United States Court of Appeals
For the First Circuit
No. 04-1306
IN RE: JOSÉ R. FRANCO,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
José R. Franco on brief for appellant.
May 27, 2005
Per Curiam. Attorney José R. Franco appeals an order
from the United States District Court for the District of Puerto
Rico suspending him from the practice of law before that court
for a period of 18 months. Having carefully reviewed the record
in this case, we vacate the suspension order and remand for
further proceedings.
In 2001, a former client filed a disciplinary complaint
against Franco in which she alleged that her employment
discrimination case had been dismissed with prejudice because of
Franco's failure to respond to defendant's motions. The client
alleged that she had frequently contacted Franco's office and had
been repeatedly told that her case was proceeding well. She
further alleged that two acquaintances had had similar
experiences. Upon questioning Franco subsequent to the
dismissals, the three were told that he failed to respond to the
motions to dismiss because someone in his office had misfiled the
motions and thus he was unaware of their existence.
The matter was referred to Magistrate Judge Arenas for
investigation. After taking testimony from several parties,
including the complaining witnesses and Franco, the magistrate
judge issued a report in which he found that disciplinary
proceedings were warranted because Franco "had probably violated"
several Rules of Professional Responsibility. These rules
essentially require that a lawyer act with reasonable diligence
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in representing a client, as well as keep a client reasonably
informed about the status of a matter. They also require that
the lawyer make reasonable efforts to assure that non-lawyer
assistants act in a manner compatible with the professional
obligations of the lawyer.
In response, Franco complained, inter alia, that the
magistrate judge had made reference to Franco's conduct in other
unrelated cases without fully investigating those cases.
After considering the magistrate judge's report and
"having taken judicial notice of various [unspecified] orders
sanctioning respondent," the district judge issued an order for
Franco to show cause why he should not be suspended for 18 months
from the practice of law before the court. In response, Franco
repeated his prior objections. In particular, he emphasized once
again that the magistrate judge's reference to cases beyond those
of the complaining witnesses was unwarranted.
After considering the response to the show cause order,
the district judge suspended Franco for 18 months. The
suspension was based both on the magistrate judge's preliminary
report and on the court's taking judicial notice of other cases
which were either dismissed for Franco's failure to prosecute or
in which he was fined for failure to appear at a scheduled time.
Several of the cases relied upon by the court had neither been
referred nor investigated by the magistrate judge. After his
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motion for reconsideration was denied, Franco appealed to this
court.
This court reviews a district court decision to impose
discipline for abuse of discretion. In re Cordova-Gonzalez, 996
F.2d 1334, 1335 (1st Cir. 1993). Although Franco raises several
issues on appeal, we find it necessary only to address one at
this time.
In its order imposing the 18-month sanction, the
district court explicitly relied on its judicial notice of
several cases other than those involving the complaining
witnesses. Franco was neither informed that the court would rely
on these cases nor was he given an opportunity to respond.
Moreover, most of these had not been investigated by the
magistrate judge. The district court appears, without
investigation, to have concluded from the mere fact of the
dismissals that Franco had failed in his ethical duty to act with
reasonable diligence in representing his clients.
"[A]n attorney facing discipline is entitled to
procedural due process, including notice and an opportunity to be
heard." In re Cordova-Gonzalez, 996 F.2d 1334, 1335 (1st Cir.
1993) (citations omitted). In the instant case, Franco was
neither given prior notice of the court's intention to rely on
the majority of the cases cited in the suspension order nor was
he offered an opportunity to be heard on them. Therefore, the
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district court order is vacated and the case is remanded for
further proceedings in accord with this judgment. On remand, the
court should either reach a decision based on the record compiled
during the investigation, or, if it desires to expand the scope
of the investigation to include additional cases, it should refer
the matter for further investigation, as well as provide Franco
with prior notice of its intentions and an opportunity to be
heard and to object. See United States District Court for the
District of Puerto Rico, Rule 83.5(b).
So ordered.
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