A Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.
Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."
He ended it with his observation that "partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours -- or at least the ones that count -- often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession."
The attorney misconduct that spurred the judge to rail against the way the profession is changing arose in the course of a trade secrets lawsuit brought by financial software maker Wolters Kluwers Financial Services Inc. against a rival called Scivantage which had recruited three former Wolters Kluwers employees. The dispute between the parties settled over the summer, but Baer's anger over how discovery proceeded in the case is still evident.
He hammers in particular former Dorsey & Whitney partner Kristan L. Peters, the lead counsel for Wolters Kluwers and, according to the judge, the "driving force behind most of the decisions made by Wolters Kluwers and Dorsey." The judge said Peters had shown a "studied disregard for the sanctity of court orders."
But the lawyer targeted by the judge struck back hard.
"It is hard to take seriously Judge Baer's alleged concern for professional courtesy when he continues to treat women litigators like second-class citizens in his courtroom, requires attorneys to physically oversee the return of documents in another country within a matter of hours when they are overseas on their anniversary, and sets depositions on Sunday mornings," said Peters in an e-mail.
"Indeed, when a Catholic lawyer asks for the opportunity to attend church before the Sunday deposition, he mocked the attorney for Catholic observance," she said.
Baer was particularly angry that Peters and Dorsey & Whitney had used transcripts of depositions that were covered by his protective order in a complaint launching an almost identical lawsuit in federal court in Massachusetts while seeking voluntary dismissal of the New York action. The judge described this as a "bad faith" effort to "judge-shop" and circumvent the New York court's discovery orders.
The judge reprimanded the firm, Peters and partner Marc Reiner in connection with that effort. He also reprimanded Peters individually for several instances in which he said she had misrepresented facts about her use of the deposition transcripts. He also cited her for failing to promptly return the transcripts to the court when ordered to do so.
But the judge did not reprimand Dorsey & Whitney New York litigation head Zachary W. Carter, even though he oversaw the firm's efforts to return the transcripts while Peters was out of the country on vacation. The judge said Carter, the former Eastern District of New York U.S. Attorney, made an "error in judgment" by failing to inform the court or Peters that he had located some of the transcripts, but there was no evidence of "bad faith" on Carter's part.
But Peters said the judge had shown favoritism in his decision towards Carter, whom she said was primarily responsible for the difficulties with the return of the transcipts, for "political reasons."
Apart from its length and loquaciousness, Baer's decision was unusual in that he reprimanded the lawyers but did not impose any monetary sanctions. He said he would not do so because the case was settled and he thought the parties had already expended significant sums. Moreover, he said that monetary sanctions were not the primary concern of his decision.
"If among the basic goals of our profession are 'protection of the public' and 'preservation of confidence by the public,' then misconduct such as that on display here deserves to see the light of day," the judge wrote in Wolter Kluwers Financial Services Inc. v. Scivantage, 07 Civ. 2352.
The judge said he would be forwarding his decision to the Departmental Disciplinary Committee.
In a statement, the firm said: "Dorsey & Whitney attorneys take very seriously their obligations as officers of the court in all litigated matters. The firm has the utmost respect for the court system, and strives to adhere to all court rules and orders. As the firm learned of the issues in this litigation, we took appropriate actions, including supervision of Kristan Peters, based on information we knew at the time."
Peters, who joined Dorsey & Whitney as a partner in January, left the firm in June and is now a solo practitioner in New York and Connecticut.
