratus case). The law is well settled that, absent quite

unusual circumstances, a judge cannot be recused for views formed

on the basis of what he learned in court. Liteky v. United States,

510 U.S. 540, 550-56 (1994); United States v. Voccola, 99 F.3d 37,

42 (1st Cir. 1996). His comments were perhaps an ominous signal,

6
Although one of the Rhode Island ethics rules uses a
frivolousness standard akin to Rule 11, Rhode Island’s own Rule 11
uses a subjective standard, see Forte Bros. v. Ronald M. Ash &
Assocs., 612 A.2d 717, 724 (R.I. 1992), and the two Rhode Island
rules have been read together, see Goldberg v. Whitehead, 713 A.2d
204, 205 (R.I. 1998).

-15-
but neither lawyers nor litigants are entitled to tabula rasa

judges.

The second claim--that it might appear that the court

ignored local rules governing assignments-–was also without any

merit. Yes, the assignment to Judge Lagueux after the initial

assignment to Judge Lisi might initially have perplexed counsel

before the revised civil cover sheet had been furnished to defense

counsel; but that sheet was in defense counsel's hands before the

motion to recuse was filed. And while defense counsel apparently

inquired of the court clerk about case assignment policy, there is

no claim that counsel ever asked how the reassignment had occurred

in this case. Sankaran aff’d ¶ 6.

Defense counsel were free to argue that Fratus and Obert

were not "related"--either because the overlap was not sufficient

or because, based on counsel's reading of the back of the civil

cover sheet, Fratus was not related because no longer a pending

case. But whatever the merits of these arguments, and few judges

would take them very seriously given the underlying policy, their

rejection by a judge would hardly leave any reasonable appearance

of partiality.

Equally unsound is any notion that any appearance of bias

was implied by Judge Lagueux's willingness to talk directly to

Judge Gorton. The law as to such judge-to-judge contacts about

procedural issues is not well developed; and, despite defense

-16-
counsel's invocation of the sinister phrase "ex parte," judge-to-

judge contacts are not subject to the same general ban as contacts

between judge and one side's counsel in the absence of the other.

See Code of Conduct for United States Judges, Canon 3A(4) comment

(stating that proscription against ex parte communications "does

not preclude a judge from consulting with other judges").

Finally, we come to the claim that Judge Lagueux did not

offer defense counsel a fair opportunity to defend. Even if we

assume arguendo that Judge Lagueux made clear his views on the

transfer before MacLeish ever rose to speak, cf. Sankaran aff’d ¶

11, no basis for urging recusal was created. Judges often express

an initial leaning even before anyone speaks or right in the middle

of an argument. It is then up to dissatisfied counsel to dissuade

the judge from that initial leaning.

So far as we can tell, it appears that MacLeish inquired

into how the case came to Judge Lagueux, 264 F. Supp. 2d at 116,

and apparently was told, correctly, that it was because it was

related to Fratus. MacLeish also sought to show, by tendering the

buff copy of the insurance form, that Obert was not covered by the

umbrella policies. 190 F. Supp. 2d at 294. MacLeish was entitled

to try to raise the subject; but it was not relevant to the TRO or

the transfer and the judge was not required to entertain argument

on the point.

-17-
 We are left, then, with the question whether the motion

to recuse, although poorly supported and sure to fail, was

frivolous within the meaning of Rule 11. The rule requires, inter

alia, that counsel's proffered positions must be "warranted by

existing law or by a nonfrivolous argument for the extension,

modification, or reversal of existing law or the establishment of

new law." Fed. R. Civ. P. 11(b)(2). Of course, what is “existing

law” or a “nonfrivolous” argument for extension is sometimes

debatable.

In defense of their motion, defense counsel could fairly

argue that the “appearance” standard in 28 U.S.C. § 455 is itself

inherently vague. See In re United States, 158 F.3d 26, 31 (1st

Cir. 1998). Further, judges themselves differ; some recuse only

with reluctance, stressing their “duty to sit,” while others recuse

themselves more liberally out of an abundance of caution. See

United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2000). And

sometimes a multiplicity of small grounds will persuade even though

each alone is weak or insufficient. In re Martinez-Catala, 129

F.3d 213, 221 (1st Cir. 1997).

At the same time, this motion–-for reasons already

stated–-had no chance of success. Many judges would simply have

denied it, explained why it was without merit, and moved on; for

obvious reasons, judges need to be specially cautious in chilling

motions to recuse which by necessity must often focus upon the

-18-
judge’s own perceived conduct or relationships. Still, had Judge

Lagueux invoked Rule 11 and required a small payment to plaintiff's

counsel for having to write a response, this might well have passed

muster under an abuse of discretion standard.

However, it is unrealistic in the extreme to treat the

present sanctions order, in relation to its Rule 11 findings, as if

it concerned only a time-wasting motion, filed in good faith but

objectively hopeless. Counsel every day file motions that are

hopeless, just as they make hopeless objections in trials and

hopeless arguments to the judge. Perhaps a court could sanction

counsel under Rule 11 for many such hopeless motions, but doing so

routinely would tie courts and counsel in knots.

In this case, the show cause order was prompted not by a

concern that the recusal motion was objectively hopeless and so

wasted a few hours but by what were perceived to be deliberate

misrepresentations. 190 F. Supp. 2d at 299. This was the explicit

and central concern of the show cause order. A judge is entirely

warranted in pursuing suspected lies by counsel–-probably this is

done too rarely–-but it is virtually certain that this show cause

order would not have been issued absent the suspicion of deliberate

falsehoods.

More important, the magistrate judge's report and

recommendation, which provide the only extensive rationale for the

final sanctions order, are permeated by the explicit findings of

-19-
deliberate misrepresentations. These findings comprise the

groundwork for the ethical violations but they also form part of

the basis for Rule 11 sanctions against three of the attorneys; and

they color the criticism of the other two who are taken, albeit

unwittingly, to have filed a motion based upon deliberate

falsehoods. 264 F. Supp. 2d at 116, 117, 121.

Whatever alternative order might have been written, this

sanctions order is effectively about falsehoods even in its Rule 11

phase; and the finding of lies, together with the $30,000

sanction, gives the order a cast, and the Rule 11 findings a

gravity, that go far beyond any notion that the recusal request

had no chance of success. Because there were no proven lies, we

think that the Rule 11 findings cannot stand even through we agree

that the motion was objectively hopeless.

To overturn the findings is not to excuse the motion’s

content. Despite our conclusion that the motion told no literal

lies, it did by innuendo cast the assignment of the case to Judge

Lagueux in a sinister light; and it implied that the court had

unfairly treated defense counsel in the chambers conference by

improperly prejudging the transfer issue and cutting off relevant

argument. Neither the innuendo nor the implication has been borne

out.

The constraints of Rule 11 are one thing; proper self-

restraint, even in the course of zealous advocacy, is something

-20-
else. Any competent cross-examiner knows that, without telling

lies, one can often manage unfairly to impugn the integrity of an

honest witness. It is particularly a matter of regret that the

unfounded insinuations in this case were directed at a judge well

known both for his probity and for his uncommon ability.

The orders under review are modified to strike the

determinations of violations of ethical rules, Rule 11 and 28

U.S.C. § 1927 by defense counsel and their law firms.

It is so ordered.

-21-
 APPENDIX

Pertinent excerpts from the affidavit of Attorney

Sankaran:

* * *

6. On August 9, 2001, I went into the civil
clerk’s office at the United States District
Court for the District of Rhode Island and
asked the clerk at the counter how cases were
assigned upon filing. The clerk told me that
cases are randomly assigned to judges at the
time of filing based on a computer program
used by the office. On August 14, 2001, I
called the civil clerk’s office at the United
States District Court for the District of
Rhode Island and asked under what
circumstances a case could be reassigned once
it had been assigned to a particular judge
pursuant to the computer program. I was
informed that a case cannot be transferred to
another judge unless the judge originally
assigned makes such a request.

7. True and accurate copies of a letter from
Stephen Sheehan, counsel for Joseph Obert
(“Obert”), to the United States District Court
for the District of Rhode Island civil clerk’s
office dated July 5, 2001, and the Amended
Civil Action Cover Sheet are attached hereto
as “Exhibit E.” On August 17, 2001, Mr.
MacLeish and I called Mr. Wistow on the
telephone to inquire about the circumstances
surrounding the Amended Civil Action Cover
sheet. Mr. Wistow refused to provide an
explanation.

* * *

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9. On August 3, 2001, Obert filed motion for
a temporary restraining order and preliminary
injunction in this case. Elizabeth McDonough
Noonan, local counsel for Republic Western
informed me that she received the motion on
August 6, 2001. On Tuesday, August 7, 2001, I
received a telephone call from Mr. Wistow
informing me that the hearing on the motion
for a temporary restraining order would take
place on August 9, 2001, at 2:00 p.m.
Republic Western filed its opposition to
Obert’s motion on August 9, 2001, with
accompanying affidavits.

10. On August 9, 2001, I, along with Mr.
MacLeish of Greenberg Traurig LLP, and Todd
White, Esq., of Adler Pollock & Sheehan, P.C.,
appeared on behalf of Republic Western for the
hearing on the motion for a temporary
restraining order. Also present were Mr.
Wistow representing Obert and Fred Polacek,
Esquire, representing Joseph Fratus, Stephanie
L. Fratus and Carissa M. Fratus (collectively
“the Fratuses”). The hearing on Obert’s
motion for a temporary restraining order was
not held in Judge Lagueux’s courtroom, but
rather in Judge Lagueux’s chambers without a
stenographer. In addition to Judge Lagueux
and counsel for the parties, there were two
other individuals present at the hearing in
chambers who appeared to be employed by the
Court.

11. When the hearing began, Judge Lagueux
allowed Mr. Wistow to present his argument.
Mr. Wistow’s presentation took approximately
twenty (20) minutes. At the conclusion of Mr.
Wistow’s presentation, Judge Lagueux stated
that he would hold Obert’s motion in abeyance
pending the decision of Judge Gorton on
Obert’s motion to dismiss and/or transfer in
the case styled Republic Western Insurance
Company v. Joseph Obert, United States
District Court for the District of
Massachusetts Civil Action No. 01-40125 NMG
(hereinafter the “Massachusetts Coverage
Action”). Judge Lagueux also stated that he
was confident that Judge Gorton would transfer

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the Massachusetts Coverage Action to Rhode
Island and gave counsel for Obert permission
to represent to Judge Gorton that Judge
Lagueux thought that the Massachusetts
Coverage Action belonged in Rhode Island. In
addition, Judge Lagueux stated that he was
going to call Judge Gorton on the telephone
and tell him to transfer the case.

12. During the hearing, Judge Lagueux
repeated several times, without discussing the
merits as to why, “This case belongs here.”
Judge Lagueux never substantively discussed
the matters of venue and appropriate forum
which were raised in the papers filed by
Republic Western. Judge Lagueux also declined
to allow Republic Western’s counsel a
meaningful opportunity to be heard on the
motion for a temporary restraining order and
the issue as to whether the case should be in
Rhode Island or Massachusetts.

13. Also during the hearing, Mr. MacLeish
inquired as to how the Rhode Island Action was
assigned to Judge Lagueux. Judge Lagueux
stated that he was offered the case because he
was involved in related matters. He also
stated that he was the only judge who knew
anything about the case.

14. During the course of the hearing, Mr.
MacLeish attempted to show Judge Lagueux the
actual “Buff Copy” of the Rental Contract
signed by Obert. Following a brief exchange
regarding the document, Judge Lagueux stated
that Republic Western has made
misrepresentations and false statements in the
past. Judge Lagueux also repeated again that
the case belonged in Rhode Island, again
without presenting any reasons as to why and
without allowing Republic Western to be heard
on the matter, and stated that he was going to
see this case to the end.

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