Yolanda Adams v. FORD MOTOR CO. Appeal from the District Court of the Virgin Islands, Division of St.…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-3950
_____________
YOLANDA ADAMS,
Appellant
V.
FORD MOTOR CO.
Appeal from the District Court of the
Virgin Islands, Division of St. Croix
(D.V.I. No. 04-cv-00053)
Magistrate Judge: The Honorable George W. Cannon
Argued December 16, 2010
Before: McKEE, Chief Judge, SMITH, Circuit Judge,
and FUENTES, Circuit Judge
(Opinion Filed: August 5, 2011)
Thomas Alkon, Esq. (argued)
Law Offices of Thomas Alkon
2115 Queen Street
Christiansted, St. Croix, VI 00820
Attorney for Plaintiff-Appellant
Ginette L. Milanes, Esq. (argued)
Office of Unites States Attorney
350 Carlos E. Chardon Street
Suite 1201
San Juan, PR 00918
Attorney for Amicus Curiae

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OPINION
McKEE, Chief Judge.
Vincent A. Colianni appeals from the magistrate judge’s
order finding that he violated ABA Model Rule of Professional
Conduct Rule 3.5 by initiating post-verdict contact with a juror. For
the reasons explained below, we hold that the judge abused his
discretion in reaching that conclusion and sanctioning Colianni for
his conduct. We further find that the judge denied Colianni’s due
process rights by not following the disciplinary procedures outlined
in Local Rule 83.2(b) of the District Court of the Virgin Islands and
by failing to give Colianni sufficient notice and an opportunity to be
heard prior to finding misconduct and imposing sanctions.
I. Factual Background and Procedural History
Appellant Yolanda Adams filed suit in the District Court of
the Virgin Islands after she suffered a serious brain injury while
driving a vehicle manufactured by Ford Motor Company. By
consent of the parties, Magistrate Judge George W. Cannon presided
over the trial in the district court. The jury awarded Adams $2.3
million in damages, and determined that she was 77.5% at fault and
that Ford was 22.5% at fault.
Vincent Colianni, Adam’s counsel of record, called one of the
jurors shortly after the trial ended to ask about the jury’s award of
damages and the assignment of fault between the parties. Colianni
apparently believed that there had been a clerical error on the verdict
form. After not being able to reach the jury foreperson, Colianni
called another juror, Alicia Barnes. Barnes asked Colianni whether
it was appropriate for her to speak with him, and Colianni replied
that it was permissible. Colianni then explained the law of
contributory negligence in the Virgin Islands, and mistakenly told
Barnes that the court could apply the negligence standard for
contributory fault as opposed to strict liability. After briefly
speaking with Colianni, Barnes told him that she felt uncomfortable
discussing the case with him and the call ended. The conversation
was very brief, lasting only about one minute. Three of Colianni’s
colleagues were in his office with him and heard the entire
conversation, which Colianni had placed on the speakerphone.

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Shortly after the call ended, Barnes contacted Magistrate
Judge Cannon and informed him that she felt the call was
inappropriate. The judge responded by asking Barnes to put her
complaint in writing. A few days later, the judge received a letter
from Barnes in which she related the circumstances of the call and
stated that she found Colianni’s conduct “reprehensible,” and
“bordering on harassment.” (App. 60). She also stated that
Colianni’s call was “the reason many are leery of serving as jurors in
our small community.” (App. 60).
Thereafter, Magistrate Judge Cannon contacted counsel for
both parties and set the matter for an immediate hearing the next
day. At the hearing, the judge began by reading the juror’s letter and
the text of ABA Model Rule 3.5 into the record. The judge then
instructed Colianni to recount his version of the telephone call and to
explain why he had reached out to the juror. Colianni responded that
he wished to ask the juror about how his client’s damages had been
calculated. Colianni further explained that he had informed the juror
that she was under no obligation to speak with him, that it was not
until he had already made his inquiries regarding the jury’s award
that the juror expressed her discomfort, and that he had immediately
ended the call once the juror said that she was uncomfortable.
Colianni acknowledged that he had mistakenly given the juror
incorrect information about the contributory negligence standard that
applied in this case.
Both parties submitted memoranda after the hearing. On May
27, 2008, the magistrate judge issued an order in which he found that
Colianni had “engaged in misconduct by his post-verdict
communication with a juror in contravention of American Bar
Association Model Rule of Professional Conduct 3.5(c).” (App. 3).
The court stated that it would not disbar, suspend, or reprimand
counsel pursuant to Local Rule 83.2(b)(3) or initiate disciplinary
proceedings pursuant to Local Rule 83.2(b)(5). Instead, the
magistrate judge referred the matter to the Virgin Islands Bar
Association for a “formal investigation and disciplinary
proceedings.” (App. 4). At a subsequent hearing, the judge denied
Colianni’s request to seal the order.
Thereafter, Colianni filed a notice of appeal to this court, but
we subsequently issued an opinion “reluctantly conclud[ing]” that
we lacked jurisdiction to review the magistrate judge’s order because

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Colianni’s appeal had been filed prior to the entry of final judgment.
(App. 80). Colianni subsequently filed this timely notice of appeal.1
II. Standard of Review and Jurisdiction
The decision to impose sanctions is a matter generally
entrusted to the discretion of the district court. Bowers v. The Nat’l
Collegiate Athletic Assoc., 475 F.3d 524, 538 (3d Cir. 2007). Thus,
we review a decision to impose sanctions for abuse of discretion. Id.
(citing Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 (3d Cir.
1995). Although this standard of review is deferential, a court
abuses its discretion in imposing sanctions when it “base[s] its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Id.; see also Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990). When the procedure the
court uses to impose sanctions raises due process issues of fair notice
and the right to be heard, the standard of review is plenary. Martin
v. Brown, 63 F.3d 1252, 1262 (3d Cir. 1993).
Adams originally filed this suit in the District Court of the
Virgin Islands, which had jurisdiction over this case pursuant to 28
U.S.C. § 1332 because the amount in controversy exceeded $75,000
and the parties are completely diverse. We therefore have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
III. Discussion
A. Standing
The government first contends that Colianni has no standing
to appeal because he did not suffer an imminent injury that can be
redressed by a favorable appellate decision. Specifically, the
government argues that Colianni does not have a cognizable injury
because the challenged order did not formally “sanction” or
reprimand him.
1 We directed the United States Attorney for the District of Puerto
Rico to appear as amicus curiae and to file a brief defending
Magistrate Judge Cannon’s order because Ford Motor Company no
longer has a stake in this litigation. We wish to thank that office for
the work it did on behalf of the court in representing the challenged
order.

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As in all cases, we must first address the issue of standing
because “[i]f plaintiffs do not possess Article III standing, both the
District Court and this Court lack subject matter jurisdiction to
address the merits of plaintiff’s case.” ACLU-NJ v. Township of
Wall, 246 F.3d 258, 261 (3d Cir. 2001) (citing Warth v. Seldin, 422
U.S. 490, 498 (1975)). Standing is the “irreducible constitutional
minimum” necessary to make a justiciable “case or controversy”
under Article III, Section 2. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). A plaintiff's “interests” satisfy Article III
when the following three elements are present:
[First], the plaintiff must have
suffered an injury in fact—an
invasion of a legally protected
interest which is (a) concrete and
particularized, and (b) actual or
imminent, not conjectural or
hypothetical. [Second], there
must be a causal connection
between the injury and the
conduct complained of—the
injury has to be fairly traceable to
the challenged action of the
defendant, and not the result of
the independent action of some
third party not before the court.
[Third], it must be likely, as
opposed to merely speculative,
that the injury will be redressed
by a favorable decision.
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 484-85 (3d Cir. 1998) (citing Lujan, 504 U.S. at 560-61).
We have previously highlighted the disagreement among the
courts of appeals about whether a court’s statement in a judicial
opinion constitutes “a legally sufficient injury to support appellate
jurisdiction.” See Bowers, 475 F.3d at 543 (internal citations
omitted). Most courts agree that mere judicial criticism of an
attorney’s conduct is insufficient to constitute a sanction which
would support standing. See, e.g., United States v. Talao, 222 F.3d
1133, 1138 (9th Cir. 2000); Williams v. United States, 156 F.3d 86,
90 (1st Cir. 1998); Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th

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Cir. 1984). On the other hand, courts nearly uniformly have held
that an order rising to the level of a public reprimand qualifies as a
sufficient sanction. See Bank of Nova Scotia v. United States, 487
U.S. 250, 263 (1988); Talao, 222 F.3d at 1138 (equating formal
finding with public reprimand and sanction); Williams, 156 F.3d at
92 (“Words alone may suffice [as sanctions] if they are expressly
identified as a reprimand.”); see also Fed.R. Civ.P. 11(c)(4)
(providing that sanctions may consist of “nonmonetary directives”).
Indeed, only the Court of Appeals for the Seventh Circuit has held
that a public reprimand is not appealable unless it is accompanied by
a monetary sanction. Clark Equip. Co. v. Lift Parts Mg.. Col, Inc.,
972 F.2d 817, 820 (7th Cir. 1992) (“[W]e have already decided that
an attorney may not appeal from an order that finds misconduct but
does not result in monetary liability, despite the potential
reputational effects.”).
There is far more disagreement among the courts about
“whether a factual finding in an opinion that an attorney has engaged
in improper conduct is itself a sanction, or whether the court must
enter an explicit order that the conduct is sanctionable.” Bowers,
475 F.3d at 543; compare Precision Specialty Metals, Inc. v. United
States, 315 F.3d 1346, 1353 (Fed. Cir. 2003) (fact that reprimand
was not explicitly contained in separate order was not determinative
of whether the court had entered a formal reprimand) and Walker v.
City of Mesquite, 129 F.3d 831, 832 (5th Cir. 1997) (factual finding
of misconduct alone is sufficient to constitute a sanction) with
Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1199 (9th Cir. 1999)
(stating that a factual finding in an opinion that “merely serves to
justify the imposition of a sanction is not an independent sanction”).
This case is unlike any that we have previously addressed.
Magistrate Judge Cannon’s order is more than mere judicial
criticism because the judge made a factual finding that Colianni had
violated ABA Model Rule 3.5(c) and the judge then referred the
matter to the Virgin Islands Bar Association for a formal
investigation and disciplinary proceedings. Moreover, the factual
finding of misconduct was not in an opinion, but in the actual text of
the order. On the other hand, the order does not constitute a formal
reprimand, because the judge explicitly stated that he did not seek to
“disbar, suspend, or reprimand counsel.” (App. 3).
We have never before determined whether a finding of
attorney misconduct in an order that is unaccompanied by a formal
reprimand or the imposition of monetary penalties constitutes a

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“sanction.” Today, we hold that, under the circumstances here, it
does. It is clear that the order directly undermines Colianni’s
professional reputation and standing in the community. Bowers, 475
F.3d at 543. That is far from an insignificant affront. “A lawyer’s
reputation is one of his[/her] most important professional assets.”
Precision Specialty Metals, 315 F.3d at 1354.2 Accordingly, “[t]he
importance of an attorney’s professional reputation, and the
imperative to defend it when necessary, obviates the need for a
finding of monetary liability or other punishment as a requisite for
the appeal of a court order finding professional misconduct.”
Walker, 129 F.3d 831; see also Talao, 222 F.3d at 1138 (noting that
a formal finding of misconduct carries the same consequences as a
reprimand, as it “is likely to stigmatize [the attorney] among her
colleagues and potentially could have a serious detrimental effect on
her career”). It is all but inevitable that the magistrate judge’s order
has adversely impacted Coliani’s reputation, particularly in a small
legal community such as the Virgin Islands. Moreover, the
reputational harm that Colianni has suffered is magnified by the
judge’s refusal to place the order under seal, thus making the order
accessible to anyone with access to an omnipresent internet
connection and even minimal familiarity with using an internet
search engine.
Furthermore, even if we assume that the order is not a
reprimand, it certainly bears a greater resemblance to a reprimand
than a comment that is merely critical of Colianni’s behavior. “A
reprimand generally carries with it a degree of formality.” Talao,
222 F.3d at 1138. That prerequisite is clearly satisfied here because
the assessment of Colianni’s conduct appears in an unsealed court
2 Indeed, there is more than a kernel of truth in Iago’s
pronouncement in Othello:
“Good name in man and woman . . .,
Is the immediate jewel of their souls:
Who steals my purse steals . . . nothing;
. . .
But he that filches from me my good name
Robs me of that which enriches him not
And makes me poor indeed.”
William Shakespeare, Othello, Act III, Scene II

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order.3 In addition, the magistrate judge’s conclusion that Colianni
violated ABA Model Rule 3.5 carries consequences that are similar
to those that flow from a reprimand. This is particularly true since
Colianni could face disciplinary action from the Virgin Islands Bar
Association if the order is affirmed and formal sanctions could be
imposed. Therefore, we conclude that Colianni suffered an injury in
fact, and thus has standing to file this appeal.
B. Whether the Court Abused Its Discretion in Finding
that Colianni Engaged in Misconduct
Colianni argues that the district court abused its discretion in
finding that he engaged in attorney misconduct in violation of ABA
Model Rule 3.5(c). He asserts that the magistrate judge’s finding
was based solely on a letter from a juror, but that neither the judge
nor the attorneys questioned the juror at the hearing. In addition,
Colianni points out that the judge never heard from the three
witnesses who were in Colianni’s office during the phone call, nor
was an evidentiary hearing ever held. The government counters by
reminding us that Magistrate Judge Cannon heard a first hand
account of the conversation between Colianni and the juror just
minutes after it occurred, and that the juror’s letter was written while
the juror was still under the emotional impact of the phone call.
Thus, the government argues the judge could have easily discerned
any inconsistencies in the letter based on his conversation with the
juror.
Rule 3.5(c) of the ABA Model Rules of Professional Conduct
states that a lawyer shall not communicate with a juror or
prospective juror after discharge of the jury if:
1) the communication is
prohibited by law or court order;
2) the juror has made known to
the lawyer a desire not to
communicate; or
3 We take no position on whether our conclusion would have
been different had the order been filed under seal. We merely
note that the fact that it was not sealed makes its harmful
impact all the more obvious.

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3) the communication involves
misrepresentation, coercion,
duress or harassment;
The comment to Model Rule 3.5 explains that “A lawyer may on
occasion want to communicate with a juror or prospective juror after
the jury has been discharged. The lawyer may do so unless the
communication is prohibited by law or a court order but must respect
the desire of the juror not to talk with the lawyer.” ABA Model Rule
3.5, cmt. 3.
We have never before addressed the type of conduct that
constitutes a violation of Model Rule 3.5(c). Indeed, the few courts
that have discussed Model Rule 3.5(c) have focused on subsection
(c)(1), where an attorney has violated a court order by
communicating with jurors. See, e.g., Diettrich v. Nw. Airlines, Inc.,
168 F.3d 961, 964 (7th Cir. 1999) (finding that the attorneys’ use of
post-verdict dialogue with jury to support motions for overturning
jury verdict was outside the scope of district court’s permission to
interview jurors informally and “invited the court to open the black
box that is the jury room.”); Johnson v. Fla., 804 So. 2d 1218, 1225
(Fla. 2001)(finding that attorney’s attempt to interview jurors was a
“fishing expedition.”).
Here, the magistrate judge did not specify either at the
hearing or in the order which subsection of the Model Rule he
believed Colianni violated. However, it is clear that Colianni did
not violate Model Rule 3.5(c)(1), which bars communication with
jurors when prohibited by law or a court order. Nothing in the
record suggests that the judge forbade Colianni or his opposing
counsel from contacting jurors after the verdict, nor do the local
rules of the District Court of the Virgin Islands prohibit attorneys
from contacting jurors post-verdict.
Similarly, it does not appear that Colianni violated Model
Rule 3.5(c)(2), which prohibits attorneys from contacting jurors who
have made clear their desire not to communicate. The juror initially
asked Colianni whether she was permitted to speak with him. Once
Colianni informed her that she could, she willingly conversed with
him, albeit only briefly before expressing her discomfort. As noted
earlier, Colianni ended the call as soon as the juror expressed that
she was uncomfortable speaking with him.

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Thus, the only remaining possibility is that the judge believed
that Colianni had harassed the juror in violation of Model Rule
3.5(c)(3). There are no cases within our jurisdiction defining what
constitutes “harassment” under Model Rule 3.5, nor do the
comments to the Rule assist our inquiry here. In such instances, we
normally look to standard reference works such as legal and general
dictionaries in order to determine the ordinary meaning of words.
United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008) (citing
Appalachian States Low-Level Radioactive Waste Comm’n v. Pena,
126 F.3d 193, 197-98 (3d Cir. 1997)). Black’s Dictionary defines
harassment as “words, conduct, or action (usu. repeated or
persistent) that, being directed at a specific person, annoys, alarms,
or causes substantial emotional distress in that person and serves no
legitimate purpose.” Black’s Law Dictionary 784 (9th ed. 2009).
However, it is inconceivable that Colianni’s conduct constituted
“harassment” under Model Rule 3.5(c)(3) under any reasonable
interpretation of that term. His actions were not repeated, as he only
called the juror once and the entire conversation lasted less than one
minute. In addition, Colianni called the juror with a legitimate
purpose, which was to understand how the jury had calculated
damages. As soon as the juror expressed that she did not wish to
speak with him, he ended the conversation. This cannot possibly
constitute harassment and the record does not support a conclusion
that Colianni’s conduct violated any other provision of the Model
Rule. Because the court “based its ruling [to the contrary]. . . on a
clearly erroneous assessment of the evidence,” Bowers, 475 F.3d at
538, we conclude that the court abused its discretion in finding that
Colianni engaged in misconduct.
C. Whether the Court Denied Colianni His Procedural
Due Process Rights Under Virgin Islands Local Rule 83.2
Colianni further contends that the court violated his
procedural due process rights by failing to follow the disciplinary
procedures as set forth in Local Rule 83.2(b) of the District Court of
the Virgin Islands. The rule provides that “when misconduct or
allegations of misconduct . . . would warrant discipline of an
attorney admitted to practice before the court shall come to the
attention of a judge of this court. . . the Chief Judge . . . shall refer
the matter to the clerk of court, who shall refer it to counsel for
investigation and the prosecution of a formal disciplinary
proceeding.” The rule also states that an order following a

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disciplinary proceeding “shall be placed under seal until further
order of the court.”
The government insists that the magistrate judge was not
required to follow Local Rule 83.2(b) because the rule applies only
to the imposition of sanctions. That argument is of little moment,
however, because as we have already explained, the magistrate
judge’s order was equivalent to a sanction. Accordingly, the
magistrate judge should have referred the allegations of misconduct
to the Chief Judge for investigation and sealed the order; it did
neither. We will therefore vacate the magistrate judge’s order for
failing to follow the local rules. See In re Abrams, 521 F.2d 1094,
1107 (3d Cir. 1975) (reversing sanctions order for failing to follow
local rule specifying disciplinary procedures).
D. Whether the Court Violated Colianni’s Due Process
Rights by Failing to Give Notice of Possible Sanctions
Finally, Colianni argues that the magistrate judge violated his
due process rights by failing to provide him with notice that
sanctions might be imposed. Colianni asserts that at the meeting that
the magistrate judge convened to discuss the juror’s letter, the judge
never mentioned that he could potentially be subject to sanctions.
After the meeting, the judge entered an order to schedule a “Hearing
on Juror’s Note.” The May 9, 2008 order made no mention of
potential sanctions against Colianni either. Colianni points out that
during the hearing on May 13, 2008, the judge expressed that he was
not happy that the juror had been contacted, but the judge never
informed Colianni that he could be subject to disciplinary
proceedings. Colianni asserts that the first time he realized that he
was being sanctioned is when he received the magistrate judge’s
order on May 27, 2008 finding that he engaged in misconduct in
violation of ABA Model Rule 3.5(c).
The government claims that Colianni was placed on notice
that his communication with the juror was improper when the judge
instructed counsel not to have any further contact with the jurors and
immediately set the matter for a hearing. The government also
points out that Colianni made specific reference to the language in
Model Rule 3.5(c) at least twice during the hearing as well as in the
memorandum that he submitted to the court after the hearing. Thus,
the government insists, the magistrate judge gave Colianni sufficient
notice that he had potentially violated Model Rule 3.5(c).

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“The Due Process Clause of the Fifth Amendment requires a
federal court to provide notice and an opportunity to be heard before
sanctions are imposed on a litigant or attorney.” Martin v. Brown,
63 F.3d 1252, 1262 (3d Cir. 1995). We have previously held that
“particularized notice is required to comport with due process” prior
to sanctioning an attorney. Fellheimer, Eichen & Braverman, P.C.
v. Charter Tech., Inc., 57 F.3d 1215, 1225 (3d Cir. 1995).
“Generally speaking, particularized notice will usually require notice
of the precise sanctioning tool that the court intends to employ.” Id.
An opportunity to be heard is “especially important” where a lawyer
or firm’s reputation is at stake because sanctions “act as a symbolic
statement about the quality and integrity of an attorney’s work—a
statement which may have a tangible effect upon the attorneys’
career. “ Id. at 1227. As noted above when we referenced the
availability of the internet, modern search engines and web sites
oriented toward allowing consumers to voice displeasure about
experiences they have had exponentially increase the impact of such
sanctions on a professional’s reputation and career. Moreover, such
complaints are not unlike a cybernetic zombie that lives on in
cyberspace long after any underlying dispute has been resolved -
even if it is resolved to the ultimate satisfaction of the consumer (or
client). See Daniel J. Solove, Privacy and Power: Computer
Databases and Metaphors for Information Privacy, 53 Stan. L. Rev.
1393, 1412 (2001) (explaining that once information appears on the
internet, it is impossible to erase it entirely because it creates “a
permanent record of unparalleled pervasiveness and depth . . . almost
everything on the Internet is being archived. . . little on the Internet
disappears or is forgotten, even when we delete or change the
information.”).
Here, it is evident that Colianni had no notice, much less
“particularized notice,” Charter Tech., Inc., 57 F.3d at 1225, about
the potential sanctions he faced prior to the judge’s order finding that
he engaged in misconduct. A review of the hearing transcript makes
clear that the judge never even hinted that Colianni would be subject
to sanctions. In addition, the fact that Colianni came to the hearing
representing himself, as opposed to obtaining an attorney, is
consistent with his claim that he did not realize the gravity of the
circumstances and had no reason to believe that he might be subject
to disciplinary proceedings.
In addition to the lack of notice, we find that Colianni did not
have sufficient opportunity to be heard. Since the judge did not

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hold an evidentiary hearing, Colianni was not given the chance to
present any witnesses to testify on his behalf. For example, Colianni
could have called the three witnesses who were in his office during
the phone call to testify about the conversation with the juror.
Moreover, the judge did not question the juror who complained
about his conduct.4 Accordingly, we find that the district court
violated Colianni’s due process rights by failing to provide him with
sufficient notice and an opportunity to be heard.
IV. Conclusion
For the foregoing reasons, we will vacate the district court’s
order.
4 Colianni also argues that due process requires that he should
have been able to question the complaining juror during a
hearing. However, given the circumstances here, we need not
determine if due process extends that far. In an appropriate
case, a court can make that determination based upon all the
circumstances before it, including the risk of invading the
deliberative process of jury deliberations and any possible
chilling effect such a procedure could have on jurors serving
on a jury again.

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