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
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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.