          United States Court of Appeals
                       For the First Circuit

No. 04-1831
    04-1861

               MARY CHRIS SHEPPARD; ROBERT SHEPPARD,

              Plaintiffs, Appellees, Cross-Appellants,

                                 v.

  RIVER VALLEY FITNESS ONE, L.P. d/b/a RIVER VALLEY CLUB; RIVER
  VALLEY FITNESS ASSOCIATES, INC.; JOSEPH ASCH; ELIZABETH ASCH;
                    RIVER VALLEY CLUB GP LLC,

                            Defendants,

                       W. E. WHITTINGTON IV,

                     Appellant, Cross-appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]



                               Before

          Torruella, Lipez, and Howard, Circuit Judges.


     W. E. Whittington IV for appellant/cross-appellee.
     Kelly E. Dowd, with whom Upton & Hatfield, LLP, was on brief,
for appellees/cross-appellants.



                          October 21, 2005
            LIPEZ, Circuit Judge.      This is an appeal of a monetary

sanction that was imposed by the magistrate judge on defendants'

lawyer, William E. Whittington IV, for discovery misconduct.            The

court required that Whittington personally compensate the opposing

parties for the attorney's fees and costs incurred in opposing a

protective order that he had obtained.        Citing the injury to his

professional reputation, Whittington also appeals certain findings

of fact made by the magistrate judge in support of the monetary

sanction. The district court affirmed the sanction and most of the

findings.    After a careful review of the record, we affirm the

sanction but vacate a finding that the district court affirmed.

                                      I.

            To explain the genesis of the sanction and findings, we

must review the history of the underlying case.        River Valley was

a health club located in Hanover, New Hampshire.         In early 1999,

Mary C. Sheppard, the principal plaintiff in this case, brought a

claim of sexual harassment against defendants (in essence, the club

and its owners, Joseph and Elizabeth Asch) for offensive incidents

she said she experienced while working at the club.           The club's

manager, Robert Aubin, filed a lawsuit of his own, alleging that he

was fired in retaliation for reporting Sheppard's complaints about

harassment.1     In   both   cases,    defendants   denied   all   of   the



     1
       That suit, Aubin v. River Valley Fitness One, LP, was
assigned to a different district-court judge.

                                  -2-
allegations and filed counterclaims against Sheppard and Aubin,

accusing them of conspiring to fabricate their lawsuits.             In early

2000, the two cases were consolidated for discovery.

           In August 2000, defendants and Aubin discussed settling

their dispute (and, shortly thereafter, did settle).           The sanction

in this case and the findings all derive from three instances in

which Whittington made claims about the settlement process in the

Aubin case.

A.   Whittington's statements to the Aubin court on August 21, 2000

           On August 15, 2000, Whittington sent a letter to Aubin's

counsel   to,   as   the   letter   put   it,   "summarize   our   settlement

discussions."    The letter opened by stating that "[t]he parties

will settle on the following terms (subject to details being worked

out on the open items below)."            The letter provided that "Aubin

would agree to a stipulated judgment of $50,000" in River Valley's

favor, but that Aubin need pay only $100 of that amount for release

and satisfaction. Also, because River Valley was keenly interested

in getting information from Aubin to help with its dispute with

Sheppard, Aubin would provide details of his discussions with

Sheppard about their claims.          In addition, River Valley wanted

corroborating information and documents from two other people,

Barney Brannen and Jack Panzica, who River Valley believed were

involved with the alleged conspiracy against it; to that end, River

Valley had asked the court for subpoenas.           The letter stated that


                                     -3-
the parties would not file the stipulated settlement with the court

until after deposing those two witnesses.                In the meantime, the

parties "will jointly inform the Court we're close to settlement .

. . and tell the Court that it would help the parties' settlement

negotiations to get a prompt ruling on the Brannen/Panzica motions,

which Aubin will now join."            Whittington stressed the importance

that River Valley placed on Aubin's information by underlining the

following sentence: "The settlement is contingent upon defendants'

satisfaction that Aubin is assisting defendants in good faith to

the best of his ability."            The letter closed by stating: "If the

above     is   satisfactory,       please   indicate    by   signing   below   and

returning a copy of this letter."           The next day, August 16, Aubin's

counsel signed her agreement and returned the letter.

               On August 21, 2000, Whittington, as promised, told the

Aubin court that the parties were close to settlement:

      The parties advise the Court that they have seriously
      discussed settlement, that they believe the prospects for
      settlement are excellent after resolution of the two
      pending motions [to get information from Brannen and
      Panzica], and that resolution of the motions will be
      helpful to the settlement process.

On October 3, 2000, having resolved the Brannen and Panzica issues2

and     having    obtained     a    satisfactory       affidavit    from   Aubin,



      2
       On August 21, 2000, Panzica's attorney told                 the court that
his client had no documents responsive to the                      subpoena.   On
September 13, 2000, the court ordered Brannen to                    turn over his
responsive documents, Brannen soon did so, and he                  was deposed on
September 29.

                                        -4-
Whittington authorized Aubin's counsel to file the stipulated

judgment with the court and release other settlement documents from

escrow. On October 4, 2000, the district court entered judgment in

the Aubin case.

B. Whittington's letter to Sheppard's counsel on October 6, 2000

           Whittington then tried to put the settlement in Aubin to

his   clients'    advantage   in    Sheppard.    On   October   6,   2000,

Whittington wrote a letter to Sheppard's counsel, informing her of

the outcome in the Aubin case.         Whittington's letter did not say

that River Valley had agreed to accept $100 as satisfaction of a

much larger judgment; the letter referred simply to the "$50,000

judgment."       Whittington wrote that it was "clear" that, when

presented with the "extensive evidence" marshaled by River Valley,

"Aubin and his counsel saw that the litigation had only one

possible outcome."     The letter explained that River Valley was now

also privy to Aubin's "inside perspective."           Referring to "the

press's continuing strong interest in the litigation," the letter

warned that Sheppard might be portrayed in an unflattering light

"once all the facts came out."        Consequently, the letter advised,

"[r]eaching a negotiated settlement promptly" would help to avoid

that unpleasant outcome.           The letter expressed River Valley's

willingness to settle for payment of $50,000 and an affidavit from

Sheppard backing up River Valley’s version of the disputed events.




                                     -5-
C.   Whittington's motion for a protective order on March 29, 2001

           Faced with Whittington's letter and wanting to see the

settlement agreement for herself, Sheppard's counsel filed a motion

to compel its production. On March 29, 2001, Whittington responded

by moving for a protective order, seeking to keep the terms of the

agreement secret.     Claiming that the settlement agreement in Aubin

had "no bearing on any of the issues in this case," Whittington

offered   to   let   the   court    review    the   documents   in    camera   to

determine for itself whether they were relevant to the Sheppard

case.     If   the   court   did     order    the   agreement's      production,

Whittington asked that access be limited to Sheppard's counsel.

           On March 30, 2001, the magistrate judge in the Sheppard

case granted the protective order to the extent that it sought

counsel's-eyes-only review of the settlement agreement.                On April

23, 2001, having now received and read the agreement, Sheppard's

counsel filed a motion for relief from the protective order,

seeking full freedom to disclose the agreement, and for "sanctions

pursuant to Rule 26(c)," which governs protective orders.

           That motion led to the sanctions at issue in this case.

On May 23, 2001, the magistrate judge ordered the settlement

agreement to be unsealed.          Referring to what it called a "lack of

forthrightness" on Whittington's part and "[h]alf-truths about the

Aubin settlement," the magistrate judge also scheduled a hearing on

"appropriate sanctions, if any."             At the end of that hearing on


                                       -6-
June 13, 2001, the magistrate judge said: "There will be at least

one sanction.    Mr. Whittington is going to demonstrate to me that

he has taken at least 10 hours specifically of CLE related to

professional conduct responsibility rules within the next three

months." Then, addressing the lawyer whom Whittington had retained

for the hearing, the magistrate judge added: "And Mr. Daschbach,

you are to tutor him with regard to how you practice law in the

State of New Hampshire and in this court."

             On September 27, 2001, the magistrate judge issued his

order   on   sanctions,   making   three   main   findings.   First,   the

magistrate judge found that "Whittington misled the court when he

argued that the Aubin settlement is irrelevant to the issues in

this case."    Aubin's agreement to cooperate with River Valley was

"directly relevant to Aubin's credibility." Second, the magistrate

judge found that "Whittington intentionally misled the plaintiffs"

in his October 6, 2000 letter "to intimidate them into a $50,000

settlement in this case."     Third, the magistrate judge found that

Whittington sought the protective order so as to "conceal his

deceptive conduct in the Aubin case" (i.e., telling the Aubin court

that the parties were merely "close" to a settlement when, in the

magistrate's view, they had already "reached a settlement in

principle").     The magistrate judge concluded that Whittington's

motion for a protective order had not been substantially justified

and ordered a monetary sanction under Fed. R. Civ. P. 37(a)(4):


                                    -7-
specifically,   Whittington     "shall   personally     compensate   the

plaintiffs for their expenses, including reasonable attorney’s

fees, incurred in connection with their opposition to and the

motion for relief from the protective order."

          On January 22, 2004, the district court affirmed the

sanction imposed by the magistrate judge.       The court also found

that the record "fully support[ed] the Magistrate Judge's . . .

findings and conclusions," with one exception.        The district court

rejected the magistrate judge's finding that Whittington sought a

protective order partly "to conceal his deceptive conduct in the

Aubin case."    Referring to Whittington's suggestion that the

magistrate judge inspect the settlement agreement in camera, the

district court noted that this was "hardly the kind of offer likely

to be made by one bent upon concealing his misconduct."              The

district court then referred the matter to the magistrate judge for

calculation of attorney's fees.

          On April 27, 2004, the magistrate judge issued an order

assessing $6,538 in fees.     On May 25, 2004, the district court

entered judgment in the case.    On June 16, 2004, Whittington filed

this timely appeal, asking that we vacate the sanctions and set

aside the magistrate judge's findings about his misconduct before

the Aubin court and in his letter to Sheppard’s counsel.

                                  II.

          We have jurisdiction to review the sanction in this case


                                  -8-
as an appeal from a final decision of the district court.                             See 28

U.S.C. § 1291.            We can review the underlying factual findings as

well.    "The imposition of a sanction on an attorney is universally

regarded       as    an       order,   and,      if     an     appellate      tribunal      has

jurisdiction         to    review      such   an      order,     its    examination      will

encompass the underlying findings."                     Williams v. United States (In

re Williams), 156 F.3d 86, 90 (1st Cir. 1998) (footnote omitted).

In certain circumstances, even factual findings by themselves

(i.e., unattached to any sanctions) can be appealed because of the

"serious       practical        consequences"         they     may     have   on    counsel's

reputation.         Obert v. Republic W. Ins. Co., 398 F.3d 138,                     143 (1st

Cir. 2005), remand order modified, 2005 U.S. App. LEXIS 4793 (1st

Cir. Mar. 24, 2005).

               "Like the district court, we review [the magistrate

judge's] factual findings under the 'clearly erroneous' rubric."

Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999).

As for the magistrate judge's decision itself, "[w]e have long

recognized that the decision as to whether discovery sanctions are

warranted and the choice of what sanctions should be imposed are

matters within the sound discretion of the trial court.                             As such,

review    of    .    .    .    discovery      sanctions        is    only     for   abuse    of

discretion."         United States v. Soto-Beniquez, 356 F.3d 1, 30 (1st

Cir.    2003),      cert.       denied,    124     S.    Ct.    2432    (2004)      (internal

quotation marks and citations omitted).                        "An abuse of discretion


                                              -9-
occurs when a material factor deserving significant weight is

ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them." Id. (internal quotation marks omitted).

In the Rule 11 context, the Supreme Court has explained that a

court "would necessarily abuse its discretion if it based its

ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence."     Cooter & Gell v. Hartmax Corp., 496

U.S. 384, 405 (1990); see also Obert, 398 F.3d at 143.            We apply

that logic to our review of the sanction and findings at issue

here.

A. Factual findings

           1. Whittington's statements to the Aubin court

           We first examine the magistrate judge's finding that

Whittington misrepresented the settlement status of the Aubin case

when he told the Aubin court that the parties were close to

settlement ("the prospects for settlement are excellent") but had

not yet settled.

           Before we reach the merits of this issue, however, we

reject at the outset Whittington's argument that the magistrate

judge   somehow    lacked   jurisdiction   to   make   findings     (which

Whittington here calls "sanctions") about his conduct in the Aubin

case.   These cases--Sheppard and Aubin--are closely related.         They

have a common defendant, River Valley.      Aubin alleged that he was


                                  -10-
fired in retaliation for reporting Sheppard's complaints about

harassment.    The cases were consolidated for discovery before the

same magistrate judge.

            True, it would be odd for Sheppard to win her attorney's

fees and costs for Whittington's conduct in a case to which she was

not a party.    However, that is not what happened here.         Sheppard

sought    compensation   for   costs     incurred   in   challenging   the

protective order in her case.      In considering that request, the

magistrate judge had to look at Whittington's conduct in Aubin to

evaluate what Whittington was trying to achieve with a protective

order in Sheppard.    Moreover, Whittington himself made the events

surrounding the Aubin settlement an issue in this case when he

decided to try to use that settlement to encourage settlement here,

too.     The magistrate judge's findings of fact, including the

finding about Whittington's conduct in the Aubin case, were all

related to his decision to impose sanctions for Whittington's

discovery misconduct in this case.

            We now examine the merits of the finding at issue.          In

his September 27, 2001 order, the magistrate judge said that

Whittington, when he told the Aubin court that the parties were

close to settlement instead of settled, had engaged in "deceptive

conduct" and "misrepresentations" before the Aubin court.              The

district court, for its part, said that Whittington’s conduct

       certainly qualifies as "sharp practice," well outside the
       boundaries of complete and full candor owed to the court

                                  -11-
     by those who practice in this district.3      At worst,
     counsel intentionally sought to mislead the court with
     regard to the actual settlement status of the Aubin case
     in order to obtain rulings on pending motions that
     otherwise probably would not have been made.

In this instance, we cannot agree with such a harsh view of

Whittington's conduct.

          First and foremost, we take seriously River Valley's

concerns, expressed in the letter to Aubin's counsel, about being

able to corroborate Aubin's testimony with information obtained

from Brannen and Panzica.      The magistrate judge dismissed that

concern, writing that "[n]othing in the settlement documents even

suggests that this is true."    But Whittington's letter to Aubin’s



     3
       The Rules of Professional Conduct of the New Hampshire
Supreme Court are the relevant ethical standards for lawyers
practicing before the United States District Court for the District
of New Hampshire. See D.N.H.R. 83.5 DR-1. All lawyers have a duty
of candor to the tribunal, which is violated by "knowingly" making
a "false statement of material fact or law to a tribunal." N.H.
Rules of Prof'l Conduct R. 3.3(a)(1).
     Although neither the magistrate judge nor the district court
referred to specific rules of New Hampshire's Rules of Professional
Conduct in their analysis of Whittington's conduct, it is apparent
to us that the rules informed their analysis of that conduct. In
their briefs on appeal, the parties also rely on those rules and
commentary to the ABA's Code of Professional Responsibility, see
infra, fn. 5, in defending and criticizing Whittington's conduct.
We also refer to the rules and that commentary in evaluating
Whittington's conduct.    However, in making his findings about
Whittington's conduct, the magistrate judge did not explicitly make
a finding that a specific rule of New Hampshire's Rules of
Professional Conduct had been violated and neither did the district
court. We take a similar approach here, focusing our analysis only
on the factual findings of the magistrate judge. As noted above,
factual findings themselves about unprofessional conduct can be the
subject of appeal because of the "serious practical consequences"
they have on counsel's reputation. Obert, 398 F.3d at 143.

                                -12-
counsel    could       hardly    have       been    clearer     when    it    stated       that

"settlement is contingent upon defendants' satisfaction that Aubin

is assisting defendants in good faith to the best of his ability."

That statement came at the end of a paragraph stressing River

Valley's interest in Aubin's "actions/discussions" with Brannen and

Panzica.        Two    paragraphs       later,       the   letter      referred       to    the

importance of "getting a ruling on the Brannen and Panzica motions,

and     defendants      receiving        their       documents       and     taking      their

depositions."           Read    fairly      in     context,     these      statements      are

evidence of River Valley's reluctance to settle until it had

exhausted       its    ability    to    corroborate        Aubin's      affidavit.          As

Whittington argues, "no prudent litigant in these circumstances

would have given up leverage by settling just before obtaining the

cooperation       it    was    bargaining          for."      Thus    it    was   fair     for

Whittington       to    characterize         the     parties     as     being     close     to

settlement after the August 15, 2001 letter, but not yet settled.

            The magistrate judge placed considerable emphasis on the

notion that the parties would have reached a settlement regardless

of what happened with the pending discovery motions.                                  At the

sanctions hearing, Whittington said that he believed that the case

would    have    settled       even    if    River     Valley    had       been   unable    to

corroborate       Aubin’s       affidavit.           But   Whittington's          post     hoc

speculation, even if accurate, does not tell us much about how

close the parties were to a final settlement.                        To the contrary, in


                                             -13-
almost any negotiation, a lawyer would presumably begin with

various ambitions that he hopes to realize in the end--a best-case

scenario, as it were.   Yet at the same time, he may be able to

concede privately that his client is still better off settling even

if it proves too difficult to secure some particular favorable

concession or other benefit.   Presumably, Whittington simply meant

that River Valley's ability to corroborate the affidavit of an

untrusted adversary was one such aim: valuable if he could get it,

but not a deal-breaker if he could not.    Importantly, Whittington

never said that River Valley would have settled if the information

from Brannen and Panzica had fatally undermined Aubin's affidavit

or critically impeached his credibility.

          We are given further pause by the magistrate judge's own

somewhat varying descriptions of the settlement status in Aubin.

At one point, for example, the magistrate judge describes the

August 15, 2001 letter as, if not a true settlement, then at least

a "settlement in principle."   A "settlement in principle" may well

have justified Whittington's statement to the court that "the

prospects for settlement are excellent after resolution of the two

pending motions."   In the same vein, the magistrate judge wrote:

"Even if the Aubin matter was not settled on August 16, it was

settled prior to the court's September 12, 2000 ruling on the

Brannen motion."    But in that case, then, it was not wrong for

Whittington to describe the parties as close to settlement on


                                -14-
August 16.    Anyway, it seems to us that a finding of ethical

misconduct,   so   fraught    with   consequences   for   a   lawyer's

professional reputation, should not rest on such fine distinctions.

If the court has trouble coming to an unqualified conclusion about

the parties' settlement status, then Whittington can hardly be

charged with telling a knowing falsehood--the standard set forth by

the Rules of Professional Conduct--under such circumstances.

           Similarly, we are reluctant to affirm a finding of

unethical conduct on the basis of a foray into contract law.       The

district court described the letter agreement as being a

     settlement subject to a few conditions subsequent. . . .
     Had those conditions not been met, perhaps defendants
     could rescind the agreement and declare the settlement
     null and void.

In the district court's view, "there was nothing of substance left

to negotiate," although in truth the settlement may not have been

"fully accomplished."    This conclusion, though--that the letter

agreement may have had some legal force--seems to us to miss the

point.   Even though the letter agreement may have been enforceable

in some circumstances, many contingencies remained.           The most

crucial legal documents--the mutual releases, Aubin's affidavit,

the stipulated judgment--had not even been drafted, let alone

signed or delivered.    In short, given the evident uncertainties

that remained, we conclude that Whittington gave a reasonably apt

summary of the situation when he advised the court that settlement

with Aubin was close.        The magistrate judge's finding to the

                                 -15-
contrary was erroneous.

          2. Letter to Sheppard's counsel

          In this second finding, the magistrate judge found that

"[i]n his October 6 letter, Whittington intentionally misled the

plaintiffs into believing that Aubin did commit to a $50,000

payment in order to intimidate them into a $50,000 settlement in

this case."4   In that letter, Whittington wrote:

     Attached please find a Stipulation to Judgment signed by
     Judge Barbadoro on October 4 in the amount of $50,000 in
     RVC’s [River Valley’s] favor in the Aubin case. It is
     clear that, when presented with the extensive evidence
     that we have compiled in support of our counterclaims
     against him and our motion for summary judgment on his
     own claims, Aubin and his counsel saw that the litigation
     had only one possible outcome.

     The $50,000 judgment, and the likelihood that it will
     soon become public, prompt us to re-visit with you the
     subject of settlement.

He then stated River Valley’s willingness to settle for "[p]ayment

of $50,000 by the Sheppards to [River Valley]," among other demands

similar to the Aubin settlement (for example, a truthful affidavit

confirming River Valley's version of events).   He never disclosed

that the true cost of the settlement for Aubin was $100.

          New Hampshire's Rules of Professional Conduct impose a

duty of truthfulness on lawyers with respect to people other than



     4
       The magistrate judge also noted that Whittington made this
representation not only to opposing counsel, but to the court as
well. In River Valley's motion for summary judgment, a footnote
referred to the $50,000 judgment without saying that it could be
satisfied for $100.

                               -16-
the tribunal.           Again, the Rules prohibit knowing falsehoods.           See

N.H.       Rules   of    Prof'l   Conduct   R.   4.1(a)   ("In   the   course    of

representing a client a lawyer shall not knowingly make a false

statement of material fact or law to a third person. . . .").                   The

commentary accompanying New Hampshire Rule 4.1 in effect at the

time states that "[m]aking a false statement includes the failure

to make a statement in circumstances in which nondisclosure is

equivalent to making such a statement."                   N.H. Rules of Prof'l

Conduct R. 4.1, ABA Model Code Comments (2000).                  The magistrate

judge's       finding      that   Whittington's     omission     constituted      a

misrepresentation is consistent with the commentary's elaboration

of Rule 4.1.5


       5
       Before the ABA promulgated the Model Rules of Professional
Conduct in 1983, which many states have now adopted wholesale or
piecemeal, the ABA had promulgated the Code of Professional
Responsibility, also known as the Model Code. Following a period
during which New Hampshire lawyers were subject to the Model Code,
the New Hampshire Supreme Court adopted the present Rules of
Professional Conduct, also known as the Model Rules, effective
February 1, 1986. There is ABA commentary to both the Model Code
and the Model Rules. Oddly, publications setting forth the New
Hampshire Rules of Professional Conduct include commentary that
accompanied the now supplanted Code of Professional Responsibility,
i.e. the "ABA Model Code Comments". Although the New Hampshire
Supreme Court has never formally adopted these comments, it has
stated that "Although the text of each rule is authoritative, the
comments are intended as guides to interpretation." Carpenito's
Case, 139 N.H. 168, 173 (N.H. 1994).
     Therefore, the Model Code commentary can inform judgments
about the professional conduct of an attorney in New Hampshire. In
fact, this is how it appears the New Hampshire Supreme Court uses
the "ABA Model Code Comments," in the wake of the switch from the
Code to the Rules.     See e.g., Carpenito's Case, supra; In re
Coffey's Case, 880 A.2d 403, 413 (N.H. 2005); In re Richmond's
Case, 152 N.H. 155, 158-59 (N.H. 2005). As we noted in footnote 3,

                                        -17-
          It is evident from the letter, read in its entirety, that

Whittington wanted Sheppard to believe that the Aubin case had

settled for a payment of $50,000.          True, Whittington did not say so

explicitly.    However, he managed to convey that impression anyway

by selecting certain words and omitting certain details with

studied precision.       As the district court wrote: "[T]he words used

(and not used) by Whittington seem carefully chosen, and, if

dissected and construed from a minimalist point of view, are

defensible    as    'literally    true.'        But   it   is   likewise    plainly

apparent that those words were meant to convey more."                  After all,

the letter's purpose--to encourage Sheppard to pay $50,000 to

settle her case--depended considerably on leaving the impression

that Aubin, in a similar position, had already committed to doing

the same thing.

          We       are   not   saying    that    Whittington     had   a    general

obligation to disclose the full terms of the Aubin settlement to

Sheppard just by mentioning the fact of the settlement.                    However,

Whittington did more than that.                He chose to disclose the face

dollar value of the judgment against Sheppard without disclosing

the real dollar value of the settlement, in an attempt to induce

Sheppard to settle on terms comparable to the Aubin judgment.


that appears to be what the magistrate judge and the district court
did here. The parties took a similar approach on appeal, and we do
the same here. (So far as we can tell, the New Hampshire Supreme
Court has not addressed the status or use of the commentary to the
ABA's Rules of Professional Conduct.)

                                        -18-
Having made that choice, Whittington had an obligation not to

misrepresent, affirmatively or by omission, the true value of the

settlement.   In other words, Whittington's overall conduct created

the very circumstances under which his failure to act, i.e. his

failure to inform Sheppard's counsel of the real dollar value of

the   settlement,   became   a   misrepresentation.   Therefore,   the

magistrate judge correctly concluded that Whittington's too-artful

words "intentionally misled the plaintiffs into believing that

Aubin did commit to a $50,000 payment in order to intimidate them

into a $50,000 settlement in this case."6


      6
        In defending his conduct, Whittington refers         to    the
following language from the ABA Model Code Comments:

      A lawyer is required to be truthful when dealing with
      others on a client's behalf, but generally has no
      affirmative duty to inform an opposing party of relevant
      facts. A misrepresentation can occur if the lawyer
      incorporates or affirms a statement of another person
      that the lawyer knows is false. Misrepresentation can
      also occur by act as well as deed. Making a false
      statement includes the failure to make a statement in
      circumstances in which nondisclosure is equivalent to
      making such a statement. Thus, where a lawyer has made a
      statement that the lawyer believed to be true when made
      but later discovers that the statement was not true, in
      some circumstances failure to correct the statement is
      equivalent to making a statement that is false.

N.H. Rules of Prof'l Conduct R. 4.1, ABA Model Code Comments
(2000).    Whittington emphasizes the statement that a lawyer
"generally has no affirmative duty to inform an opposing party of
relevant facts." Also, he asserts that the last sentence -- which
outlines a situation where a lawyer makes a statement he later
discovers to be false -- describes the only circumstances in which
a nondisclosure is equivalent to a false statement.
     The language Whittington cites -- that "[m]aking a false
statement includes the failure to make a statement in circumstances

                                   -19-
B. Monetary sanction

              In   the   magistrate    judge's     view,   Whittington's    "true

purpose for seeking the protective order" was to conceal his

unethical conduct, as the magistrate judge saw it, reflected in his

statements to the Aubin court and his letter to Sheppard’s counsel.

Like the district court, we are not persuaded by this account of

Whittington's motivations.          As the district court wrote:

       Whittington did, after all, offer to file the Aubin
       settlement documents with the court for in camera
       inspection--hardly the kind of offer likely to be made by
       one bent upon concealing his misconduct.     Whittington
       vigorously denies any such motive, and his actions
       generally support his denials, as does the general tenor
       of the record.

Also, we agree with the district court's observation that "[i]t is

highly unlikely that [Whittington] was motivated to file the motion

for protective order to conceal misconduct he did not (and still

does   not)    recognize     as    misconduct."         Moreover,   we   have   now

concluded that Whittington had no reason to conceal his statements

before the Aubin court.           In the end, however, his motivation for

seeking   the      protective     order    does   not   matter.     Whatever    his

motivation, Whittington’s arguments for the order, simply taken at


in which nondisclosure is equivalent to making such a statement" --
actually captures the wrongfulness of his conduct. The manner in
which Whittington drafted his letter to Sheppard's counsel created
a situation in which his failure to make a statement constituted a
false statement.    Simply because his own actions created the
circumstances that gave rise to his duty to disclose does not
relieve him of that duty. Finally, it is plainly obvious that the
last sentence of the paragraph is one example of a nondisclosure
that is equivalent to a false statement, not the only example.

                                          -20-
face value, were so unjustified that he must personally bear the

costs of opposing it.        The monetary sanction imposed by the

magistrate judge must therefore stand.

           Motions for protective orders are first governed by Rule

26(c), which provides for the award of expenses if the motion

fails:

      If the motion for a protective order is denied in whole
      or in part, the court may, on such terms and conditions
      as are just, order that any party or other person provide
      or permit discovery. The provisions of Rule 37(a)(4)
      apply to the award of expenses incurred in relation to
      the motion.

Fed. R. Civ. P. 26(c).     Rule 37 provides in relevant part:

      If the motion [to compel] is granted or if the disclosure
      or requested discovery is provided after the motion was
      filed, the court shall, after affording opportunity to be
      heard, require the party . . . whose conduct necessitated
      the motion [here, Whittington] . . . to pay to the moving
      party the reasonable expenses incurred in making the
      motion, including attorney's fees, unless the court finds
      that the motion was filed without the movant's first
      making a good faith effort to obtain the disclosure or
      discovery without court action, or that the opposing
      party's nondisclosure, response, or objection was
      substantially justified, or that other circumstances make
      an award of expenses unjust.

Fed. R. Civ. P. 37(a)(4)(A) (emphasis added).              In a similar

context, the Supreme Court has said that "substantially justified"

does not mean "justified to a high degree," but only "justified in

substance or in the main-–that is, justified to a degree that could

satisfy a reasonable person."     Pierce v. Underwood, 487 U.S. 552,

565   (1988)   (internal    quotation   marks   omitted)     (construing

government's obligations under Equal Access to Justice Act).

                                 -21-
           The   specific      wording    of   Whittington’s     motion     for

protective order is important.         Whittington wrote:

     3. Robert Aubin settled his claims by and against
     defendants--in a different case from this case--in a
     confidential settlement agreement.    That settlement
     agreement has no bearing on any of the issues in this
     case, and is not calculated to lead to admissible
     evidence.

     4. Settlement agreements with related parties--absent a
     showing of identity of issues or factual stipulations
     having bearing on the subsequent case--are generally held
     inadmissible as not relevant. Centillion Data Systems,
     Inc. v. Ameritech Corp., 193 F.R.D. 550 (S.D. Ind. 1999);
     Doe v. Methacton School Dist., 164 F.R.D. 175 (E.D. Pa.
     1995); Thornton v. Syracuse Saving Bank, 961 F.2d 1042
     (2d Cir. 1992); Griffin v. Mashariki, 1997 WL 756914
     (S.D.N.Y. 1997).

Whittington argues in a conclusory way that these four cases

substantially justified his position. He complains in passing that

the magistrate judge never even noted that he had cited them before

imposing sanctions.

           We have examined the cases and find them wanting.                The

general proposition for which Whittington cites them is valid.

However,   his   motion   is    more     notable   for   what   it   does   not

acknowledge: namely, that settlement agreements may be used to

impeach a witness like Aubin, whose testimony–-which, to be sure,

was supposed to be "truthful"--entitles him to a $49,900 discount

on a judgment of $50,000.7       This omission is all the more glaring

given that the first case he cites makes that very point.                    In


     7
       It appears that, for some reason, Aubin never even paid the
$100 that he owed.

                                    -22-
Centillion Data Systems, the court carefully noted that "evidence

of settlement offers and acceptances . . . may be admissible for

other purposes 'such as proving bias or prejudice of a witness.'"

193 F.R.D. at 553 (quoting Fed. R. Evid. 408).                As Whittington had

to know, that is precisely the reason why Sheppard’s counsel was

interested     in   seeing   the    settlement     agreement         for   herself.

Therefore, while Whittington may have felt no ethical concerns

about revealing his representations to the Aubin court or his

letter to Sheppard's counsel, he should not have fought disclosure

of a settlement agreement so obviously relevant to the impeachment

of Aubin's testimony in a future trial.              The magistrate judge's

call on this point was exactly right.

C. Arguments rejected for procedural defects

           At the June 13, 2001 hearing, the magistrate judge

announced that he would impose certain nonmonetary sanctions on

Whittington,    requiring    at    least    10   hours   of    CLE    credits   and

tutoring     from   Whittington's     attorney      in   ethics.           Although

Whittington says that he is appealing these particular sanctions on

several grounds, he has not preserved his right to do so.                   He did

not object to these sanctions at the hearing or shortly thereafter

in the time provided by Fed. R. Civ. P. 72(a).8                   When he filed


     8
       Rule 72(a) provides, for nondispositive rulings like this
one: "Within 10 days after being served with a copy of the
magistrate judge's order, a party may serve and file objections to
the order; a party may not thereafter assign as error a defect in
the magistrate judge's order to which objection was not timely

                                     -23-
objections to the magistrate judge's September 27, 2001 order, he

did not mention the nonmonetary sanctions at all. For that reason,

presumably, the district court did not review them in its January

22, 2004 ruling.       Neither will we.          "It is a firmly settled rule

that a party's appeal of a magistrate judge's order to the district

court delimits his right to further appellate review."                 Phinney,

199 F.3d at 3.       Whittington's failure to appeal these nonmonetary

sanctions     when    he   first   had     the    chance   prevents   him   from

challenging them now.9

            Whittington is not alone in suffering from a self-

inflicted wound on appeal. On April 12, 2004, the magistrate judge

issued his order fixing the amount that Whittington would have to

pay in attorney's fees.         Sheppard now cross-appeals that order as

being too small, but she failed to object to that order within Rule

72(a)'s time limit.        Before briefs had been filed in this case,

Whittington     moved      to    dismiss     Sheppard's      cross-appeal    as

unpreserved.    We provisionally denied that motion and ordered the


made."
     9
       According to Whittington, these nonmonetary sanctions are
less important to him than the factual findings that we have
addressed. In any event, as we explained, even if the specific
nonmonetary sanctions are not appealable, the findings themselves
are because of their effect on the lawyer's professional reputation
and because they contributed to the imposition of monetary
sanctions for Whittington's discovery misconduct in this case.
Although we have vacated the finding based on Whittington's conduct
in the Aubin case, there remained ample grounds, as we have
explained, for the magistrate judge's imposition of a monetary
sanction for discovery misconduct.

                                     -24-
parties to "address the issue raised by the motion papers in their

relevant briefs."     Sheppard completely failed to address the issue

in her opening brief, only belatedly doing so in a reply brief.

"It is well settled in this court, for good reason which need not

be rehearsed here, that a legal argument made for the first time in

an    appellant's   reply   brief   comes   too    late     and    need   not   be

addressed."    Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354

(1st Cir. 1992).        At this point, the issue raised by Sheppard's

cross-appeal has been forfeited twice-over, and we decline to

consider it on the merits.

                                    III.

            For the reasons stated, we affirm the award of a monetary

sanction assessed personally against Whittington.                 We also affirm

the    magistrate   judge's   finding   that      Whittington's       letter    to

Sheppard's    counsel    "intentionally     misled    the    plaintiffs     into

believing that Aubin did commit to a $50,000 payment in order to

intimidate them into a $50,000 settlement in this case." We vacate

the magistrate judge's finding that Whittington misrepresented the

settlement status of the Aubin case when he told the Aubin court

that the parties were close to settlement but had not yet settled.

Costs are taxed in favor of the appellee.

            So ordered.




                                    -25-
