Full opinion text
ORDER The court’s published order, filed July 13, 2010, is amended as follows: At page 1039 of the order, replace <of the Respondents have submitted extensive mitigation materials that attest to excellent reputations in the legal community and, for Girardi, Lack and Traina, lengthy records of successful practice, with no prior incidents of disciplined with <of the Respondents have submitted extensive mitigation materials that attest to excellent reputations in the legal community and, for Girardi, Lack and Traina, lengthy records of successful practice. No Respondent has a public record of prior disciplined ORDER We must decide the appropriate discipline in the case of respondents Thomas V. Girardi, Walter J. Lack, Paul A. Traina, and a junior associate in Lack’s firm. Respondents attempted to enforce a putative foreign judgment for $489 million in district court but failed. They undertook and maintained an appeal to this court although they knew, at least by the time defendants filed a motion to supplement the record in this court, that the document they offered as evidence of that judgment was spurious. 1. Background, The factual and procedural background of the case is complicated but essentially uncontested. Respondents Thomas V. Girardi and Walter J. Lack are Los Angeles-based lawyers who have practiced law together for 25 years, while maintaining separate firms. They are highly experienced and highly successful practitioners. Typically, in the cases they take on jointly, Girardi and Lack divide responsibilities between their respective law firms, Girardi & Keese (the “Girardi Firm”) and Engstrom, Lipscomb & Lack (the “Lack Firm”). In some cases, the Girardi Firm has the primary responsibility; in others, the Lack firm has the primary responsibility. On November 13, 2000, Lack and Girardi agreed to engage in one such legal joint venture, signing a Master Fee Agreement with the Nicaraguan law firm of Ojeda Gutierrez and Espinoza (the “Ojeda Firm”) to represent Nicaraguan claimants in litigation concerning the effects of the pesticide Dibromochlorpropane (DBCP) on banana plantation workers. Lack and the Lack Firm would have complete responsibility for the complaint and all other filings in the case. In September 2001, Sonia Eduarda Franco and 465 other Nicaraguan plaintiffs sued several American companies for injuries allegedly caused by the companies’ use of DBCP on banana plantations in Nicaragua. Lack coordinated with the Ojeda firm, drawing upon his knowledge and experience with other pending DBCP litigation around the world. Lack identified five proper defendants: Dole Food Company, Shell Oil Company, Shell Chemical Company, Dow Chemical Company, and Standard Fruit Company. The Nicaraguan complaint, however, named as defendants Dole Food Corporation and Shell Oil Company, but not Dole Food Company or Shell Chemical Company. While the Nicaraguan complaint mentions “Dole Food Company,” it lists “Dole Food Corporation,” and not “Dole Food Company” as a defendant in the action, although there is no such entity as “Dole Food Corporation.” Despite the misidentification, the complaint was served on Dole Food Company at its corporate headquarters in Westlake, California. Dole Food Company authorized Dr. Roberto Arguello Hurtado, its Nicaraguan counsel, to appear in the Nicaraguan proceeding on behalf of Dole Fresh Fruit Company, another Dole entity that was currently doing business in Nicaragua, but which did not exist at the time of the events described in the complaint and which was not named in the complaint. For that reason, Plaintiffs’ Nicaraguan lawyer, Angel Espinoza, moved successfully, on October 25, 2002, to exclude Dole Fresh Fruit Company from the proceedings. Realizing the problem with the complaint, Espinoza petitioned the Nicaraguan court on November 12, 2002, to change the names of Defendants from Dole Food Corporation and Shell Oil Company to Dole Food Company and Shell Chemical Company. As far as the record shows, the Nicaraguan judge never ruled on that petition. Following the court’s exclusion of Dole Fresh Fruit Company from the case, Dole Food Company authorized Dr. Hurtado to appear on behalf of Dole Food Company. Dr. Hurtado represented to the Nicaraguan court that Dole Fresh Fruit Company was confused by the initial complaint, and continued to be concerned that Plaintiffs’ failure to sue the right person “could lead to injuries to its rights.” On November 25, 2002, the Nicaraguan court denied Hurtado’s intervention on behalf of Dole Food Company because the complaint was “not brought against” Dole Food Company. The Judicial Notice further advised that the rights of Dole Food Company should be “exercised through relevant channel.” On December 11, 2002, the Nicaraguan court issued a $489 million default judgment (“Judgment”) against (in English) “Dole Food Corporation” and “Shell Oil Company.” The Judgment did not mention Shell Chemical Company, nor did it name Dole Food Company as a judgment debtor. Although the Judgment referred to Dole Food Company, it did so only to describe Hurtado’s attempted intervention and to restate that Dole Food Company was not one of the defendants named in the complaint. Angel Espinoza was the main lawyer at the Ojeda Firm handling the Franco case. The lawyers at the Lack Firm never spoke with him, instead communicating only with Walter Gutierrez, the English-speaking nonlawyer-administrator of the Ojeda firm. Lack had communicated extensively with Gutierrez throughout the Nicaraguan proceedings, and he did so again when he learned in January 2003 that the Dole Food Company claimed that the Judgment named Dole Food Corporation, not Dole Food Company. In an email to Gutierrez, Lack emphasized that There must be a perfect match between the names of the entities served and the names of the entities against whom judgment has been obtained. If this form of judgment has been submitted to the Supreme Court for certification it must be modified now which might require a meeting with the trial judge to correct “clerical error.” This is a simple legal step that your lawyers should be taking care of. On January 23, 2002, at Espinoza’s request, the Nicaragua court issued the “Ejecutoria,” or Writ of Execution, to Plaintiffs’ counsel. The Writ, like the Judgment, named “Dole Food Corporation” and “Shell Oil Company,” in English, as judgment debtors, and, like the Judgment, described the court’s rejection of Hurtado’s attempt to intervene on behalf of Dole Food Company because his client was not one of the companies named in the complaint. On January 27, 2003, Gutierrez notified Lack and Girardi by email that he “had arrived back in the US,” and that he would like to meet with them to discuss, among other things, the “[ajctual correction [sic] translation of the judgment and execution thereof[.]” There is no evidence Gutierrez produced either the Judgment or the Writ of Execution at the January meeting, and Respondents deny that the documents were provided to any of the Lack attorneys over the next several months. On the other hand, there is also no evidence that Lack, Girardi, or anyone from their firms asked to see the Judgment or the Writ of Execution, even though Lack knew that they needed a judgment against the correct entity for a United States enforcement action to succeed. On April 24, 2003, a Nicaraguan notary public, Miguel Angel Caceres Palacios, issued the Notary Affidavit that would prove central to this case. The Notary Affidavit begins with the statement that Angel Espinoza, accompanied by a translator, presented the notary with the following document, i.e., the Writ of Execution. The Notary Affidavit purports to provide an exact Spanish-language transcription of the Writ, but it contains significant differences. Where the names “Dole Food Corporation” and “Shell Oil Company” appear in the Writ in English, the Notary Affidavit substitutes, also in English, “Dole Food Company” and “Shell Chemical Company.” Because of this substitution, the Notary Affidavit is facially inconsistent, stating both that the Dole Food Company is a judgment debtor, and that the Dole Food Company was denied the opportunity to appear because it was not one of the companies sued. On May 14, 2003, Lack and Girardi filed an action in Los Angeles Superior Court under California’s Recognition Act, the statute that at the time governed enforcement of foreign money judgments. See Cal.Civ.Proc.Code §§ 1713-1713.8 (repealed 2007). The Complaint attached the Notary Affidavit as “Appendix A” and identified the document as the Writ itself. “Appendix A,” however, did not contain the entire text of the Notary Affidavit, as it omitted the entire Spanish-language introductory paragraph identifying the document as a transcription. The Complaint was misleading in other respects, as it stated that the Nicaraguan court “entered judgment ... against all defendants,” although Lack knew the original Judgment named Dole Food Corporation and not Dole Food Company, and he had no basis for concluding that the problems he had identified in January had in fact been cured or that the name changes appearing in the Notary Affidavit were approved by any court. Moreover, the Complaint stated that “[t]he original certified copy of the Writ of Execution is within the custody of Plaintiffs’ counsel,” although Lack now maintains that he did not in fact have even a copy of the Writ until April, 2005, as described below. On June 25, 2003, at Defendants’ request, Lack sent defense counsel a complete copy of the Notary Affidavit, stating that earlier, “we deleted certain portions of the Spanish part since they were deemed superfluous to the Judgement [sic].” Armed with a copy of the complete Notary Affidavit, Dow Chemical Company (“Dow”) and Shell Chemical Company (“Shell”) removed the action to federal court on July 17, 2003. Dow and Shell argued in their Notice of Removal that although Dole Food Company, a California corporation, was a local defendant, there was nevertheless complete diversity because Dole Food Company was fraudulently joined. Contrary to the representation in the Complaint and “Appendix A,” Dole Food Company was not a party to the Nicaraguan proceeding and so Dole Food Company could not be — and was not — subject to the default judgment. Moreover, Dow and Shell maintained that “Appendix A” to Plaintiffs’ Complaint was not the Writ but a “facially inaccurate post hoc recitation of the judgment, incorporated within a transcribed and translated version of a writ of execution, all contained in a form secured ex parte from a notary public.” The Notice of Removal also contained originals and English translations of the Judgment itself, the complete Notary Affidavit, and additional documents from the Nicaraguan litigation demonstrating that Dole Food Corporation, not Dole Food Company, was the defendant in those proceedings. On July 24, 2003, Defendants moved to dismiss the complaint, citing the same infirmities, and pointing out that “Appendix A” was “at least four steps removed from the actual Judgment.” On August 14, 2003, Plaintiffs moved to remand the action to state court and filed a reply to Defendants’ motion to dismiss. In their Motion to Remand, Plaintiffs, as they did in the Complaint, falsely asserted that the Complaint attaches “[t]he actual Judgment/Writ of Execution which names Dole Food Company Inc. as a party,” and that the Writ named Dole Food Company and Shell Chemical as judgment debtors. Although Lack’s signature appeared on Plaintiffs’ Motion to Remand, Opposition Brief to Defendants’ Motion to Dismiss, and Reply to Defendants’ Opposition to Plaintiffs’ Motion to Remand, the primary responsibility for preparing these briefs fell on Respondent Paul Traína, who had been a member of the Lack firm since 1996. Traina’s briefing argued that the district court could not reach the merits of the enforcement action, even as it repeated the false characterization of the document that was the entire basis for that action. To support the inaccurate statements, Respondents attached three declarations to their reply brief: an “expert” declaration from Lorena Centeno, a California lawyer who had graduated from a Nicaraguan law school; a declaration from Orlando Corrales Mejia, a former Vice President of the Nicaraguan Supreme Court; and a declaration from Espinoza of the Ojeda Firm. On October 16, 2003, District Judge Manella denied Plaintiffs’ Motion to Remand, finding that Dole Food Company, the “local defendant” that would have destroyed diversity, was not a party to the Nicaraguan judgment because Plaintiffs’ alleged “translated version of the Writ of Execution” was actually executed three months after the Writ issued, contained no assurance of its accuracy, and “recites facts inconsistent with the naming of Dole Food Company Inc. as a party to the underlying action.” Franco v. Dow Chemical Co., 2003 WL 24288299, at *3 (C.D.Cal. Oct.20, 2003). Judge Manella concluded the Notary Affidavit was “suspect, not only because it changes the names of two parties that appeared in English in the Judgment, but because it contradictorily orders ‘Dole Food Company Inc.’ to pay, while reciting that neither ‘Dole Food Company’ nor ‘dole[sie] Food Company, Inc.’ was a party to the action.” Id. at *4. Judge Manella also noted that Plaintiffs’ Complaint failed to comply with the plain language of the Recognition Act, insofar as the Act provides a mechanism for enforcing judgments, not writs of execution. See id. at *5. The district court also granted Defendants’ Motion to Dismiss. On November 20, 2003, Respondents filed a notice of appeal to the Ninth Circuit. Lack and Traína delegated the duty of drafting the Opening Brief to a junior associate, who had less than two years’s experience as a lawyer and no previous appellate experience. On April 30, 2004, Respondents filed an Opening Brief that repeated false statements made before the district court, declaring that “Appendix A” was the January 2003 Writ, that the January 2003 Writ names Dole Food Company and Shell Chemical Company as judgment debtors, that the “Writ,” (which is what Respondents continued to call the Notary Affidavit), is “dispositive of the fact that Dole Food Company is a proper defendant,” and that the December 11, 2002 Judgment named Dole Food Company and Shell Chemical Company as defendants. Defendants filed their Appellees’ Brief on June 30, 2004, again arguing that “it is obvious that plaintiffs have not stated a cause of action to enforce the Nicaraguan judgment against Dole Food Company, Inc., for the simple reason that this entity was not named in the underlying Nicaraguan complaints or judgment and was affirmatively denied an opportunity to participate in the Nicaraguan proceedings for just that reason[.]” Defendants also noted that on May 18, 2004, during the pendency of this appeal, the Nicaraguan court had issued another writ of execution in conjunction with efforts to enforce the same judgment against assets located in Venezuela, and the new writ confirmed that neither Dole Food Company nor Shell Chemical Company were parties to the original judgment. On August 9, 2004, the junior associate sent Traína a memo in which he expressed his concerns about the viability of their position, noting that the firm risked exposure to a motion under Federal Rule of Appellate Procedure 38, which would provide for an award of damages and double costs if their appeal were found to be frivolous. Traína, in consultation with Lack, responded to the junior associate’s concerns about the basis of their case, and the associate drafted a reply brief which was filed on August 13, 2004. The reply brief argued that “plaintiffs’ Complaint had properly alleged that plaintiffs have a final judgment for a sum of money in their favor against Dole.” While the appeal was pending, the same parties were engaged in a related case in district court, a declaratory relief action that Shell had brought against the Franco plaintiffs. In the course of discovery in that proceeding, Shell sought a copy of the January 23, 2003 Writ of Execution. Respondents vigorously opposed those efforts, but on April 15, 2005, were required to deliver the original January 2003 Writ, which had been in the possession of the Ojeda firm, to Shell, and Shell shared the document with its co-defendants in the Franco case. The Franco Defendants moved to supplement the record in the pending Ninth Circuit appeal with the Writ, which demonstrates on its face that Plaintiffs had been misrepresenting its contents. They also moved for sanctions for (1) filing a frivolous appeal and (2) making false statements. Respondents unsuccessfully opposed the motion to supplement the record and filed a counter-motion for sanctions. Around July 6, 2005, only a week before oral argument, Howard B. Miller, a member of the Girardi Firm, was asked to argue the appeal. After reviewing the record for six to eight hours, Miller determined that the appeal should be dismissed, because the case had been argued entirely on the mistaken premise that the Writ named the Dole Food Company, a thesis contradicted by the recently produced original writ. Respondents dismissed the Franco appeal on July 11, 2005. On August 25, 2005, this Court issued its order to show cause, directed to Girardi, Miller, Lack, Traína, the junior associate, and the two law firms representing Plaintiffs in the Ninth Circuit. The order directed Respondents to show cause “why it or he should not be required to reimburse the appellees for fees and expenses incurred in defending this appeal, and why it or he should not be suspended, disbarred, or otherwise sanctioned, under Federal Rules of Appellate Procedure 38 and 46 and 28 U.S.C. § 1912 and § 1927, for filing a frivolous appeal, falsely stating that the writ of execution issued by the Nicaraguan court named Dole Food Company, Inc. as a judgment debtor, falsely stating that the writ corrected mistakes in the judgment, and falsely stating that the notary affidavit constituted an accurate translation of the writ.” On March 28, 2006, the Panel directed that the order to show cause be discharged as to Respondent Howard Miller, and it appointed Judge Wallace A. Tashima of this court as Special Master to oversee further proceedings. After extensive discovery and briefing, Judge Tashima presided from October 22nd to 25th, 2007, over a four-day trial of the issues relevant to the order to show cause. On March 21, 2008, Judge Tashima filed a detailed report addressing the motion for sanctions, in which he concluded that Girardi had “recklessly” made false statements to the Ninth Circuit, while the three Respondents from the Lack firm had done so “knowingly, intentionally and recklessly.” Judge Tashima recommended imposing sanctions totaling $390,000. The Respondents have stated that they are prepared to accept the monetary sanctions recommended by Judge Tashima. On the same day, Judge Tashima filed under seal a brief Supplemental Report addressing the question of attorney discipline. The Supplemental Report incorporated the findings and conclusions of Judge Tashima’s main report and recommended that a “disinterested prosecutor” be appointed if the Panel deemed further proceedings necessary. In response to the Supplemental Report, the three Lack firm Respondents filed objections to the findings and conclusions of the first Report insofar as they were incorporated in the Supplemental Report, and all four Respondents requested the opportunity to present further evidence in mitigation. The Panel appointed Professor Rory K. Little as Independent Prosecutor on July 10, 2008. On May 12, 2009, Professor Little filed his report detailing his own investigation and review of Judge Tashima’s record. Professor Little stated his belief that “the Respondents did not really contest the material facts in the [Special Master’s] Report and Supplemental Report, so much as they wished to dispute the inferences and legal conclusions drawn from those facts, and emphasize some other facts not included in either Report although developed at trial.” Professor Little’s report stated that Respondents did not dispute that the three statements set forth in the order to show cause were in fact false and “that the Respondents acted at least recklessly in failing to detect those falsities and permitting them to appear in their [o]pening appellate brief and to stand uncorrected even through the date of oral argument in July 2005.” The report also concluded that Judge Tashima’s findings regarding the Respondent’s states of mind “are accurate and provable by clear and convincing evidence.” The balance of Prof. Little’s report outlined proposed discipline to which the Respondents were prepared to stipulate. On October 7, 2009, Judge Tashima filed a corrected version of his March 21, 2008 report. We adopt in full Judge Tashima’s findings of fact, conclusions of law, and recommendations with respect to sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1912 and § 1927 as they appear in that corrected version. We turn now to the question of discipline under Federal Rule of Appellate Procedure 46. 2. Applicable Legal Standard “A member of the court’s bar is subject to suspension or disbarment by the court if the member ... is guilty of conduct unbecoming a member of the court’s bar.” Fed. R.App. P. 46(b)(1)(B); see Gadda v. Ashcroft, 377 F.3d 934, 947 (9th Cir.2004) (listing examples of “conduct unbecoming”). Furthermore, the court “may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” Fed. R.App. P. 46(c). A court need not find intentional conduct to discipline an attorney for conduct unbecoming a member of the bar pursuant to Federal Rule of Appellate Procedure 46; lack of diligence that impairs the deliberations of the court is sufficient. See Gadda, 377 F.3d at 947. “Conduct unbecoming a member of the court’s bar” means “conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice.” In re Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985); see also Gadda, 377 F.3d at 946. In addition to case law and applicable court rules, the court may consider codes of professional conduct in determining whether an attorney’s conduct falls below the standards of the profession. See In re Snyder, 472 U.S. at 645, 646 n. 7 (referring to state rules of professional conduct, and the American Bar Association’s (“ABA”) Model Rules of Professional Conduct and Model Code of Professional Responsibility). Here, the conduct identified in the order to show cause clearly constitutes “conduct unbecoming a member of the court’s bar,” because it violates the ABA’s Model Rules as well as California rules of professional conduct. See Model Rule 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”); Model Rule 3.3(a) (“A lawyer shall not knowingly ... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer”); Cal. Rule Prof. Conduct 5-200 (“In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law[.]”); see also Cal. Bus. & Prof.Code § 6068(d) (codifying lawyer’s duty not “to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”). In assessing the appropriateness of a particular disciplinary sanction, this court may consider, although it is not bound by, the ABA’s Standards for Imposing Lawyer Sanctions, which were promulgated to aid enforcement of the ABA’s Model Rules of Professional Conduct. See United States v. Swanson, 943 F.2d 1070, 1076 (9th Cir. 1991); see also ABA Joint Comm, on Profl Standards, Standards for Imposing Lawyer Sanctions (1984, rev.1992), available at http://www.abanet.org/cpr/regulation/ standards_sanctions.pdf (“Standards ”). Under these standards, a court should generally consider: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors. See Standards § 3.0. The Standards also set out various forms of suggested discipline based on the type of misconduct involved. See id. §§ 4.0-8.4. 3. Discussion Although we are concerned here only with Respondents’ conduct in this court, the entire course of Respondents’ effort to enforce the Nicaragua judgment is relevant to determining Respondents’ culpability. As outlined above, the history of the enforcement proceedings includes several crucial moments where a reasonable attorney would have, at a minimum, inquired further about the bona fides of the document that was the basis of the action he was prosecuting. At some point, failing to do so becomes willful blindness. The official comments to Model Rule 3.1 recognize that an attorney may not know whether his claims are viable when he files an action, but he has a duty to investigate the legal and factual bases of his claims: The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Model Rule 3.1, cmt. 2; see also Holgate v. Baldwin, 425 F.3d 671, 676-77 (9th Cir. 2005) (reviewing circuit precedent that a “frivolous” filing in the context of Rule 11 is one “that is both baseless and made without a reasonable and competent inquiry”). As early as January 2003, respondents Lack and Girardi were aware that the Nicaraguan Judgment named the wrong defendant and that the discrepancy could doom any enforcement action in American courts. Even if .neither Respondent saw the actual Judgment or Writ of Execution in 2003, the receipt of the Notary Affidavit, erroneously identified as the Writ and attached to the Superior Court Complaint as “Appendix A,” should have prompted further investigation, because it contained the inconsistent statements that Dole Food Company was a judgment debtor and that it was not a party to the case. Moreover, the Complaint contained the false statement that the Lack firm had the original of the Writ of Execution, when it did not. Respondents’ subsequent actions were more obfuscation than investigation. Confronted with Defendants’ Notice of Removal and Motion to Dismiss, which detailed accurately how “Appendix A” was several removes from the actual Judgment Plaintiffs sought to enforce, Respondents doubled down on their increasingly untenable position. By his own admission, Respondent Traína did virtually nothing to investigate and determine the veracity of the statements made in the Complaint, even though the Notary Affidavit, on its face, presents questions as to its authenticity and even though Defendants’ central argument called into question the accuracy of the statements made in Plaintiffs’ Complaint. Even if Respondents felt confident in dismissing their adversaries’ arguments, Judge Manella’s careful and detailed decision should have given them pause in pursuing an appeal, as it laid bare the fundamental and fatal flaws in their enforcement action and in the Notary Affidavit attached to the Complaint. Respondents have consistently argued that the appeal was taken in good faith because it reasonably challenged the district court’s jurisdiction to weigh the evidence relevant to the allegedly false joinder of Dole Food Company. This argument is unavailing. Even if Respondents’ interpretation of Ninth Circuit case law on fraudulent joinder were correct — an issue we do not reach — Respondents advanced their jurisdictional arguments in briefing that relied upon false statements about the documents central to their enforcement action. Moreover, the false statements were now being made in the face of new evidence, such as the second writ of execution used to enforce the Nicaraguan judgment in Venezuela, that called into question Respondents’ version of events. By the time Respondents were forced in the related declaratory relief action in April 2005 to produce the original Writ of Execution, it would seem impossible to maintain the validity of “Appendix A” — -the linchpin of the entire enforcement action— as an accurate representation of the Judgment and the Writ. Respondents nevertheless resisted efforts to produce the Writ or to allow this court to weigh its considerable relevance. In their Opposition to Appellees’ Motion to Supplement the Record, Respondents reiterated the narrow jurisdictional basis of their appeal, but that argument was again made in conjunction with a defense of “Appendix A,” the spurious document identified as the Writ. This recap of the red flags Respondents ignored in their two-year quest to enforce the $489 million Nicaraguan Judgment underlines the central difficulty in assessing Respondents’ culpability and therefore the appropriate discipline. The ABA Standards emphasize the lawyer’s mental state. Respondents’ states of mind clearly evolved over time. Respondents were obviously more culpable in opposing Appellees’ Motion to Supplement the Record than they were at earlier stages in the proceedings, although many of the events that occurred in district court should have put them on notice that their position was untenable and that any appeal would be frivolous. In their proposed stipulation with Professor Little, Respondents accepted only that their behavior was reckless, although Professor Little noted that in his view, the evidence could support Judge Tashima’s characterization of the conduct of Lack, Traína and the junior associate as intentional and knowing. At the subsequent hearing before us, at which they appeared in person, both Lack and Traína strongly disavowed any intent to mislead the court. This position no doubt reflects Respondents’ sincere wish that their statements about the Notary Affidavit had been true. Unfortunately, even if Respondents only “chose to state as a fact what was at the best a guess and a hope, [they] engaged in misrepresentation.” In re Curl, 803 F.2d 1004, 1006 (9th Cir.1986), overruled on other grounds, Partington v. Gedan, 923 F.2d 686 (9th Cir.1991) (en banc). We have explained why misrepresentation cannot be taken lightly: The vice of misrepresentation is not that it is likely to succeed but that it imposes an extra burden on the court. The burden of ascertaining the true state of the record would be intolerable if misrepresentation was common. The court relies on the lawyers before it to state clearly, candidly, and accurately the record as it in fact exists. In re Boucher, 837 F.2d 869, 871 (9th Cir.1988) (order). We have also held that the court need not find squarely intentional conduct to impose serious discipline pursuant to Rule 46(c) for misrepresentations made to the court. See DCD Programs, Ltd. v. Leighton, 846 F.2d 526, 528 (9th Cir.1988) (order). The ABA Standards provide a range of discipline for misrepresentations to a court, and the degree of discipline depends, in large measure, on the lawyer’s mental state: 6.11. Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding. 6.12. Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. 6.13. Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding. 6.14. Admonition is generally appropriate when a lawyer engages in an isolated instance of neglect in determining whether submitted statements or documents are false or in failing to disclose material information upon learning of its falsity, and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding. Standards, §§ 6.11-6.14. On the record before us, the conduct of the various Respondents falls somewhere between Standards § 6.12 and § 6.13. As Judge Tashima explained in assessing sanctions under 28 U.S.C. § 1927, all of the Respondents were reckless in failing to verify the truth of the statements made to this court about the Notary Affidavit and the Judgment it purported to represent. The ABA Standards do not, however, recognize the mental state of “recklessness.” Standards § 6.12 applies where there is actual knowledge that false statements and documents have been submitted to the court, while Standards § 6.13 applies where the submission of false statements or documents (and the failure to take remedial action) is the product of negligence. As Judge Tashima explained, Girardi is in a different position from the other Respondents because he took almost no active part in the actual proceedings to enforce the Nicaraguan Judgment. Girardfs practice of authorizing the Lack firm to sign his name on briefs that turned out to contain falsehoods may raise separate ethical questions, but with respect to the specific misrepresentations identified in the order to show cause, Girardi’s proven conduct is at most reckless, and the recklessness inheres in his mode of practice, not in any specific action he took in the enforcement action or the appeal. We will therefore formally reprimand Girardi for his recklessness in determining whether statements or documents central to an action on which his name appears are false. The three Respondents from the Lack firm cannot, like Girardi, rely on a claim of ignorance. The history of the enforcement action demonstrates the multiple occasions on which they chose to remain willfully blind to the fact that they were making false statements. By the time they appeared in this court, the attempt to salvage them case became indistinguishable from a knowing submission of false documents. Suspension is the appropriate discipline for these Respondents. The ABA Standards set out aggravating and mitigating factors that justify an increase or reduction in the degree of discipline to be imposed. See Standards §§ 9.2, 9.3. All of the Respondents have submitted extensive mitigation materials that attest to excellent reputations in the legal community and, for Girardi, Lack and Traina, lengthy records of successful practice. No Respondent has a public record of prior discipline. See Standards § 9.32(a), (g). Each Respondent has been cooperative throughout disciplinary proceedings, and each states that he is genuinely remorseful. See Standards §§ 9.32(e)(1). Under the ABA Standards, however, substantial legal experience may also be an aggravating factor, because an experienced attorney should know better than to engage in conduct that merits discipline. See Standards § 9.22(f). With respect to Respondents Lack and Traina, we conclude that the mitigating factors can affect only the length of the suspension we impose. Although Lack’s involvement in the enforcement proceedings was more long-standing than Traina’s, each was specifically responsible for the falsehoods presented to this court. Consequently, each is suspended from the practice of law in this court for six months, effective on the filing date of this order. Fed. R.App. P. 46(c). Respondents Lack and Traina may each file a petition for reinstatement after the period of suspension pursuant to Ninth Circuit Rule 46-2(h). Each shall file the petition using this docket number and include evidence that he is in good standing, with no discipline pending, in all courts and bars to which he is admitted. With respect to the third Lack firm Respondent, whom we have identified simply as “the junior associate,” we find additional, significant mitigating factors. The ABA Standards identify inexperience in the practice of law as a mitigating factor, see Standards § 9.32(f), but we are more influenced by his earnest, albeit unsuccessful, effort to persuade his more-experienced colleagues not to continue their frivolous appeal. We will privately reprimand the junior associate for allowing his superiors to overcome his sound instincts and for his role in drafting briefs that contained false statements. k. Conclusion Respondents in this case have been respected members of the bar, and each has presented significant mitigating evidence. Their conduct in this case, however, cannot be excused on that basis, given their culpability and the substantial injury their conduct caused the opposing parties and this court. We have carefully considered the recommendations of Judge Tashima and Professor Little, who have made our task substantially easier and whose assistance we gratefully acknowledge. We impose discipline as follows: THOMAS V. GIRARDI is formally reprimanded. WALTER J. LACK and PAUL A. TRAINA are suspended from practice before the Ninth Circuit for six months. So ordered. APPENDIX THOMAS V. GIRARDI; GIRARDI & KEESE; WALTER J. LACK; PAUL A. TRAINA; ENGSTROM, LIPSCOMB & LACK, et al. Respondents, SONIA EDUARDA FRANCO FRANCO; et MASTER al., Plaintiffs-Appellants, v. DOW CHEMICAL COMPANY; et al., Defendants-Appellees. No. 03-57038 DC No. CV 03-05094 NM REPORT AND RECOMMENDATION OF THE SPECIAL (AS CORRECTED) (Special Master Proceedings) Filed October 7, 2009 TASHIMA, Circuit Judge: The panel in the underlying appeal issued an order that Respondents Thomas V. Girardi, Girardi & Keese, Walter J. Lack, Paul A. Traína, a young associate in the Lack firm, and Engstrom, Lipscomb & Lack (collectively, “Respondents”) show cause “why it or he should not be required to reimburse the appellees for fees and expenses incurred in defending this appeal, and why it or he should not be suspended, disbarred, or otherwise sanctioned, under Federal Rules of Appellate Procedure 38 and 46, and 28 U.S.C. § 1912 and § 1927, for filing a frivolous appeal, falsely stating that the writ of execution issued by the Nicaraguan court named Dole Food Company, Inc. as a judgment debtor, falsely stating that the writ corrected mistakes in the judgment, and falsely stating that the notary affidavit constituted an accurate translation of the writ.” Thereafter, the panel appointed a special master to conduct such proceedings as may be required and to make a report and recommendation to the panel whether sanctions and/or discipline should be imposed and, if so, what those sanctions and disciplinary actions should be. After extensive pre-hearing proceedings and discovery, the Special Master held a five-day evidentiary hearing, which ended on October 25, 2007. This is the Special Master’s Report and Recommendation to the panel. Procedural and Factual Background Based on the record in these proceedings, the Special Master makes the following findings of fact: Thomas V. Girardi and Walter J. Lack are Los Angeles-based lawyers who have known each other for 30 years and have practiced law together for 25 years. Tr. 417:25-18:2. They have worked together on nearly 80 cases, including representing the plaintiffs in the high-profile case against Pacific Gas & Electric Co. (the so-called Erin Brockovich case), representing California energy rate-payers in the Sempra Energy case, and serving as plaintiffs’ nationwide coordinating counsel in the Vioxx litigation. Tr. 420:21-21:14. They are highly experienced and highly successful practitioners. Typically, in the cases they take on jointly, Girardi and Lack divide responsibilities between their respective law firms, Girardi & Keese (the “Girardi Firm”) and Engstrom, Lipscomb & Lack (the “Lack Firm”). Tr. 422:14-23:8. In some cases, the Girardi Firm has the primary responsibility; in others, the Lack Firm has the primary responsibility. Tr. 422:14-:21. On November 13, 2000, Lack and Girardi agreed to engage in one such legal joint venture, signing a Master Fee Agreement with the Nicaraguan law firm of Ojeda Gutierrez and Espinoza (the “Ojeda Firm”) to represent Nicaraguan claimants in DBCP litigation. TE15 Lack and the Lack Firm would have “complete responsibility for the complaint and all other filings in the case.” Girardi Post-Hearing Brief 10: see also Tr. 96:16-97:6 (“I[Lack] was ultimately responsible for everything that was filed in this case, including at the appellate level.”). I. The Nicaraguan Proceedings In September 2001, Sonia Eduarda Franco and 465 other Nicaraguan plaintiffs sued several American companies for injuries allegedly caused by the companies’ use of DBCP on banana plantations in Nicaragua. TE-5-112 to -117 (Spanish); TE 5-134 to -165 (English). Lack coordinated with the Nicaraguan counsel, directing them “as to who [Lack] knew, based upon our other pending litigation around the world, the proper party defendants were.” Tr. 103:24-104:3. To Lack, the proper defendants were five in number: Dole Food Company, Shell Oil Company, Shell Chemical Company, Dow Chemical Company, and Standard Fruit Company. Tr. 104:6-05:2. The Nicaraguan complaint, however, named as defendants Dole Food Corporation and Shell Oil Company, but not Dole Food Company or Shell Chemical Company. TE 5-117 (Spanish); TE 5-140 (English). While the Nicaraguan complaint mentions “Dole Food Company,” it lists “Dole Food Corporation,” and not “Dole Food Company” as a defendant in the action. See TE 73-044 (Spanish), 73-060 (English) (listing “Dole Food Corporation Inc. domiciled at 331364 Oak Crest Drive, Westlake, California 91361-4313, USA” as a defendant); TE 73-043 (Spanish), 73-057 (English) (stating that “[i]n mid-1979, ... Dole Food Co Inc.[, among others] purchased DBCP with the objective of using it in Nicaragua”). Facing service of a complaint that listed Dole Food Corporation as a defendant, Dole Food Company authorized Dr. Roberto Arguello Hurtado, Dole Food Company’s Nicaraguan counsel, to appear in the Nicaraguan proceeding on behalf of Dole Fresh Fruit Company, a Dole entity. See Tr. 306:6-09:4. Because Plaintiffs believed that Dole Fresh Fruit Company did not operate in Nicaragua when the banana plantations were in operation, Angel Espinoza, the Nicaraguan lawyer for Plaintiffs, moved, on October 25, 2002, to exclude Dole Fresh Fruit Company from the proceedings, see Espinoza Dep. 68:12-70:1, which the judge granted, see TE 334 (granting the motion and stating that Dole Fresh Fruit Company is “not ... a party to this action”). Realizing the problem with the complaint, Espinoza petitioned the Nicaraguan court on November 12, 2002, to change the names of Defendants from Dole Food Corporation and Shell Oil Company to Dole Food Company and Shell Chemical Company. TE 122-04 (English), 122-01 (Spanish). The Nicaraguan judge never ruled on that petition. See Espinoza Dep. 198:1 — :7. Following the court’s exclusion of Dole Fresh Fruit Company from the case, Dole Food Company authorized Dr. Hurtado, to appear on behalf of Dole Food Company. Tr. 317:11 — :15, 318:8-:13. Dr. Hurtado represented to the Nicaraguan court that Dole Fresh Fruit Company was confused by the initial complaint, continued to be concerned that Plaintiffs failure to sue the right person “could lead to injuries to its rights,” and therefore, Dr. Hurtado sought to “APPEAR ON BEHALF OF [HIS] PRINCIPAL, DOLE FOOD COMPANY, TO RATIFY ALL ACTIONS OF DOLE FRESH FRUIT COMPANY IN THE CLAIM FILED AND NOTIFIED TO DOLE FOOD CORPORATION, INC.” TE 174-04 to -05 (English) (emphasis in translation reflects emphasis in original); see also TE 174-01 to -03 (Spanish). Moreover, Dr. Hurtado requested that the court “DECLARE AT THIS PROCEEDING WHETHER DOLE FOOD COMPANY IS THE DEFENDANT COMPANY.” TE 174-06 (English) (emphasis in the original). In order to appear in a DBCP lawsuit in Nicaragua, Nicaraguan Law 364 requires that a defendant post a U.S. $100,000 bond, which Dole Fresh Fruit Company did before Dr. Hurtado appeared on behalf of that entity. See TE 332-01 to -05. Dole Food Company, however, did not want to post an additional $100,000 to appear as Dole Food Company; instead, on November 13, 2003, Dole Food Company sought to appear under Dole Fresh Fruit Company’s $100,000 bond and ratify all acts performed on behalf of Dole Fresh Fruit Company. See TE 403-001. The Nicaraguan court, on November 25, 2002, denied Dole Food Company’s intervention because the complaint was “not brought against” Dole Food Company. TE 5-170 (Spanish), 5-175 (English). The Judicial Notice states: Having seen the power of attorney filed by Dr. Roberto Arguello Hurtado, of legal age, married, an attorney and of this domicile, whereby he evidences his capacity as general judicial representative of Dole Food Company Inc., and given that the complaint heard in this case was not brought against this company, the Court hereby denied legal intervention on the part of Dr. Arguello Hurtado. Furthermore, because this attorney has stated that the complaint may affect the interests of his client, the rights of that client should be exercised through relevant channel. TE 5-170 (Spanish), 5-175 (English) (emphasis added). On December 11, 2002, the Nicaraguan court issued a $489 million judgment (“Judgment”) against Dole Food Corporation and Shell Oil Company. TE 12-011 (Spanish), 12-031 (English). The Judgment did not mention Shell Chemical Company, nor did it name Dole Food Company as a judgment debtor. Although the Judgment referred to Dole Food Company, it did so only to restate that Dole Food Company was not one of the defendants named in the complaint: Doctor ROBERTO ARGUELLO HURTADO, as judicial representative of DOLE FOOD COMPANY appeared, stating that the interests of his client could be affected by the complaint requesting legal intervention. It was denied because his client was not one of the companies named in the complaint, and said attorney was advised to exercise the rights of his client in the appropriate forum. TE 12-006 (Spanish), 12-026 (English). Lack learned by January 15, 2003 that Dole Food Company claimed that the Nicaraguan Judgment named Dole Food Corporation, not Dole Food Company. In an email to Gutierrez, Lack stated that the Judgment was “against the wrong entity.” TE 43; see also TE 19. As Lack put it in his January 15 email to Gutierrez: I have studied your English translation of the judgment and I am VERY concerned. No U.S. Court could read or understand this translation. You have apparently secured a judgment against Occidental Chemical contrary to our earlier discussions and I can’t imagine how this happened after you told me Occidental had been dismissed. The judgment needs to be against Dole Food Co., the entity that was served. There must be a perfect match between the names of the entities served and the names of the entities against whom judgment has been obtained. If this form of judgment has been submitted to the Supreme Court for certification it must be modified now which might require a meeting with the trial judge to correct “clerical error.” This is a simple legal step that your lawyers should be taking care of. From your email it is apparent that everything has fallen on you to do when the lawyers you are working with really must assist and focus on this important task. It seems to Tom [Girardi] and I that we should have a meeting in Los Angeles when you return for the Staples Concert .... Until then, if our judgments are against the wrong entity Dole will continue to pretend it has nothing to worry about. TE 43; see also TE 19. On January 23, 2002, at Espinoza’s request, the Nicaragua court issued the “Ejecutoria,” or Writ of Execution, to Plaintiffs’ counsel. See TE 13-001 (Spanish), 13-029 (English). The Writ, like the Judgment, named Dole Food Corporation and Shell Oil Company as judgment debtors, TE 13-016 (Spanish), 13-045 (English), and stated that “HURTADO, as judicial representative of DOLE FOOD COMPANY appeared, stating that the interests of his client could be affected by the complaint requesting legal intervention. It was denied because his client was not one of the companies named in the complaint,” TE 13-038 (English). On January 27, 2003, Gutierrez notified Lack and Girardi by email that he “had arrived back in the US,” and that he would like to meet with them to discuss, among other things, the “[a]ctual correction [sic ] translation of the judgment and execution thereof[.]” TE 131-001. Lack annotated, in his own handwriting, his copy of the email, noting that there was a “Meeting w/ W.G. & TVG — discussed all issues: 2 hrs. 1/28 5:00PM — Principe [sic].” Id.; Tr. 177:17-78:24. Lack admits that a meeting took place, that Girardi attended the meeting, and that the items on the agenda were discussed, including the original Judgment and the writ of execution, but he claims that he never saw the actual Writ until 2005, see Tr. 176:21-80:19; although his memory of the meeting was spotty, see id In preparation for another meeting, on March 18, 2003, Gutierrez faxed to Lack and Girardi a document Gutierrez characterized as “[his] report before our meeting[.]” TE 24-001. In it, he reported: I have brought back translated copies of the motions by Attorney Espinoza requesting the amendments to our complaints, correcting the names of the named defendants to Shell Chemical Co., and Dole Food Co., Inc. Dow Chemical Co. has been correctly filed and served. The amendment request have been approved, I have the translated version, and all complaints have been corrected. We will have to reserve the defendants, although it will be costly, it can be done expeditiously since all complaints will be served at once. There will be no grounds for the defendants to argue improper service. I also brought correctly translated copies of the final judgment and the certified writ of execution. To my complete amazement and disbelief I was made aware of a grave mistake that I had been led to assume, due to improper pronunciation of what was required to execute the judgment in the US. I was told by our attorneys that we needed an “ese cuatro” which translates into English as an “S4”. Therefore, I assumed (my big mistake) that an S4 was a required form that had to be filed with the Supreme Court before the default judgment could be sent to the U.S. (to execute). I have spent the last three months trying to locate this form S4, because I wanted to be ready when the defendants’ last appeal was dismissed. A week ago I discovered that the word is not “ese cuatro” but “exequatur” from the Latin word “exsequatur”, which means to execute. Therefore, it means the writ of execution, which I have had for the past month in my possession with all the other prerequisites required by law to execute the default judgment in the US. I have brought the certified copy of the writ of execution correctly translated into English, and ready for execution. TE 24-001 to -002. Two days after transmission of this “report,” March, 20, 2003, Gutierrez brought the Writ to Los Angeles. See Gutierrez Dep. 143:5-:9 (“I don’t know if it was in April, May, I don’t recall the date — I took it back with me to the United States to be — okay.”). There, the Nicaraguan Consulate authenticated the Writ. TE 13-028 (Spanish), 13-055 (English). Gutierrez, according to his testimony, then took the Writ back with him to Nicaragua. Gutierrez Dep. 144:6-:13. Back in Nicaragua, Gutierrez claims to have prepared copies of the Writ, including a translation, and sent them to Lack and Girardi. As noted in an email he sent to Lack and Girardi on March 28, 2003: I just completed getting the English translated copies of the writ of execution certified by the Supreme Court and the Ministry of the Exterior. One of the copies is a straight translation, and the other copy is a direct order from the District Court. Use the copy that you feel is appropriate. I am sending them via UPS today, and you should receive them on Monday (3/31) no later than Tuesday (4/1). I told the banana workers that the lawsuit should be filed by Friday 4/11. If there are any issues you want me to address that I might have overlooked please let me know. TE 25-001. Gutierrez followed this up with another email to Lack and Girardi on April 1, 2003: I would like to know whether you have received the UPS package today (the certified copy of the writ of execution)? I have a meeting this Sunday, 4/6 with approximately 2,000 of our clients. I would like to give them a time that the lawsuit will be filed in the US. Initially I estimated that it would be 4/11. If you could please verify before my meeting on Sunday if that is an accurate date, I would appreciate it. TE 134-001. Gutierrez followed this with yet another email to Lack and Girardi on April 2, 2003, which evinces an understanding on Gutierrez’s part that Lack and Girardi had received the package containing the Writ: Since you received the certified copies of the writ of execution, please let me know your plans before my meeting on Sunday 4/6 with our clients. If you have any questions please call me or e-mail me. TE 46-001. Despite admitting that he received the emails, and despite testifying that he never responded to the emails, Lack contends that he never received the Writ, claiming that he “had our Spanish-speaking law clerk call [Gutierrez] and tell him, We don’t know what you are talking about. Nothing came here.’” Tr. 116:21-17:16, 183:16-:22,197:7-:9. Lack further testified that he believed that Gutierrez was essentially acting out an email ruse: Lack contends that Gutierrez did not send the Writ, because “he was getting extreme pressure from the Union in Nicaragua who knew he had obtained a judgment, and so he was able to show them these e-mails and say it’s the lawyers in United States that are slowing everything up. But I had not yet received the translation.” Tr. 117:20-:25. Thus, there are only one of two conclusions to be drawn: either Lack received the Writ in 2003 — long before 2005, the year he claims to have first seen the Writ — or, Lack learned in 2003 that Gutierrez would create an elaborate deception in order to shield himself from pressure. On April 18, 2003, Peter M. Schwartz, emailed Lack: commending] Alex Gutierrez, [Lack’s bilingual paralegal, (not to be confused with Walter Gutierrez, the nonlawyer administrator of the Ojeda Firm)] on ... his attention to detail required to ferret out both major and minor inconsistencies between the certified translation of the judgment, and the materials provided by Walter Gutierrez. TE 29. Schwartz continued: I have been assured by Walter Gutierrez that most of the errors are clerical in nature, and were limited to the certified translation, are being rectified, with the issuance of a new certified translation that he will forward after the Easter break. TE 29. This, of course, suggests that Lack, or at least the Lack Firm, had possession of the Judgment and a certified translation, and that “errors” were known to the Lack Firm. On April 24, 2003, a Nicaraguan notary public, Miguel Angel Caceres Palacios, issued the Notary Affidavit. TE 14; Caceres Dep. 109:10-10:14. The Notary Affidavit is entitled “Testimonio,” and begins (as translated into English): AFFIDAVIT PUBLIC RECORD NUMBER SIXTY, (60) (TRANSLATION OF WRIT OF EXECUTION INTO THE ENGLISH LANGUAGE). In the city of Managua, at eight o’clock in the morning on the twenty-third day of April of the year two thousand three, before me, Miguel Angel Caceres Palacios, an attorney and Notary Public of the Republic of Nicaragua, duly authorized by the Honorable Supreme Court to practice as a Notary for a five-year period that expires on the fifth of September of two thousand three, appeared Angel Salvador Espinoza Guerra, who is of legal age, single, attorney, domiciled in this city and identified with Identification Document Number [illegible], and Jorge Nicolas Ballesteros Castillo, who is of legal age, married, a translator, domiciled in this city and identified with Identification Number 001-061260-0034U. I certify that the persons appearing are known to me personally and, in my opinion, have the civil capacity necessary to bind themselves and to contract, and espeeially for the execution of this act, in which they act in their own names and on their own behalf. The former presented to me a document that literally reads in its entirety.... TE 14-001 (Spanish), 5-359 (English). The Notary Affidavit, therefore, purports to provide an exact transcription of the Writ. The Notary Affidavit, however, is not an exact transcription. Where the names “Dole Food Corporation” and “Shell Oil Company” appear in the Writ, the Notary Affidavit substitutes “Dole Food Company” and “Shell Chemical Company.” Compare TE 13-016, with TE 14-016. Because of the substitution of Dole Food Company for Dole Food Corporation, the Notary Affidavit states both that Dole Food Company is a judgment debtor, see e.g., TE 02-033, and that Dole Food Company was denied the opportunity to appear because it was “not one of the companies sued,” TE 02-028. II. The State Court and District Court Proceedings Armed with the Notary Affidavit, on May 14, 2003, Lack and Girardi filed an enforcement action in Los Angeles Superi- or Court to enforce the foreign judgment. See TE 2. The complaint contained a number of material omissions and inaccuracies. First, the complaint attached the Notary Affidavit as Appendix A. Appendix A, however, does not contain the entire text of the Notary Affidavit; rather, the entire introductory paragraph, quoted above, is excised from the version found in Appendix A. See supra p. 10024; TE 14-001 (Spanish), 5-359 (English). The missing introductory paragraph explicitly states that the document is (1) an affidavit by a notary public, (2) a transcription of the Writ, and (3) was issued on April 23, 2003. Id. Instead, the complaint states that Appendix A is the Writ itself. See TE 2-012 to -13 (“On December 11, 2002 a final judgment was entered by the Third Civil District Court for Managua, Nicaragua. Subsequently, on January 23, 2003, a Writ of Execution issued which incorporated the judgment in haec verba, a copy of which is attached hereto as Appendix ‘A.’ ”). Second, the complaint states that the Nicaraguan court “entered judgment ... against all defendants.” TE 2-010. Lack, however, knew that the judgment named Dole Food Corporation and not Dole Food Company, see TE 43 (saying that he was “very concerned” about the Judgment and that it must name “Dole Food Company”); see also TE 19:001 (same); Tr. 174:21-75:7 (testifying that he told Gutierrez to fix the judgment), a