Tuesday, July 7, 2015
The District of Columbia Court of Appeals has ordered the interim suspension of a former Dorsey & Whitney partner who was suspended for seven years by the United States District Court for the Southern District of New York,
The Second Circuit affirmed the sanction.
The New York First Department had suspended her for five years as reciprocal discipline
Respondent's misconduct arose out of a federal lawsuit commenced in 2007 by the law firm of Dorsey & Whitney on behalf of Wolters Kluwer Financial Services, Inc. (Wolters). Respondent, then a partner at Dorsey & Whitney, was lead counsel in the matter. Wolters alleged that three of its former employees had taken certain proprietary information and divulged it to their new employer. The district court granted a temporary restraining order and ordered expedited discovery. The parties exchanged discovery documents, and the individual defendants were deposed. While discovery was ongoing, the district court entered a Confidentiality Order providing in part that certain material — including all discovery material at issue here — "shall not be used in any other litigation proceeding," and that the district court's jurisdiction to enforce those restrictions would survive the lawsuit.
The defendants moved to dismiss on the ground, inter alia, that the district court lacked personal jurisdiction over the defendants, all of them located in Massachusetts. The Dorsey attorneys then began to consider voluntary dismissal in New York and re-filing in the District of Massachusetts. Wolters gave respondent permission to dismiss the suit. During a subsequent conference call with the court and opposing counsel, however, respondent did not mention the pending dismissal. Either during or shortly after the conference call, respondent (the partner in charge) instructed the junior partner on the case to file the dismissal; the junior partner sent notice of the dismissal by regular mail — though not electronically.
In the federal discipline matter
the Magistrate found that respondent acted with a culpable state of mind when she committed the misconduct with which she was charged, namely: respondent's direction to an associate to alter or amend documents for the purpose of preventing their discoverability and the attempt to mislead the court as to these events; and respondent's copying of transcripts and ordering of additional copies of transcripts in intentional disregard of the court's orders, and subsequent use of the transcripts in the Massachusetts action in violation of the confidentiality order...
"[Respondent's] most serious failing involves the corruption of a young and inexperienced lawyer, over whom she had power and authority, and whom she ordered to commit conduct that could have ended with his own disciplinary hearing....[Respondent] exhibits no remorse for her inappropriate conduct; rather, she arrogantly persists in trying to salvage her reputation at the expense of the unfortunate [associate] - branding him and others at the Dorsey firm as liars when it is she who has consistently lied, both about what she did and about why she did it." "Equally problematic is Respondent's habit of twisting the truth. At the hearing, [respondent] continually tried to shift blame to virtually every other person who came within arm's length of the Wolters Kluwer case....Respondent's flagrant mischaracterization of the record, and her meritless objections to [the Magistrate's] carefully crafted and amply supported findings, indicate that she has yet to accept any responsibility for what the Committee views as serious professional wrongdoing."
D.C. will determine reciprocal discipline based on these findings.
The term of disbarment in D.C. is five years. In an original matter, a seven year period of suspension could not be imposed.
I remember a case when I was at Bar Counsel when Judge Steadman asked me at oral argument whether there was a "substantial difference" between a five and a seven year suspension.
The division answered the question with a seven-year reciprocal suspension on the facts
A seven-year suspension at this time with retroactive application of almost two years is in practice close to a five-year suspension imposed with prospective effect only, which we could plainly do under our own disciplinary scheme...Thus, on the facts of this case, the entry of an order suspending respondent nunc pro tunc for seven years will apply here a sanction functionally equivalent to that which would be both possible and warranted under the sanction scheme provided for by our Rules for disciplinary cases first initiated in the District. Adopting in this manner the "identical discipline" as that imposed by the foreign jurisdiction does not in practice result in a "substantially different" sanction here.
Looking back on this 1986 argument, I am struck by the composition of the court's division - Judges Pryor, Steadman and Pair. What an honor to appear before them.
There were giants in those days.
Fortunately, two of these giants are still with us. (Mike Frisch)