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Southern District of New York Bars Former Law Firm Partner Pending Misconduct Probe
Attorney's interim suspension is likely to be reciprocated in other jurisdictions
New York Law Journal
April 14, 2008
A former Dorsey & Whitney partner who was previously sanctioned by a federal judge for discovery misconduct has been suspended from practice in the Southern District of New York pending the outcome of disciplinary proceedings.
Kristan L. Peters had been the subject of a 129-page sanction order issued in November by Southern District Judge Harold Baer, who said the former Dorsey & Whitney litigator's actions demonstrated declining ethical standards in the legal profession. The judge referred Peters for discipline to the Southern District's grievance committee.
In an unusual written decision by the committee, its chairman, Judge Jed S. Rakoff, said Peters' interim suspension was warranted because of the "nature and seriousness of the charges against Ms. Peters, the strength of the record supporting those charges, and the danger of recurrence as demonstrated by respondent's lack of appreciation of the wrongfulness of her misconduct."
That misconduct arose in the course of a trade secrets lawsuit before Baer that financial software maker Wolters Kluwers Financial Services Inc. brought against a competing company called Scivantage.
On April 13, 2007, Peters, serving as Wolters Kluwers' lead counsel, had received in discovery transcripts of depositions covered by a protective order. At around the same time, she was seeking voluntary dismissal of the New York case and refiling an identical suit in federal court in Massachusetts.
Concerned that Peters was using the transcripts in the Massachusetts complaint, Baer ordered the immediate return of the documents to court custody. In his sanctions order, which also reprimanded Dorsey & Whitney and another partner at the firm, Marc Reiner, Baer focused primarily on long delays in the return of these documents, which he regarded as purposeful and evidence of "bad faith."
The grievance committee expressed particular concern about Peters' instruction to Jordan Brackett, a first-year associate at Dorsey & Whitney, to "scribble all over" unmarked transcripts so they could be called attorney work-product and not have to be returned. Brackett reported the incident to firm management and testified at the sanctions hearing that he was "shocked" by Peters' statement.
Peters has claimed her comments were made in jest, but the grievance committee found that explanation dubious.
"We find such assertions highly unlikely on their face," Judge Rakoff wrote in In the Matter of Kristan Peters, "but, even if respondent subjectively believed her statements to be a 'joke,' the statements were made in a context in which there was a high likelihood that they would be taken seriously by a young associate, and this, at a minimum, evidences a reckless disregard of the prohibitions of the New York disciplinary code."
Peters, represented by Judd Burstein, has appealed Baer's sanction order to the 2nd U.S. Circuit Court of Appeals. The grievance committee said it would stay a final adjudication of disciplinary charges against Peters pending the outcome of her appeal.
Burstein, of Judd Burstein, PC, pointed out Friday that the committee's decision, while "very disappointing," was not final.
"The key here is a successful appeal of the District Court's underlying sanctions order," he said in an e-mailed statement. "In my view, the record does not establish any acts of dishonest or other improper conduct by Ms. Peters. Rather, I believe that we can demonstrate to the Court of Appeals that Ms. Peters acted in a professionally responsible and ethical manner. If we prevail on the appeal, I am very hopeful that the Committee will conclude that no discipline of Ms. Peters would be appropriate."
Peters declined to comment on the case Friday. She has previously accused Baer of being biased against her and showing favoritism in his sanction by not reprimanding Dorsey & Whitney partner Zachary W. Carter. Carter, a former Eastern District U.S. Attorney who, though not otherwise involved in the case, coordinated the return of the transcripts while Peters was initially out of the country on vacation.
Peters, who left Dorsey & Whitney last June, has also previously been a partner at Fulbright & Jaworski and Pillsbury Winthrop Shaw Pittman. She has been practicing at her own law firm in New York and Connecticut since last year, though the Southern District's interim suspension is likely to be reciprocated in New York state court and other jurisdictions.
The case was considered by the full grievance committee, which, along with Rakoff, included Judges Kimba M. Wood, P. Kevin Castel, Charles S. Haight, John F. Keenan, Gerard E. Lynch, Colleen McMahon, Louis L. Stanton and Magistrate Judge Debra Freeman.
