Case Information
1916 cv Kristan L. v. Grievances
In the
United States Court of Appeals
For the Second Circuit ________
A UGUST T ERM cv K RISTAN L. P ETERS , Appellant,
C OMMITTEE ON G RIEVANCES FOR THE U NITED S TATES D ISTRICT C OURT
FOR THE S OUTHERN D ISTRICT OF N EW Y ORK ,
Appellee.
________ Appeal United States District Court for Southern District New York.
M (CM) ― Colleen McMahon, , Grievances.
________ A RGUED : F EBRUARY 19, D ECIDED : A PRIL ________
Before: C ABRANES S ACK W ESLEY Circuit Judges
________
Kristan Peters, attorney admitted bars Connecticut, appeals Grievances United States District Court Southern District of New York (the “Committee”) suspending practicing law the Southern District of New York for seven years, based on conclusion she violated various provisions New York Code Professional Responsibility (“Professional Code”), NYCRR §§ 1200.1 et seq ., while partner law firm Dorsey & Whitney challenges both finding violated Professional reasonableness seven ‐ year suspension.
Upon record, find no error conclusion Code. hold further well within its informed ordering seven suspension, notwithstanding lack directly analogous precedent, on conclusion sui generis
Accordingly, AFFIRM judgment suspending practice Southern District New period years.
________
E LKAN A BRAMOWITZ (Catherine M. Foti, Daniel F. Wachtell, brief ), Morvillo Abramowitz Grand Iason Anello, P.C., New York, NY, Appellant Kristan L. Peters, Q IAN A. G AO (David B. Tulchin, Esterina Giuliani, brief ), York, NY, Appellee Grievances
________
PER CURIAM:
Kristan Peters, an attorney admitted the bars of New York Connecticut, appeals the April of the on Grievances for the United States District Court for the Southern District of New York (the “Committee”) suspending practice the Southern District New York (“SDNY”) seven years, on conclusion she violated various provisions the Code Professional Responsibility (“Professional Code”), NYCRR §§ 1200.1 et seq ., while partner law firm Dorsey Whitney challenges both finding violated Professional reasonableness seven year suspension.
This comes us appeal second time, after vacated Committee’s order suspending term seven years, remanded instructions to, inter alia, independent evidentiary hearing charges. On new record, find no error conclusion Code. hold further well within its informed ordering suspension, notwithstanding lack directly analogous precedent, conclusion conduct sui generis .
Accordingly, AFFIRM judgment of suspending Peters practice in Southern District period years.
BACKGROUND
A. Charges Against Peters facts underlying challenged suspension have been repeated in several opinions, over hundreds pages, and need be re stated here. Briefly, charges against arose out as partner law firm Dorsey Whitney, in course litigation in SDNY before Harold Baer, Jr. (the “ Wolters Kluwer litigation”). charged principally (1) instructing
associate, Jordan Brackett, “mark up” deposition transcripts theory markings would bring transcripts under protection attorney work product privilege, thereby exempting them Baer’s order all discovery returned District Court, attempting mislead Court those events (the “Brackett Allegation,” “Charge One”); “cop[ying] transcripts order[ing] additional transcripts intentional disregard court orders,” “us[ing] transcripts a[ ] [related] action Massachusetts,” knowing violation *5 5 13 confidentiality order (the “Confidentiality Order”) entered by Judge Baer (the “Confidentiality Order Allegation,” “Charge Three”). [3] See January 30, 2008 Order Show Cause, Special Appendix (“SPA”) 1
B. Procedural History outline extensive procedural history this case only
insofar relevant Peters’s claims appeal.
In 2007, after conducting sanctions hearing regarding during Wolters Kluwer litigation, Judge Baer imposed non monetary sanctions Peters violating referred Committee further disciplinary proceedings.
In 2009, Committee issued final ruling [4] Peters had at least three disciplinary rules connection with charges (outlined above) against her: (1) Disciplinary Rule (“DR”) 1 ‐ 102(A)(5), prohibiting lawyer from engaging “conduct prejudicial administration justice”; DR 102(A)(4), *6 6 13 ‐ prohibiting a lawyer from engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation”; DR 7 ‐ 106(A), prohibiting a lawyer “disregard[ing] advis[ing] [a] client disregard . . . ruling . . . made the course a proceeding.” 22 N.Y.C.R.R. §§ 1200.33, 1200.37. As penalty, the Committee initially ordered disbarment, but, on reconsideration, imposed seven ‐ suspension.
On appeal the decision suspending Peters years, we applied “more exacting [standard] than ordinary abuse standard,” light fact that had based conclusions on findings Baer, who had, nature things, as “accuser, fact finder sentencing judge all one.” In re Peters 381, n.4 (2d Cir. 2011) (internal quotation marks omitted).
Applying standard, vacated findings regarding Brackett Allegation basis entitled to, had received, independent evidentiary hearing. Id. also vacated charge based Confidentiality Allegation, holding although Confidentiality Order, had made insufficient findings whether had requisite culpable state mind. vacating charge, emphasized “free [on remand] make new determination, detailed factual findings, *7 7 13 whether Peters a culpable state mind . . . and, if so, discipline accordingly.” [6] Id. at 397 98.
On remand, Judge Colleen McMahon, acting as Chairman Pro Tempore the Committee, ultimately referred the matter Magistrate Judge Lisa M. Smith, who took submissions and heard eleven full days testimony. [7] Smith then issued a 118 page Report and Recommendation (“R&R”) concluding that during the Wolters Kluwer litigation the recommending a five suspension. [8] In an Order, adopted finding Peters had violated Professional but concluded “this case is sui generis ― and deserving [a seven year suspension].” Peters moved reconsideration, and relief judgment, both which denied.
It is against this backdrop we review appeal.
DISCUSSION
On appeal, Peters claims principally that: (1) she was denied full and fair disciplinary hearing in proceedings before Smith Committee, resulting in erroneous conclusion relevant disciplinary rules; “abused discretion” in imposing suspension, which outside range discipline imposed in comparable cases, improperly considered aggravating factors which lacked notice. address “liability” claim “sentencing” claim turn.
A. Conclusion Violated Code general, review “[t]he decision whether impose disciplinary sanctions attorney [under] an abuse standard.” Grievance Comm. S. Dist. N.Y. Simels , F.3d *9 9 13 (2d Cir. 1995); F.3d 384. A court “abuse[s] its discretion” when “base[s] ruling an erroneous view law clearly erroneous assessment evidence, or render[s] decision cannot be located within range permissible decisions.” Sims v. Blot, (2d Cir. 2008) (citations and internal quotation marks omitted).
1. The Brackett Allegation (Charge One) The challenges raises with regard to finding guilt Brackett Allegation relate almost exclusively to Judge Smith’s credibility determinations and assessment conflicting evidence. As set forth above, Judge Smith conducted extensive evidentiary hearing, approximately five and one half days were devoted Peters’s testimony. Smith also considered testimony Brackett, numerous other lawyers staff members Dorsey Whitney, reaching conclusions. then reviewed R&R’s “extensive, record ‐ findings,” along specific objections. SPA During process, transcripts hearing parties’ exhibits also available Committee. adopting R&R, properly accorded substantial deference Smith’s credibility determinations, Anderson City Bessemer City U.S. (1985), found them “supported substantial evidence.” SPA also independently concluded lacked credibility. See (noting “effort minimize role lawsuit unfolding events seriously wounded her credibility in the eyes of Smith of Committee”).
Our review of record reveals no error, much less clear error, in Smith’s findings, which adopted after own record. Accordingly, conclude arguments with respect to Brackett Allegation are without merit. Confidentiality Order Allegation (Charge Three) only open question regarding Confidentiality Order Allegation is whether with requisite “culpable state mind,” defined as “venal intent.” at That portentous term, least context merely means “scienter, deceit, intent mislead, knowing failure correct misrepresentations.” Matter Altomerianos A.D.2d (1st Dep’t 1990) (internal quotation marks omitted); see also id. (invoking term “venal intent” time noting: “That venal intent necessary element DR 1–102(A)(4) think compelled definition fraud given . . . Code ‘not includ[ing] . . . lacks element scienter, deceit, intent mislead, [etc.] .’”).
As evidence culpable state mind, cited, among other things, “e mails demonstrated familiarity terms Confidentiality Order,” evidence other partners told Confidentiality did permit use materials related litigation Massachusetts. SPA 149. The Committee found “deliberate[] [choice] to obtain additional copies transcripts after being ordered to surrender them lying to court reporter,” her “far fetched wholly implausible explanation conduct,” was “strong evidence culpable state mind.” SPA findings are sufficient establish
requisite culpable intent, nothing in our review record suggests they clearly erroneous or “abused discretion” in sustaining Charge Three.
B. Seven Year Suspension
Our review sanction imposed in disciplinary proceeding analogous our review sentence imposed ordinary criminal action. Where, here, there has been “a very great deal process,” 162, no procedural error, our “abuse discretion” review akin review “substantive unreasonableness.” United States Rigas F.3d (2d Cir. 2009). As have explained, such “provide[s] backstop those few cases that, although procedurally correct, would nonetheless damage administration justice because sentence imposed shockingly high,” results “manifest injustice,” “otherwise unsupportable as matter law.” Id. at 123. determining appropriate sanction, Judge Smith
considered mitigating and aggravating factors, prejudice caused Peters’s actions, and relevant authorities, directed by this Court. See at 398. Judge Smith recognized Peters’s clean disciplinary record and favorable character testimony, but noted her apparent, continuing, lack remorse. She also considered: (1) Peters’s refusal acknowledge wrongful nature her conduct; (2) “pattern providing testimony that placed blame any all wrongdoing all other attorneys,” SPA 127; (3) “instances untruthful” hearing, SPA 132; (4) fact came “dangerously close engaging bad faith obstruction disciplinary proceeding,” SPA 137; Peters’s substantial legal experience, SPA 139. Notwithstanding “seriousness [the] misconduct,” Judge Smith recommended five year suspension due inability find analogous resulting longer suspension. SPA took Judge Smith’s recommendation “quite seriously,” SPA but concluded suspension warranted under circumstances. SPA found “most serious failing”—which deemed “particularly heinous”—to “corruption young inexperienced lawyer, over whom had power authority.” SPA Additional aggravating factors noted Committee attempts “salvage her reputation expense of . . . Mr. Brackett”; “habit of twisting truth”; “flagrant mischaracterization record”; fact that, Committee’s view, had “yet accept any responsibility serious professional wrongdoing.” Accordingly, concluded that was sui generis deserving a longer punishment.
Our direction that should consider relevant precedent intended inform, not confine, Committee’s exercise its determining appropriate sanction a violation Code. Every such violation is, some sense, sui generis ; is, requires fact particular inquiry amenable rigid calculus other cases. It reason have Grievances may draw upon cumulative authority panel experienced judges. view conclusions regarding nature conduct, cannot say imposition suspension “substantively unreasonable,” shocking judicial conscience, otherwise unsupportable.
CONCLUSION
To summarize:
(1) The Committee did make clearly erroneous factual findings regarding Brackett Allegation (Charge One), properly sustained charge against Peters.
(2) made sufficient findings support conclusion “venal intent,” term understood law professional responsibility, disobeying Confidentiality (Charge Three), properly sustained charge against Peters. Upon consideration aggravating mitigating
factors relevant precedent, reasonably exercised informed imposing seven year suspension, notwithstanding absence directly analogous law imposing comparable sanction. For reasons set forth above, AFFIRM judgment suspending practice Southern District period seven years.
[1] At time Order, members District Judge P. Kevin Castel (Chairman), Chief Judge Loretta A. Preska, District Judges Vincent L. Briccetti, Katherine B. Forrest, Paul A. Gardephe, John F. Keenan, Colleen McMahon, Louis L. Stanton, Richard J. Sullivan, Magistrate Frank Maas. Judge McMahon served Chairman Pro Tempore this matter, Briccetti took no part consideration.
[2] For detailed background, see, e.g. January Report Recommendation, Special Appendix (“SPA”) 143; re F. Supp. 2d 331–34 (S.D.N.Y. 2008) (interim suspension order).
[3] The allegations formed basis original “Charge Two” against Peters not issue remand.
[4] ordered show cause why should disciplined. On submissions record before Judge Baer, concluded “Judge Baer’s findings are strongly supported record,” suspended temporarily practicing SDNY, but deferred final adjudication pending resolution appeal Baer’s sanctions order. In re F. Supp. 2d (S.D.N.Y. 2008). 21, Opinion, this Court affirmed Baer’s sanctions order against Peters, but vacated sanctions against Dorsey Whitney junior partner, Marc Reiner. See Wolters Kluwer Fin. Servs., Inc. Scivantage (2d Cir. 2009). then proceeded final adjudication charges against Peters.
[5] Effective New York Rules Professional Conduct replaced Code Responsibility. Former DR 102(A)(5) is now RPC 8.4(d); former DR 102(A)(4) now RPC 8.4(c); former DR 106(A) now RPC 3.4(c). rules are substantively unchanged. See
[6] expressly did “not . . . suggest that [either of] the charges against Peters were improperly brought,” left open the possibility that the might again impose a suspension or disbar Peters as long as it explained the rationale for the sanction imposed. Peters , 398.
[7] During the hearing, the was represented by the same counsel as on appeal. Peters had different counsel before the Committee.
[8] On this second appeal, Peters claims that the charges against were inappropriately expanded on remand. See Appellant’s Br. This claim is without merit, substantially the reasons stated the R&R, see SPA n.4, 38, the 10, Order, see short, charges formed the basis the Committee’s suspension within scope original charges against Peters, which were not narrowed remand. See Note 5, ante . Moreover, had ample notice charges against her, was sanctioned. Finally, extent viewed evidence against more harshly after independent hearing before Smith, a risk assumed seeking further process, there is no evidence Committee’s second decision result vindictiveness. See North Carolina v. Pearce U.S. (“[A] corollary power retry defendant is power, upon defendant’s reconviction, impose whatever sentence may legally authorized, whether not greater than sentence imposed after first conviction,” long as higher sentence not result “vindictiveness against defendant having successfully attacked his conviction .”), overruled other grounds Alabama Smith U.S. (1989). Notably, final decision here did impose harsher “sentence” than imposed originally.
[9] One exception this deferential standard is where party appeals “the interpretation particular disciplinary rule,” which case our is “plenary,” de novo Simels F.3d at Another where are reviewing decision judge necessarily “accuser, fact finder sentencing judge,” appeal. n.4. Neither these exceptions applies here.
[10] remanding, noted if found merely negligent disobeying Order, “might warrant severe, any, disciplinary measures,” whereas if found “failure familiarize herself [O]rder bad faith,” such finding might warrant discipline.
[11] argument she lacked notice aggravating factors Smith would consider without merit. As noted, Smith made clear would consider factors set forth ABA Center Responsibility Standards, did just that. See
[12] suspension dates date suspended pendente lite