          United States Court of Appeals
                       For the First Circuit

No. 04-1334
No. 04-1360

        LEISA YOUNG, individually and in her capacity as
          Administratrix of the Estate of Cornel Young,

                             Plaintiff,

       BARRY C. SCHECK; NICHOLAS BRUSTIN; ROBERT B. MANN,

                      Respondents, Appellants,

                                 v.

     CITY OF PROVIDENCE, by and through its Treasurer, Stephen
     Napolitano; URBANO PRIGNANO, JR., individually and in his
      official capacity as Providence Chief of Police; RICHARD
 SULLIVAN, individually; JOHN RYAN, individually; KENNETH COHEN,
   individually; MICHAEL SOLITRO, individually; CARLOS SARAIVA,
                            individually,

                       Defendants, Appellees.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                              Before

                        Boudin, Chief Judge,

                 Lynch and Lipez, Circuit Judges.



     Stephen M. Prignano with whom Edwards & Angell, LLP was on
consolidated brief for appellants Barry C. Scheck and Nick Brustin.
     Lynette Labinger with whom Roney & Labinger was on
consolidated brief for appellant Robert B. Mann.
     Jametta Alston, President, Rhode Island Bar Association,
Lauren E. Jones and Jones Associates on brief for Rhode Island Bar
Association, Amicus Curiae.
     Amy R. Tabor and Hardy Tabor & Chudacoff on brief for Rhode
Island Chapter, American Civil Liberties Union, Amicus Curiae.
     Theodore M. Shaw, Director-Counsel, Norman J. Chachkin and
Miriam Gohara, NAACP Legal Defense & Educational Fund, Inc., on
motion for leave to file brief and brief of NAACP Legal Defense &
Educational Fund, Inc., Amicus Curiae.



                         April 11, 2005
             BOUDIN, Chief Judge.       In the course of a civil rights

action, the district court determined that three attorneys for the

plaintiff had violated Rule 11 of the Federal Rules of Civil

Procedure.      The court revoked the pro hac vice status of the two

attorneys who were not members of the court's bar and formally

censured one of the two.      Young v. City of Providence, 301 F. Supp.

2d 187 (D.R.I. 2004).      In this decision, we address appeals by all

three attorneys; the merits of the civil rights action are the

subject   of    the   plaintiff’s    separate      appeal    resolved     in    our

companion      decision   issued    today    sub   nom.     Young   v.   City   of

Providence.

             The civil rights action grew out of a tragedy that

occurred in January 2000 in Providence, Rhode Island.                Two police

officers (Michael Solitro and Carlos Saraiva), responding to the

scene of a nighttime disturbance at a restaurant, shot and killed

an off-duty officer-–Cornel Young, Jr., who, with his weapon drawn,

was attempting to assist them.              In June 2001, Young’s mother,

acting on her own behalf and as executor of Young's estate, brought

a civil rights action in district court asserting claims under

section 1983, 42 U.S.C. § 1983 (2000), and under state law, against

the city, various officials and the two officers.

             The case, assigned to Judge Mary Lisi, was a complex one.

This was due in part to the difficulty in reconstructing exactly

what had happened in the nighttime encounter, in part to the


                                      -3-
different tiers of liability asserted against various defendants

(direct, supervisory and municipal) and in part to plaintiff's aim

to show a pattern or policy of incompetent hiring and inadequate

training.    Both Barry Scheck and Nicholas Brustin of the New York

firm of Cochran, Neufeld & Scheck LLP were admitted pro hac vice to

represent the plaintiff; Robert Mann of the Providence firm of Mann

& Mitchell acted as local counsel. Scheck was admitted, to replace

his partner Johnnie Cochran, Jr., only in September 2003--shortly

before a “phase I” trial was to begin focusing on the conduct of

Solitro and Saraiva.

            The litigation was the subject of extensive publicity;

among other facets, the officers who fired the shots were white

while Cornel Young was black (and the son of a senior Providence

police officer).         Scheck, who acted as lead counsel after his

admission,    was   at   odds   with    the   district    judge   over   various

matters, including the division of the trial into two phases.                Yet

the incident that gave rise to the Rule 11 findings, censure and

revocation of pro hac vice status was narrowly focused and arose

against the following background.

             By   September     2003,     extensive      discovery   had    been

conducted.    One of the issues in the discovery, and in the ensuing

trial, concerned the precise movements of Cornel Young and of

Solitro.     The former had been inside the restaurant; Solitro and

Saraiva had approached the building through the parking lot to find


                                        -4-
a man (later identified as Aldrin Diaz, who had caused an earlier

disturbance) pointing a gun out of the window of a Chevrolet Camaro

parked in the lot in front of the restaurant.       Solitro broke cover

and started toward the car.     Young, moving to assist, emerged from

the restaurant with his own weapon drawn and was shot by Solitro

and Saraiva.     Just where Young and Solitro had stood and moved had

a bearing on who was at fault in the episode.

           During discovery, Solitro had drawn a line indicating his

own movement in relation to other physical landmarks including the

Camaro; the line was drawn on a clear overlay laid atop a made-to-

scale diagram prepared by the state attorney general in his own

investigation.     Scheck planned to rely importantly on the diagram

in his opening to explain to the jury the defense version of what

had happened.     However, in September 2003, out-takes filmed by a

local TV station on the night of the shooting became available and,

from   defense   counsel's   viewpoint,   raised   questions   about   the

accuracy of the diagram–-at least as to the location of the Camaro.

Until then it had apparently been expected that both sides would

agree to the admission of the diagram.

           At the final pre-trial conference on September 19, 2003,

the district court was told briefly that there was a dispute about

the diagram.     Defense counsel later recalled advising Brustin on

September 25 or 26 of the specific discrepancy but Scheck later

said that he did not fully understand the problem until October 7,


                                  -5-
2003, when the jury was being selected.    Defense counsel then told

the district judge that the defense objected to the diagram as

inconsistent with photographs made from the out-takes, and the

judge responded that the parties should confer to see whether they

could stipulate as to the matter.      The judge told plaintiff's

counsel: "If you can't agree to a stipulation on that, then I'm

going to have to tell you to stay away from it because you're going

to need testimony to explain it to the jury."

          Scheck then offered as a compromise to stipulate that the

diagram conflicted with photographs made from the film out-takes,

but the next morning defense counsel declined the offer.     Scheck

again sought unsuccessfully to persuade the judge that he ought to

be allowed to refer to the diagram in the opening.    Then, with the

opening statements about to begin, Scheck signed a stipulation

drafted by defense counsel that the diagram was inaccurate as to

the location of the Camaro and that the actual alignment of the car

was as described in the stipulation.      On this basis, Scheck was

allowed to use the diagram in the opening, but he was not allowed

thereafter to elicit testimony contradicting the stipulation.

          Over the next several days of trial, further examination

of the photographs persuaded Scheck and his colleagues that the

out-takes did not contradict the diagram.      A young associate at

Scheck's firm was told to draft a memorandum to support a motion

seeking relief from the stipulation on grounds of mistake.       The


                               -6-
memorandum was filed with the court on October 16, 2003 in mid-

trial, after being reviewed and then signed by all three counsel–-

Scheck, Brustin and Mann.1   That same morning the judge directed

counsel to re-read the memorandum, saying that she was disturbed by

representations made in the memorandum, "particularly as they

relate to the actions of the court."

          The memorandum, set forth in full at 301 F. Supp. 2d at

199-204, started with an introductory paragraph that conflated the

earlier events by saying that counsel had believed prior to trial

that the diagram could be used at trial and then continued:

          It was only on the eve of opening statements,
          once plaintiff had prepared her entire opening
          based on that stipulation, that defendants
          first said they would not stipulate to Exhibit
          18, based on two new photographs they had
          found, Exhibits X and Y. Plaintiff, moments
          before her opening, was informed by the Court
          she had to agree to defendants’ stipulation.
          Plaintiff was genuinely confused about the
          import of photographs X and Y.     Plaintiff's
          opening relied critically on using that
          exhibit to explain events to the jury.      In
          this state of confusion and uncertainty,
          plaintiff felt little choice but to accept any
          stipulation defendant provided.

Id. at 200.

          Thereafter, the memorandum provided a much more detailed

recitation of events, together with legal arguments to justify

relief from the stipulation entered into in such circumstances.


     1
      A further version, correcting typographical errors, was filed
later that day. The differences between the two versions are not
material to these appeals.

                               -7-
Later, the memorandum blamed defense counsel for rejecting Scheck's

October   7     compromise    stipulation,          adding    that   "[u]nder   the

circumstances, plaintiff had no choice but to sign a stipulation

without any chance to review the photographs at issue.”                     Id. at

208. It there quoted a well known treatise that "'courts will look

at the facts carefully to see that one litigant has not been

coerced into the stipulation.'"           Id. at 208 n.5 (quoting 22 Wright

& Graham, Federal Practice and Procedure § 5194 (1978)).

             After filing the motion and then hearing the judge's

statement      that   she    was     disturbed       by     its   representations,

plaintiff's counsel returned to their office after the trial ended

for the day and, assertedly unable to determine what had so

troubled the judge, prepared a letter of general apology, which was

immediately delivered to court. It apologized for any misstatement

and said that "we do not seek to shift responsibility to the Court

[for   the     stipulation],       and   if    we    have    created   a   contrary

impression, we are sorry."               It did not withdraw any specific

statement; plaintiff's counsel's position is that at that time they

did not fully appreciate what had so concerned the district judge.

              The following morning, during argument on the motion for

relief from the stipulation, the judge made clear her view that

"the reference [in the memorandum] to the Court instructing you

that you had to stipulate is, again, a misrepresentation."                   Scheck

now sought to explain that he had been misunderstood, but the judge


                                         -8-
denied the motion for relief from the stipulation.     Later that day

the court called counsel before it and ruled that, based on the

memorandum's misrepresentation, the pro hac vice admissions of

Scheck and Brustin were revoked.      Mann was directed to proceed to

represent plaintiff at the trial.        The trial proceeded to its

completion and to a final judgment on February 12, 2004.

           After the trial but before final judgment was entered,

the district court on November 7, 2003, issued a show cause order

to the three plaintiff's counsel.      The order said that all three

counsel had violated Rule 11(b)(3)2 and directed the parties to

show cause why sanctions should not be imposed.      Counsel filed a

memorandum and affidavits arguing that they had had no deceptive

intent and that, read as a whole and in context, their memorandum

asking to withdraw the stipulation had not misrepresented any

facts.    The Rhode Island Bar Association filed an amicus brief in

support of the lawyers; the ACLU also sought unsuccessfully to do

so.

           On December 15, 2003, the district court held hearings on

the show cause order, first agreeing to modify the show cause order

to say only that it "appears" that plaintiff's counsel had violated



      2
      This provision requires that in every pleading, or motion or
other filing counsel's signature is a representation that "the
allegations and other factual contentions have evidentiary support
or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or
discovery.”

                                -9-
Rule 11.   On February 11, 2004, the court issued an order finding

that all three counsel had violated Rule 11.             In describing the

background,    the   February   11   order   pointed     out   that   defense

counsel's version of events suggested that plaintiff's counsel had

enjoyed more detailed and specific warnings that the defense

disputed the accuracy of the diagram than had previously been

advertised.    However, the judge did not resolve any disputes on

this score or rely upon such omissions in finding the Rule 11

violations.

           Rather, the Rule 11 findings focused solely upon two

specific "misrepresentations" in the memorandum: one was the above

block-quoted     language   including        the   key     statement     that

"[p]laintiff, moments before her opening, was informed by the Court

she had to agree to defendants' stipulation."            301 F. Supp. 2d at

200.   The other was the statement that defense counsel "had no

choice" but to sign the stipulation without any chance to review

the photographs.     Id. at 208.      Both statements, said the court,

falsely indicated that the court had ordered the stipulation to be

signed; and, the court noted, the memorandum's references to

injustice and coercion gave the impression that the court was

responsible for such wrongs.

           The court accepted that the memorandum had been drafted

by a young associate and that plaintiff's counsel had denied

instructing the younger lawyer to say that the court had directed


                                     -10-
the stipulation.         However, the court said that plaintiff's counsel

were responsible under Rule 11 for statements made in a memorandum

that       they   had        reviewed   and    signed.      Assessing    relative

responsibility, the court sanctioned Scheck by imposing "a public

censure," 301 F. Supp. 2d at 198; Brustin, an associate whom the

court said took direction from Scheck, was merely "admonished" to

be more careful, id.; and as to Mann, whose role was ascribed to

"inattention," id. at 199, the court said that his reputation in

Rhode Island for integrity was well established and a sanction was

unnecessary to deter repetition.

              All three of plaintiff's counsel have appealed from the

order determining that they committed Rule 11 violations, and

Scheck and Brustin have asked that their censure and admonition be

overturned and their pro hac vice status restored.                  In our view,

the Rule 11 findings are appealable, being distinguishable from

mere criticism, and, so too, the censure and admonition.3                  Nor is

the request for reinstatement of pro hac vice status moot since the

merits      appeal      in    the   civil     rights   action   keeps   alive   the

possibility of further district court proceedings.                 We turn, then,


       3
      Compare In re Williams, 156 F.3d 86, 92 (1st Cir. 1998)
(holding that "a jurist's derogatory comments about a lawyer's
conduct, without more, do not constitute a[n appealable]
sanction"), with Precision Specialty Metals, Inc. v. United States,
315 F.3d 1346, 1351-52 (Fed. Cir. 2003) (distinguishing Williams
where court found that attorney had violated Rule 11), and United
States v. Talao, 222 F.3d 1133, 1137-38 (9th Cir. 2000)
(distinguishing Williams where court found that attorney had
violated ethical rule).

                                            -11-
to the central issue-–underlying all of the requests for relief–-

whether the Rule 11 findings were justified.

             The standard that applies on review of Rule 11 orders was

established by the Supreme Court in 1990 and only recently glossed

in our decision in Obert v. Republic W. Ins. Co., 398 F.3d 138 (1st

Cir. 2005).     Formally, it is "abuse of discretion" as to either

violation or sanction; but both a mistake of law and a clearly

erroneous finding of fact constitute such an abuse.           Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 402 (1990).         In this case, defense

counsel make two principal arguments as to the Rule 11 findings:

one relates to the substantive legal standard to be applied under

Rule 11 where the court initiates the inquiry into a possible

violation; the other is whether, under the proper standard, the

objected-to statements violated Rule 11. We consider the issues in

this order.

             Rule 11(b) is not a strict liability provision. It

prohibits filings made with "any improper purpose," the offering of

"frivolous" arguments, and the assertion of factual allegations

without "evidentiary support" or the "likely" prospect of such

support.     A lawyer who makes an inaccurate factual representation

must,   at   the   very   least,   be   culpably   careless   to    commit   a

violation.      See Fed. R. Civ. P. 11(b) (requiring that factual

contentions have evidentiary support only "to the best of the

person's     knowledge,   information,     and   belief,   formed   after    an


                                    -12-
inquiry    reasonable       under    the    circumstances").            The    question

presented    by    plaintiff's      counsel's        first   argument     is   whether

something more than falsity and serious carelessness is required;

counsel contend that where the court itself initiates the Rule 11

inquiry, the conduct must involve "situations that are akin to a

contempt    of    court."      The    phrase        is   taken   from    an    Advisory

Committee's Note, to which we will return.

            This distinction urged by plaintiff's counsel is at odds

with the plain language of Rule 11.                 Rule 11(b), creating duties,

sets out the substantive obligations of counsel (e.g., that factual

claims must have evidentiary support or a likely prospect of it)

without in any way suggesting that the substantive obligations

differ depending on whether a later claim of violation is raised by

opposing counsel or the court.             Nor is it obvious why anyone would

wish such duties governing “primary conduct” to depend on who might

thereafter       raise   objections        in   a   remedial     proceeding.        Cf.

Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652,

669 (1st Cir. 1980).

          Rule 11(c), addressing sanctions, does distinguish between

the procedures that apply depending on whether opposing counsel or

the court initiates the charge.                 In the former case, there is a

safe harbor opportunity to withdraw the objected-to statement

within 21 days and thereby avoid sanctions; in the latter there is

not.   But the object of the safe harbor is to allow a party to


                                       -13-
privately withdraw a questionable contention without fear that the

withdrawal will be viewed by the court as an admission of a Rule 11

violation.        Advisory Committee's Note to Fed. R. Civ. P. 11(b) and

(c).        Nothing in the language of Rule 11(c) says that, if the court

initiates the inquiry, something more than a Rule 11(b) breach of

duty is required.

                The only hint of such a distinction as to the substantive

standard appears in the Advisory Committee's Note, which explains

the absence of a safe harbor for court-initiated inquiries as

follows: "Since show cause orders will ordinarily be issued only in

situations that are akin to a contempt of court, the rule does not

provide a [comparable] 'safe harbor' [to withdraw the objected to

statement]."         This language has, indeed, been taken by several

circuits as suggesting that only egregious conduct can be reached

where the court begins the inquiry,4 but we think mistaken any

inference that this language requires malign subjective intent.

                It is true that courts ought not invoke Rule 11 for

slight cause; the wheels of justice would grind to a halt if

lawyers everywhere were sanctioned every time they made unfounded

objections, weak arguments, and dubious factual claims.           Obert,

2005 WL 388302, at *7.        However, this is an argument for requiring


        4
      See Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255-56
   th
(11 Cir. 2003); In re Pennie & Edmunds LLP, 323 F.3d 86, 90-93 (2d
Cir. 2003); Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151,
153 (4th Cir. 2002); United Nat'l Ins. Co. v. R & D Latex Corp., 242
F.3d 1102, 1115, 1118 (9th Cir. 2001).

                                     -14-
serious    misconduct,    whoever    initiated      the   inquiry    into   a

violation–-not for distinguishing between the judge and opposing

counsel.     The "akin to contempt" language used by the Advisory

Committee's Note may well have meant only that no safe harbor was

needed because judges would act only in the face of serious

misconduct.

             A specific purpose of the 1993 revision of Rule 11 was to

reject such a bad faith requirement. See Advisory Committee's Note

saying that the amendments were “intended to eliminate any 'empty-

head pure-heart' justification for patently frivolous arguments.”

Since then only one circuit court has read the present rule to

require bad faith, In re Pennie & Edmunds LLP, 323 F.3d 86, 90-93

(2d Cir. 2003), and it did so in the teeth of a strong dissent, id.

at 93-102.    True, judges must be especially careful where they are

both prosecutor and judge; but careful appellate review is the

answer to     this   concern,   whether    the   charge   is   negligence   or

deliberate dishonesty and whether it is contempt or a Rule 11

violation. If anything, opposing counsel has far greater incentive

than the trial judge to invoke Rule 11 for slight cause.

             We come, then, to the question whether the two objected-

to statements in the memorandum were false and, if so, sufficiently

careless to warrant sanction. The trial judge read both statements

to suggest that the court had forced plaintiff's counsel to sign

the stipulation.      In our view, read as a whole, the memorandum


                                    -15-
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 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, so the issue of carelessness disappears.

            The   first   paragraph    of    the   memorandum   (block-quoted

above) did say that plaintiff was informed at the opening that "she

had to agree to defendants' stipulation," omitting to add the

phrase "in order to use the diagram in the opening argument."                But

the memorandum soon makes it explicitly clear that the judge

required the stipulation only in the sense that it was a condition

of using the diagram in the opening.               Describing the events of

October 8 after defense counsel rejected Scheck's stipulation, the

memorandum states:    "The Court instructed plaintiff again that the

exhibit could be only used under stipulation."

            As for the second quotation objected to by the judge--the

statement that "plaintiff had no choice but to sign a stipulation"

--the memorandum did not assert that the judge had directed Scheck

to sign; indeed, the statement followed immediately after the

memorandum’s statement that defendants had rejected the Scheck

stipulation    "minutes    before     the    opening"   (in   which,    as   the

memorandum had already explained, the diagram was crucial to

Scheck's    planned   presentation).           “Forced”   refers   to    these


                                      -16-
circumstances and not to any directive from the judge that Scheck

sign the stipulation.

          The main problem in this memorandum is that in the

introductory summary the drafter took as an unexplained premise

what the lawyers and the judge full well knew:       that the judge had

made clear,   before   the   fatal   stipulation   was   signed,   that   a

disputed document could not be used in the opening argument absent

a stipulation.   Yet, as we have just seen, even this premise is

made explicit later in the memorandum.       The general rule is that

statements must be taken in context, United States v. Moran, 393

F.3d 1, 16 (1st Cir. 2004), and that related parts of a document

must be taken together, Nadherny v. Roseland Property Co., 390 F.3d

44, 49 (1st Cir. 2004).      That a hasty reader might take the first

paragraph out of context is not in the present circumstances enough

to brand the memorandum as false.

          We are not suggesting that a deliberate lie would be

immune to sanction merely because corrective language can be found

buried somewhere else in the document.       But here the trial judge

did not find, and in these circumstances could not have found, that

defense counsel had intended to deceive.           The memorandum was

drafted under pressure, by a younger lawyer not admitted as counsel

in the case; and it was reviewed and signed by Mann, whose

established reputation and integrity the opinion praises, and by

Brustin, whose trial conduct is also approved of by the judge in


                                  -17-
her decision.      Nor, of course, can anyone suppose that the judge

would have been misled as to what she herself had earlier directed.

                As it happens, the memorandum may otherwise have been

misleading or inaccurate in certain of its detail.             If one accepts

the account of defense counsel at the show cause hearing, the

memorandum left out both the fact of prior warnings from defense

counsel that they were concerned about the diagram and the fact

that the photographs themselves were furnished to Brustin on

September 25 or 26.         By omitting such detail, the memorandum

enhances the “surprise” element tincturing the memorandum’s gloss

on the events of October 7 and 8 ("for the first time," "last

minute choice").        Further, assuming that the photographs were

provided on September 25 or 26, the memorandum’s statement that the

stipulation      was   signed   "without   any   chance    to    review    the

photographs at issue" is doubtful; perhaps Scheck meant only that

he had not focused on the issue but it would have been better to

say that.

            However, the district court made no definitive findings

as to what warnings were given and when.         The basis for the Rule 11

charges   was    the   suggestion   that   the   judge   had    required   the

stipulation.     We also do not know how far defense counsel had gone,

prior to receiving the out-takes, in leading plaintiff's counsel to

believe that the diagram was common ground.           Nor can we tell how

far Scheck was involved in trial preparations before his last-


                                    -18-
minute pro hac vice appearance.             The final period before a large

trial, like the trial itself, involves late nights, multiplying

tasks and resulting confusions that are hard to imagine for one who

has not experienced them.               The burden upon the trial judge is

scarcely less.

              The district judge is well known for both patience and

care.     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.                 But on a close reading

and a consideration of all the circumstances, the memorandum taken

as a whole did no more than say, albeit inartfully, that the trial

judge had required the stipulation to be signed as a condition of

using the diagram in the opening.

              Accordingly,        the   findings    that       plaintiff's   counsel

violated Rule 11 cannot stand; and, as those findings are the only

grounds for the censure, admonition and revocation of pro hac vice

status,      they   too    must   be    undone.     The    findings     of   Rule   11

violations are set aside, the sanction and admonition are vacated,

and the pro hac vice status of Scheck and Brustin is restored.                      No

costs.

              It is so ordered.




                                         -19-
