Kristan L. PETERS, Appellant, v. COMMITTEE ON GRIEVANCES FOR the UNITED STATES DISTRICT COURT FOR the SOUTHERN DISTRICT OF NEW YORK, Appellee.
No. 13-1916-cv
United States Court of Appeals, Second Circuit.
April 4, 2014
748 F.3d 456
Argued: Feb. 19, 2014.
The Court noted that “there are significant policy reasons that favor recognizing an independent medical monitoring cause of action,” including the interest in early detection and treatment for persons “whose exposure has resulted in an increased risk of disease.” Id. at 451, 982 N.Y.S.2d at 46-47. But it concluded that those interests were outweighed by other policy considerations, including “the potential systemic effects of creating a new, full-blown, tort law cause of action,” id. (internal quotation marks omitted); the technical and administrative challenges of implementing a medical monitoring program, see id. at 452, 982 N.Y.S.2d at 47; and the potential for allowing asymptomatic persons who may never contract a smoking-related disease to recover for monitoring, “lead[ing] to the inequitable diversion of money away from those who have actually sustained an injury as a result of the exposure,” id. at 451, 982 N.Y.S.2d at 47. The Court of Appeals concluded that the latter policy considerations and the fact that the legislature is in a better position than the judiciary “to study the impact and consequences of creating such a cause of action, including the costs of implementation and the burden on the courts in adjudicating” independent claims by asymptomatic plaintiffs--“militate against a judicially-created independent cause of action for medical monitoring.” Id. at 452, 982 N.Y.S.2d at 47.
In light of the New York Court of Appeals’ ruling that New York does not, in the circumstances pleaded here, recognize an independent cause of action for medical monitoring, we affirm the judgment of the district court dismissing plaintiffs’ medical monitoring claims.
As all of the issues material to this appeal have now been resolved, the mandate shall issue in due course.
Elkan Abramowitz (Catherine M. Foti, Daniel F. Wachtell, on the brief), Morvillo Abramowitz Grand Iason & Anello, P.C., New York, NY, for Appellant Kristan L. Peters.
Qian A. Gao (David B. Tulchin, Esterina Giuliani, on the brief), New York, NY, for Appellee Committee on Grievances.
Before: CABRANES, SACK and WESLEY, Circuit Judges.
Kristan Peters, an attorney admitted to the bars of New York and Connecticut, appeals from the April 10, 2013 Order of the Committee on Grievances for the United States District Court for the Southern District of New York (the “Committee“)1 suspending her from practice in the Southern District of New York (“SDNY“) for seven years, based on a conclusion that she violated various provisions of the New York Code of Professional Responsibility (“Professional Code“),
This case comes to us on appeal for the second time, after we vacated the Committee‘s first order suspending Peters for a term of seven years, and remanded with instructions to, inter alia, conduct an independent evidentiary hearing on the charges. On review of the new record, we find no error in the Committee‘s conclusion that Peters violated the Professional Code. We hold further that the Committee acted well within its informed discretion in ordering a seven-year suspension, notwithstanding the lack of directly analogous precedent, based on its conclusion that Peters‘s conduct was sui generis.
Accordingly, we AFFIRM the judgment of the Committee suspending Peters from practice in the Southern District of New York for a period of seven years.
BACKGROUND
A. Charges Against Peters
The facts underlying the challenged suspension have been repeated in several opinions, over hundreds of pages, and need not be re-stated here.2 Briefly, the charges against Peters arose out of her conduct as a partner at the law firm of Dorsey & Whitney, in the course of litigation in SDNY before Judge Harold Baer, Jr. (the “Wolters-Kluwer litigation“).
B. Procedural History
We outline the extensive procedural history of this case only insofar as it is relevant to Peters‘s claims on appeal.
In 2007, after conducting a sanctions hearing regarding Peters‘s conduct during the Wolters--Kluwer litigation, Judge Baer imposed non-monetary sanctions on Peters for violating the Professional Code, and referred the case to the Committee for further disciplinary proceedings.
In 2009, the Committee issued a final ruling4 that Peters had violated at least three disciplinary rules in connection with the charges (outlined above) against her: (1) Disciplinary Rule (“DR“) 1-102(A)(5), prohibiting a lawyer from engaging in “conduct that is prejudicial to the administration of justice“; (2) DR 1-102(A)(4), prohibiting a lawyer from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation“; and (3) DR 7-106(A), prohibiting a lawyer from “disregard[ing] or advis[ing] [a] client to disregard a ruling made in the course of a proceeding.”5
On appeal from the Committee‘s 2009 decision suspending Peters for seven years, we applied a “more exacting [standard] than the ordinary abuse-of-discretion standard,” in light of the fact that the Committee had based its conclusions on the findings of Judge Baer, who had, in the nature of things, acted as “accuser, fact finder and sentencing judge all in one.” In re Peters, 642 F.3d 381, 384 & n. 4 (2d Cir.2011) (internal quotation marks omitted).
On remand, Judge Colleen McMahon, acting as Chairman Pro Tempore of the Committee, ultimately referred the matter to Magistrate Judge Lisa M. Smith, who took submissions and heard eleven full days of testimony.7 Judge Smith then issued a 118-page Report and Recommendation (“R & R“) concluding that Peters‘s conduct during the Wolters-Kluwer litigation violated the Professional Code, and recommending a five-year suspension.8
In an April 10, 2013 Order, the Committee adopted the finding that Peters had violated the Professional Code, but concluded that “this case is sui generis--and deserving of [a seven-year suspension].” SPA 155. Peters moved for reconsideration, and relief from judgment, both of which the Committee denied.
It is against this backdrop that we review Peters‘s appeal.
DISCUSSION
On appeal, Peters claims principally that: (1) she was denied a full and fair disciplinary hearing in the proceedings before Judge Smith and the Committee, resulting in the erroneous conclusion that she violated the relevant disciplinary rules; and (2) the Committee “abused its discretion” in imposing a seven-year suspension, which was outside the range of discipline imposed in comparable cases, and improperly considered aggravating factors of which Peters lacked notice. We address the “liability” claim and the “sentencing” claim in turn.
In general, we review “[t]he decision whether to impose disciplinary sanctions on an attorney [under] an abuse-of-discretion standard.” Grievance Comm. for S. Dist. of N.Y. v. Simels, 48 F.3d 640, 645 (2d Cir.1995); Peters, 642 F.3d at 384. A court “abuse[s] its discretion” when it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (citations and internal quotation marks omitted).9
1. The Brackett Allegation (Charge One)
The challenges Peters raises with regard to the finding of guilt on the Brackett Allegation relate almost exclusively to Judge Smith‘s credibility determinations and the assessment of conflicting evidence. As set forth above, Judge Smith conducted an extensive evidentiary hearing, approximately five-and-one-half days of which were devoted to Peters‘s testimony. Judge Smith also considered testimony from Brackett, and numerous other lawyers and staff members from Dorsey & Whitney, in reaching her conclusions.
The Committee then reviewed the R & R‘s “extensive, record-based findings,” along with Peters‘s specific objections. SPA 146-47. During the review process, transcripts of the hearing and the parties’ exhibits were also available to the Committee. In adopting the R & R, the Committee properly accorded substantial deference to Judge Smith‘s credibility determinations, Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985), and found them to be “supported by substantial evidence.” SPA 148. The Committee also independently concluded that Peters lacked credibility. See SPA 149 (noting that Peters‘s “effort to minimize her role in the lawsuit and the unfolding events seriously wounded her credibility in the eyes of Judge Smith and of the Committee“).
Our review of the record reveals no error, much less clear error, in Judge Smith‘s findings, which the Committee adopted after its own review of the record. Accordingly, we conclude that Peters‘s arguments with respect to the Brackett Allegation are without merit.
2. The Confidentiality Order Allegation (Charge Three)
The only open question regarding the Confidentiality Order Allegation is whether Peters acted with the requisite “culpable state of mind,” defined as “venal intent.” Peters, 642 F.3d at 394-95. That portentous term, at least in the context of the Professional Code, merely means “scienter, deceit, intent to mislead, or knowing failure to correct misrepresenta-
As evidence of Peters‘s culpable state of mind, the Committee cited, among other things, “e-mails that demonstrated her familiarity with the terms of the Confidentiality Order,” and evidence that other partners told Peters that the Confidentiality Order did not permit her to use materials in a related litigation in Massachusetts.10 SPA 149. The Committee found Peters‘s “deliberate[] [choice] to obtain additional copies of the transcripts after being ordered to surrender them by lying to the court reporter,” and her “far-fetched and wholly implausible explanation for her conduct,” was “strong evidence of her culpable state of mind.” SPA 151.
The Committee‘s findings are sufficient to establish the requisite culpable intent, and nothing in our review of the record suggests that they were clearly erroneous or that the Committee “abused its discretion” in sustaining Charge Three.
B. The Seven-Year Suspension
Our review of the sanction imposed in a disciplinary proceeding is analogous to our review of a sentence imposed in an ordinary criminal action. Where, as here, there has been “a very great deal of process,” SPA 162, and no procedural error, our “abuse-of-discretion” review is akin to a review for “substantive unreasonableness.” United States v. Rigas, 583 F.3d 108, 114, 121-22 (2d Cir.2009). As we have explained, such review “provide[s] a backstop for those few cases that, although procedurally correct, would nonetheless damage the administration of justice because the sentence imposed was shockingly high,” results in “manifest injustice,” or is “otherwise unsupportable as a matter of law.” Id. at 123.
In determining the appropriate sanction, Judge Smith considered mitigating and aggravating factors, the prejudice caused by Peters‘s actions, and the relevant authorities, as directed by this Court. See Peters, 642 F.3d at 398. Judge Smith recognized Peters‘s clean disciplinary record and favorable character testimony, but noted her apparent, and continuing, lack of remorse. She also considered: (1) Peters‘s refusal to acknowledge the wrongful nature of her conduct; (2) the “pattern of providing testimony that placed blame for any and all wrongdoing on all of the other attorneys,” SPA 127; (3) “instances in which Peters was untruthful” at the hearing, SPA 132; (4) the fact that Peters came “dangerously close to engaging in bad faith obstruction of the disciplinary proceeding,” SPA 137; and (5) Peters‘s substantial legal experience, SPA 139.11 Notwithstanding the “seriousness of [the] misconduct,” Judge Smith recommended a
The Committee took Judge Smith‘s recommendation “quite seriously,” SPA 154, but concluded that a seven-year suspension was warranted under the circumstances. SPA 155. The Committee found Peters‘s “most serious failing“--which it deemed “particularly heinous“--to be her “corruption of a young and inexperienced lawyer, over whom she had power and authority.” SPA 154. Additional aggravating factors noted by the Committee were Peters‘s attempts to “salvage her reputation at the expense of ... Mr. Brackett“; her “habit of twisting the truth“; her “flagrant mischaracterization of the record“; and the fact that, in the Committee‘s view, Peters had “yet to accept any responsibility for ... serious professional wrongdoing.” SPA 154-55. Accordingly, the Committee concluded that the case was sui generis and deserving of a longer punishment.
Our direction that the Committee should consider relevant precedent was intended to inform, not confine, the Committee‘s exercise of its discretion in determining the appropriate sanction for a violation of the Professional Code. Every such violation is, in some sense, sui generis; that is, it requires a fact-particular inquiry and is not amenable to a rigid calculus based on other cases. It is for that reason that we have a Committee on Grievances that may draw upon the cumulative authority of a panel of experienced judges. In view of the Committee‘s conclusions regarding the nature of Peters‘s conduct, we cannot say that its imposition of a seven-year suspension was “substantively unreasonable,” shocking to the judicial conscience, or otherwise unsupportable.
CONCLUSION
To summarize:
- The Committee did not make clearly erroneous factual findings regarding the Brackett Allegation (Charge One), and properly sustained that charge against Peters.
- The Committee made sufficient findings to support the conclusion that Peters acted with “venal intent,” as that term is understood in the law of professional responsibility, in disobeying the Confidentiality Order (Charge Three), and properly sustained that charge against Peters.
- Upon consideration of aggravating and mitigating factors and relevant precedent, the Committee reasonably exercised its informed discretion by imposing a seven-year suspension, notwithstanding the absence of directly analogous case law imposing a comparable sanction.
For the reasons set forth above, we AFFIRM the judgment of the Committee suspending Peters from practice in the Southern District of New York for a period of seven years.12