Lawyer accused in passed-note cover-up may be bounced from case, 1st Circuit says
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A lawyer accused of showing a note to a client during a deposition and then lying about its contents won’t be able to continue as counsel in the federal case, a federal appeals court has ruled.
The Boston-based 1st U.S. Circuit Court of Appeals affirmed a magistrate judge’s decision to revoke pro hac vice admission that had allowed California lawyer Jeffrey Ryan to handle the case in Boston federal court, the National Law Journal (sub. req.) reports.
Ryan ran into trouble during an October 2012 deposition of his client in an employment case, according to the NLJ story and the opinion (PDF). As Ryan’s client was struggling to answer a question, the opposing lawyer interrupted with this objection:
“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 than going on a rampage, he can turn back over the notepad that he just turned over, and he can show us all what he wrote on it. But I will, again, be bringing up to the court that he was writing on a notepad. And when I looked at him, he turned it over.”
Ryan responded that the opposing lawyer’s statement was “100 percent false.”
The opposing lawyer asked Ryan’s client while under oath about the incident, and she said she had seen her lawyer flip over the notepad, but she didn’t look at the notepad. The opposing lawyer then announced she was calling the court and the deposition was suspended. Ryan later said on the deposition record that the notepad contained only the courthouse address.
At a status conference that afternoon, the opposing counsel sought sanctions. Ryan showed the judge a notepad containing only a courthouse address and said opposing counsel had written notes to clients in her prior depositions. He did admit flipping the notepad over, saying at first that the opposing counsel never asked to see the notepad. Pressed on why he didn’t offer to show the notepad, Ryan said he was “deeply offended” and the opposing counsel had whispered to deposition witnesses.
The court reporter at the deposition offered a different story when testifying before the judge. She said Ryan had written something on the notepad, pushed it toward his client, and flipped the notepad over when accused by the opposing lawyer. The court reporter couldn’t read what Ryan had written, but she said there were two pieces of writing on the notepad, one at the top and one further down. When the deposition was suspended, the court reporter said, Ryan left the deposition for less than a minute.
When Ryan returned, he announced that the notepad was available for viewing and placed it on the table. But the writing was not the same as the writing during the deposition, the court reporter said. The new version was missing a few words or a sentence that appeared at the pad, she said. The writing at the top was also missing on the notepad Ryan showed to the judge, the court reporter said.
Ryan’s client also testified. She said the court reporter could not have seen the notepad while she was transcribing. And the client said Ryan showed her the notepad before he left the room and it contained only a courthouse address.
The federal judge found the court reporter’s testimony was “wholly credible” and noted that the client appeared tentative when she testified about the contents of the notepad. “In short,” the 1st Circuit said, “The district court found as a matter of fact that Ryan attempted to communicate surreptitiously with his client while a question was pending at a deposition, that Ryan manufactured false evidence, and that Ryan lied to the court.”
The court ordered Ryan to pay costs of litigating the motion and to videotape future depositions, and issued an order to show cause why the court should not revoke his pro hac vice status. After a hearing, the court revoked his pro hac vice admission, and denied Ryan’s request for a rehearing.
The 1st Circuit affirmed, finding that the judge had afforded Ryan procedural protections and had relied on sufficient evidence. “Ryan’s account of the events and his actions during the deposition do not inspire confidence in his truthfulness,” the court said. “If all he had written was the court address, why not flip over the notepad and show defense counsel?”
Ryan commented on the decision in an email to the National Law Journal. “I am disappointed by the decision and I disagree with it,” he said.
