Wednesday, November 23, 2016

A Lesser Sanction For Litigation Misconduct

The District of Columbia Court of Appeals has imposed reciprocal (but reduced) discipline against a former Dorsey & Whitney partner based on a sanction imposed by the United States District Court for the Southern District of New York.

On April 10, 2013, after finding that respondent Kristan Peters had violated several professional rules, the Committee on Grievances of the United States District Court for the Southern District of New York (SDNY Committee) suspended Ms. Peters from the practice of law for seven years. The District of Columbia Office of Disciplinary Counsel now recommends that we impose reciprocal discipline and suspend Ms. Peters for five years, with reinstatement conditioned upon proof of fitness to practice law. Although D.C. Bar R. XI, § 11 (e) generally requires this court to impose reciprocal discipline, Ms. Peters argues that all five enumerated exceptions to this rule apply in her case. Concluding that only one exception applies—namely, that Ms. Peters would be subject to substantially different discipline in this jurisdiction—we suspend Ms. Peters from the practice of law in the District of Columbia for a period of three years, nunc pro tunc to July 2, 2015,  with reinstatement predicated on a finding of fitness.

One sobering lesson of the story is the reverberations that ensue from a single finding of misconduct and sanction.

Because the attorney was admitted in four state and several federal courts, the ensuing disciplinary proceedings have played out like slow torture. 

The violations

The magistrate’s report canvasses the record and supports the conclusion that Ms. Peters: (1) copied and ordered additional deposition transcripts in violation of court orders for use in the new but related action in Massachusetts and thus knowingly violated a confidentiality order entered by the presiding judge in the first case; and (2) instructed a first-year associate at Dorsey to add markings to deposition transcripts in an attempt to bring them under the protection of the attorney work-product privilege and exempt them from the presiding judge’s order that all discovery be returned, and thereafter misled the court about what she had done.

A lesser sanction was appropriate under the "substantially different discipline" exception but none of the other exceptions applied

Although the misconduct in this case was serious, we conclude, in light of the absence of lasting harm and Ms. Peters’s otherwise unblemished twenty eight year career, that the relevant actions here are appropriately remedied by a three year suspension.

The attorney had failed to promptly notify D.C. but nonetheless sought nunc pro tunc treatment of the sanction

Ms. Peters contends that she “kept the courts and bars where [she] actually practice[s]—the Connecticut Bar and the New York Bar—fully apprised and promptly notified at every juncture of this matter.” Disciplinary Counsel in the District of Columbia was not notified, however, until April 10, 2015, seven years after the interim suspension first issued in the Southern District of New York. Ms. Peters suggests that because other courts—more promptly notified—stayed their proceedings pending the outcome of the SDNY Committee’s decision and subsequent appeals, and because she had not recently practiced in the District of Columbia, she did not need to notify Disciplinary Counsel until her petition for writ of certiorari was denied by the Supreme Court on November 3, 2014. Even under this interpretation, Ms. Peters’s notification was delayed five months, and in any event, no reading of D.C. Bar R. XI, § 11 (b), the D.C. Bar rule governing notice, permitted Ms. Peters to forgo promptly notifying Disciplinary Counsel once she was “subjected to professional disciplinary action” in the Southern District of New York.

Maryland imposed reciprocal discipline earlier this year. Three judges dissented in an opinion authored by Judge McDonald

The Respondent in this case has practiced law as a litigator for the federal government and in private practice for almost 30 years. She apparently has not been the subject of any other complaints of misconduct or sanctions except for the incident that resulted in this case. That incident occurred during a discovery dispute in a hotly contested commercial case in the United States District Court for the Southern District of New York nearly a decade ago. According to the Respondent, that complaint was made by the judge assigned to that case after she complained, to the chief judge of the court, about derogatory remarks made to her by the assigned judge.

Of course, this is a reciprocal disciplinary action and it is not our role to retry the case. And we would not want to. The evidentiary hearing in this case in the Southern District of New York took 11 days and resulted in a detailed 118-page report by the Magistrate Judge who presided at that hearing. Ultimately, the United States District Court for the Southern District of New York imposed a suspension, which triggered reciprocal disciplinary proceedings in numerous other jurisdictions. Not only does our Court reach a different result, but it is a result out of step with every other jurisdiction, including the jurisdiction in which the complaint was made and those in which hearings were conducted...

The Maryland dissent summarizes the various sanctions imposed in state and federal courts and notes

In Connecticut, where Respondent has her practice, the court declined to impose any discipline. After conducting its own three-day hearing, the Connecticut court concluded that “even a retroactive suspension would serve no useful purpose.” The court did require Respondent to report any future allegations of misconduct.

The New York First Department's reciprocal order (five-year suspension) is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/11/the-district-of-columbia-court-of-appeals-has-imposed-reciprocal-discipline-against-a-former-dorsey-whittelsy-partner-based.html

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