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A federal judge in Manhattan last week delivered a 129-page manifesto against declining civility in the legal profession in the course of sanctioning the law firm of Dorsey & Whitney and two of its partners. Southern District of New York Judge Harold Baer opened his lengthy decision with a discussion of how the “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 observations 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.” A STUDIED DISREGARD The attorney misconduct that caused the judge’s ire 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 molten. Baer in particular hammered former Dorsey & Whitney partner Kristan 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.” Peters 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,” Peters says 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 adds. 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. PLAYING FAVORITES? But the judge did not reprimand Dorsey & Whitney New York litigation head Zachary 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 U.S. attorney for the Eastern District of New York, had 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. Peters says the judge showed favoritism in his decision towards Carter, whom she said was primarily responsible for the difficulties with the return of the transcripts, for “political reasons.” Apart from its length, 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. He added that 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.
Anthony Lin is a reporter with the New York Law Journal , an ALM publication.

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