In re Peters
| Decision Date | 23 November 2016 |
| Docket Number | No. 15–BG–699,15–BG–699 |
| Citation | 149 A.3d 253 |
| Parties | In re Kristan L. Peters, Respondent. A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 415989) |
| Court | D.C. Court of Appeals |
Kristan Peters, pro se.
Wallace E. Shipp, Jr., Disciplinary Counsel, and William R. Ross, Assistant Disciplinary Counsel, for the Office of Disciplinary Counsel.
Before Beckwith and Easterly, Associate Judges, and King, Senior Judge.
On April 10, 2013, after finding that respondent Kristan Peters had violated several professional rules, the Committee on Grievances of the United States District Court for the Southern District of New York (SDNY Committee) suspended Ms. Peters from the practice of law for seven years. The District of Columbia Office of Disciplinary Counsel now recommends that we impose reciprocal discipline and suspend Ms. Peters for five years, with reinstatement conditioned upon proof of fitness to practice law. Although D.C. Bar R. XI, § 11 (e) generally requires this court to impose reciprocal discipline, Ms. Peters argues that all five enumerated exceptions to this rule apply in her case. Concluding that only one exception applies—namely, that Ms. Peters would be subject to substantially different discipline in this jurisdiction—we suspend Ms. Peters from the practice of law in the District of Columbia for a period of three years, nunc pro tunc to July 2, 2015,1 with reinstatement predicated on a finding of fitness. See D.C. Bar R. XI, §§ 3 (a)(2), 11 (e), 14 (h), 16 (a).
At the time the misconduct at issue in this case occurred, Ms. Peters was working for the law firm Dorsey & Whitney, LLP (Dorsey).2 On behalf of its client Wolters Kluwer Financial Services, Inc. (Wolters), Dorsey sued four former Wolters employees in the Southern District of New York for allegedly divulging proprietary information to their new employer. Discovery was conducted under a confidentiality order providing that certain materials “shall not be used [in] any other litigation proceeding.” After concerns were raised over personal jurisdiction, Dorsey dismissed the suit in New York and refiled it in Massachusetts. Despite court orders from the judge in New York, Ms. Peters, the partner in charge, delayed returning confidential discovery material (including deposition transcripts) and attached 115 pages of that material to a motion for temporary injunctive relief filed in the Massachusetts case.
The judge presiding over the New York case sanctioned Ms. Peters and forwarded a copy of the decision to the SDNY Committee, which suspended her for seven years backdated to April 10, 2008, the date she had first been temporarily suspended pending process. Wolters Kluwer Fin. Servs. Inc. v. Scivantage , 525 F.Supp.2d 448, 541, 550–51 (S.D.N.Y. 2007), aff'd in part, rev'd in part , 564 F.3d 110 (2d Cir. 2009).3
Because we see no basis for disturbing the SDNY Committee's findings, see part II, infra , we accept the facts as set out in the SDNY Committee's order and in a 118–page report written by a federal magistrate judge and adopted by the Committee. See D.C. Bar R. XI, § 11 (c); In re Peters , 941 F.Supp.2d at 360–62, 366.
The magistrate's report canvasses the record and supports the conclusion that Ms. Peters: (1) copied and ordered additional deposition transcripts in violation of court orders for use in the new but related action in Massachusetts and thus knowingly violated a confidentiality order entered by the presiding judge in the first case; and (2) instructed a first-year associate at Dorsey to add markings to deposition transcripts in an attempt to bring them under the protection of the attorney work-product privilege and exempt them from the presiding judge's order that all discovery be returned, and thereafter misled the court about what she had done.
In the District of Columbia, an attorney suspended or disbarred in another jurisdiction will have identical reciprocal discipline imposed on her unless she demonstrates, by clear and convincing evidence, that:
Here, Ms. Peters argues against the imposition of reciprocal discipline under each of the five prongs. Under D.C. Bar R. XI, § 11 (c), “[u]nless there is a finding by the Court under (1), (2), or (5),” an attorney will not be permitted to relitigate issues settled by another court. Id. ; see also In re Richardson , 602 A.2d 179, 181 (D.C. 1992). Ms. Peters has not satisfied this burden.4 We do conclude, however, that her conduct warrants substantially different discipline in the District of Columbia, and thus impose non-identical final discipline. See D.C. Bar R. XI, § 11 (e).
Ms. Peters was afforded thirteen prehearing conferences and a thirteen-day hearing that culminated in the issuance of a 118–page report on January 23, 2013, which was carefully reviewed and adopted by the SDNY Committee. In re Peters , 941 F.Supp.2d at 361. The Second Circuit, affirming her suspension, remarked that Ms. Peters had been given “a very great deal of process,” and Ms. Peters subsequently filed a petition for writ of certiorari with the United States Supreme Court. Peters v. Comm. on Grievances for U.S. Dist. Court 748 F.3d 456, 462 (2d Cir.), cert. denied , ––– U.S. ––––, 135 S.Ct. 448, 190 L.Ed.2d 330 (2014). Ms. Peters was afforded at least the minimum notice and opportunity to be heard to which she was constitutionally entitled and has not been deprived of due process.
The SDNY Committee, in reviewing the 118–page report written by the magistrate judge, found it “thorough and well-documented” and found “every conclusion ... amply supported by the evidence.” In re Peters , 941 F.Supp.2d at 362. The Committee adopted the magistrate's report but chose to impose a seven-year suspension rather than the five years that the magistrate recommended. Id. at 360, 366.
Ms. Peters has failed to show by clear and convincing evidence that there “was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusions on that subject.” D.C. Bar R. XI, § 11 (c)(2). Ms. Peters's attacks on the factual findings that establish her misconduct implicitly target the magistrate's careful credibility determinations regarding the live testimony before her, including a finding that Ms. Peters's testimony was not credible. “[I]t is axiomatic that determinations of credibility and the weighing of evidence are within the province of the fact-finder.” In re Kanu , 5 A.3d 1, 10 (D.C. 2010) (alteration in original) (quoting Ventura v. United States , 927 A.2d 1090, 1104 (D.C. 2007) ). Ms. Peters's filings do not show by clear and convincing evidence that the magistrate's findings, adopted by the SDNY Committee, were unsupported.
Ms. Peters highlights the almost eight years that have elapsed since the New York disciplinary proceedings began, asking the court to conclude that imposition of an identical sanction would be a grave injustice. We have already foreclosed such an argument in In re Davy , 25 A.3d 70 (D.C. 2011), where, in response to the attorney's contention that the seven-year delay between the original imposition of discipline and the reciprocal discipline action constituted a “grave injustice,” we held that “when the delay of judicial decision-making is largely a result of the respondent's own actions or inactions, such circumstances are not sufficiently unique or compelling to mitigate discipline.” Id. at 73–74 (citing In re Fowler, 642 A.2d 1327, 1331 (D.C. 1994) ). We reach the same conclusion here, where Ms. Peters failed to notify Bar Counsel that she had been disciplined in another jurisdiction until seven years after her first interim suspension in the Southern District of New York. See infra Part III.
Ms. Peters's further argument that punishment serves no purpose because her 28–year career is otherwise unblemished and there is no reason to believe she will reoffend is also unavailing. The SDNY Committee found that Ms. Peters had a “habit of twisting the truth,” that she “continually tried to shift blame to virtually every other person who came within arm's length of the Wolters Kluwer case,” and that she had “flagrant[ly] mischaracterize[ed] ... the record,” and made “meritless objections.” In re Peters , 941 F.Supp.2d at 366. The Committee concluded that this behavior “indicate[d] that she ha[d] yet to accept any responsibility for what the Committee views as serious professional wrongdoing.” Id. Because Ms. Peters continues to deny any responsibility for her actions and has persisted in long-rejected characterizations of the record, identical punishment would not constitute a grave injustice.
Disciplinary Counsel concedes that a reciprocal seven-year suspension would be inappropriate, as this would be a longer period than standard for disbarment and far longer than allowed in an ordinary suspension case originating in the District of Columbia. See D.C. Bar R. XI, §§ 3 (a)(2), 16 (a); see also In re Jacoby , 945 A.2d 1193, 1199–200 (D.C. 2008) (...
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In re Klayman
... ... "To require proof of fitness as a condition of reinstatement after suspension, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law." In re Peters , 149 A.3d 253, 260 (D.C. 2016) (per curiam) (internal quotation marks omitted). Mr. Klayman challenges the proposed sanction in two ways. First, he argues that the record does not support the proposed sanction because the record does not support the findings of misconduct. For the reasons we have ... ...