IN RE KRISTAN L. PETERS ( 2016 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-BG-699 11/23/16
IN RE KRISTAN L. PETERS, Respondent.
A Suspended Member of the Bar of the
District of Columbia Court of Appeals
(Bar Registration No. 415989)
On Report and Recommendation
of the Board on Professional Responsibility
(BDN-113-15)
(Submitted January 6, 2016 Decided November 23, 2016)
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.
PER CURIAM: 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
2
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).
I. Background
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
1
On July 2, 2015, this court ordered Ms. Peters’s interim suspension.
2
The facts here are drawn from Wolters Kluwer Financial Services, Inc. v.
Scivantage, 564 F.3d 110, 112-13 (2d Cir. 2009).
3
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
3
The first disciplinary decision by the SDNY Committee after receipt of the
opinion ordering sanctions was vacated and remanded for lack of appropriate
process. In re Peters, 543 F. Supp. 2d 326 (S.D.N.Y. 2008), vacated, 642 F.3d 381
(2d Cir. 2011) (“[W]e do not intend to suggest that the charges against Peters were
improperly brought, only that certain procedures and findings were inadequate.”).
Our decision is based only on the subsequent SDNY Committee decision and the
decision affirming it. In re Peters, 941 F. Supp. 2d 359, as corrected (Apr. 15,
2013), aff’d sub nom. Peters v. Comm. on Grievances for U.S. Dist. Court, 748
F.3d 456 (2d Cir. 2014).
4
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.
II. Imposition of Reciprocal Discipline
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:
(1) The procedure elsewhere was so lacking in notice or
opportunity to be heard as to constitute a deprivation of
due process; or
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(2) 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; or
(3) The imposition of the same discipline would result in
grave injustice; or
(4) The misconduct established warrants substantially
different discipline in the District of Columbia; or
(5) The misconduct elsewhere does not constitute
misconduct in the District of Columbia.
D.C. Bar R. XI, § 11 (c).
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,
4
Though Ms. Peters points out that other jurisdictions have declined to
impose reciprocal discipline against her, we follow our own law in making an
independent determination whether reciprocal discipline is warranted in any given
case.
6
§ 11 (e).
A. Deprivation of Due Process
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, 135 S. Ct. 448 (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.
B. Infirmity of Proof
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
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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.
C. Grave Injustice
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
8
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.
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D. Substantially Different Discipline in the District of Columbia
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) (defining exception to reciprocal
discipline rule when the sanction imposed in the foreign jurisdiction falls
substantially outside the range of sanctions that would be imposed in the District
for the same misconduct). Although Disciplinary Counsel proposes a five-year
suspension with a fitness requirement (and we adopted this language in our July 2,
2015, show cause order), Ms. Peters makes a convincing case that this too is
outside the range of sanctions that would be imposed under the circumstances and
that the difference is substantial.
“The imposition of sanctions in bar discipline, as with criminal punishment,
is not an exact science but may depend on the facts and circumstances of each
particular proceeding.” In re Cleaver-Bascombe, 986 A.2d 1191, 1202 (D.C.
2010) (citing In re Goffe, 641 A.2d 458, 463 (D.C. 1994)). In support of its
request for a five-year suspension, Disciplinary Counsel cites In re Omwenga, 49
A.3d 1235 (D.C. 2012) (disbarring an attorney for intentional misappropriation of
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a client’s funds and continuing dishonesty), and In re Cleaver-Bascombe, 986 A.2d
at 1200 (disbarring an attorney for attempting to fraudulently obtain public funds
and continuing dishonesty), as involving roughly equivalent behavior. While these
cases do involve a campaign of dishonesty, there are also many cases involving
dishonesty—but not misappropriation—that do not warrant disbarment and have
resulted in suspension of less than five years. See, e.g., In re Silva, 29 A.3d 924
(D.C. 2011) (suspending attorney for three years with a fitness requirement for
forging legal documents and continuing dishonesty); In re Vohra, 68 A.3d 766
(D.C. 2013) (suspending attorney for three years with a fitness requirement for
forging client signatures and continuing dishonesty). We also take into
consideration that Ms. Peters caused no actual harm through her misconduct and
that her legal career has been otherwise free of disciplinary infractions. See In re
Washington, 541 A.2d 1276, 1277 (D.C. 1988) (holding that, although “occurrence
of actual harm is by no means a prerequisite for disciplinary action,” the “absence
of actual harm” and “respondent’s long history of unblemished practice” were
relevant to the court’s choice of sanctions).
Although the misconduct in this case was serious, we conclude, in light of
the absence of lasting harm and Ms. Peters’s otherwise unblemished twenty eight-
year career, that the relevant actions here are appropriately remedied by a three-
year suspension. See In re Silva, 29 A.3d at 927-28; In re Vohra, 68 A.3d 771-73;
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see also D.C. Bar R. XI, § 11 (e) (allowing imposition of “such discipline as [the
court] deems appropriate” if the court finds that identical sanction is inapplicable).
E. Misconduct in the District of Columbia
The SDNY Committee found that when Ms. Peters knowingly disobeyed the
district court’s confidentiality order and instructed a first-year associate to mark up
documents, she engaged in conduct violating the following sections of the New
York Lawyer’s Code of Professional Responsibility: 1-102(A)(4) (engaging in
conduct involving fraud, dishonesty, deceit or misrepresentation),1-102(A)(5)
(engaging in conduct prejudicial to the administration of justice), 7-102(A)(5)
(knowingly making a false statement of fact or law), and 7-106(A) (disregarding
the ruling of a tribunal made in the course of a proceeding).5 See In re Peters, 941
F. Supp. 2d at 362. This behavior constitutes misconduct in the District of
Columbia. See, e.g., Rules of Prof. Conduct 3.3 (requiring candor to a tribunal),
5
In April 2009, the New York Rules of Professional Conduct replaced the
New York Lawyer’s Code of Professional Responsibility. Because of the timing
of the misconduct, the Southern District of New York referred to the older rules.
See Roy Simon, Comparing New NY Rules of Professional Conduct to Existing NY
Code of Professional Responsibility (Part II), New York Legal Ethics Reporter
(Mar. 1, 2009), http://www.newyorklegalethics.com/comparing-new-ny-rules-of-
professional-conduct-to-existing-ny-code-of-professional-responsibility-part-ii/; In
re Peters, 941 F. Supp. 2d at 362.
12
3.4 (c) (requiring fulfillment of obligation to tribunal), 8.4 (c) (proscribing conduct
involving dishonesty, fraud, deceit, or misrepresentation), 8.4 (d) (proscribing
conduct that seriously interferes with the administration of justice).
III. Concurrency of Sanction
Ms. Peters suggests that any disciplinary sanction be imposed upon her nunc
pro tunc, as disciplinary authorities in other jurisdictions have found appropriate.
“[A]n attorney sanctioned by the disciplinary authorities of another jurisdiction
should ordinarily serve his or her reciprocal District of Columbia suspension
concurrently with the suspension imposed in the original disciplining jurisdiction.”
In re Soininen, 853 A.2d 712, 728 (D.C. 2004) (quoting In re Goldberg, 460 A.2d
982, 985 (D.C. 1983)). However, “if the attorney unreasonably delays in notifying
Disciplinary Counsel that he or she has been disciplined in another state, or if the
attorney engages in the practice of law in the District of Columbia while suspended
elsewhere, then a more severe sanction may be justified.” In re Goldberg, 460
A.2d at 985.
Ms. Peters contends that she “kept the courts and bars where [she] actually
practice[s]—the Connecticut Bar and the New York Bar—fully apprised and
promptly notified at every juncture of this matter.” Disciplinary Counsel in the
District of Columbia was not notified, however, until April 10, 2015, seven years
13
after the interim suspension first issued in the Southern District of New York. Ms.
Peters suggests that because other courts—more promptly notified—stayed their
proceedings pending the outcome of the SDNY Committee’s decision and
subsequent appeals, and because she had not recently practiced in the District of
Columbia, she did not need to notify Disciplinary Counsel until her petition for
writ of certiorari was denied by the Supreme Court on November 3, 2014. Even
under this interpretation, Ms. Peters’s notification was delayed five months, and in
any event, no reading of D.C. Bar R. XI, § 11 (b), the D.C. Bar rule governing
notice, permitted Ms. Peters to forgo promptly notifying Disciplinary Counsel once
she was “subjected to professional disciplinary action” in the Southern District of
New York.6
Given Ms. Peters’s unreasonable delay in providing notice of the
disciplinary action against her, the ordinary presumption of concurrent sanctions is
not warranted. Ms. Peters’s suspension is to run from July 2, 2015, and not from
April 10, 2008.
6
Although Ms. Peters notes that she voluntarily refrained from practicing in
the District of Columbia during the pendency of her disciplinary case before the
Committee in the Southern District of New York, this fact does not—by itself—
help her. In re Goldberg, 460 A.2d 982, 985 (D.C. 1983) (looking to both
voluntary restraint and prompt notice to bar counsel of foreign discipline).
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IV. Fitness Requirement
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 De Maio, 893 A.2d at 589 (quoting In re Cater, 887 A.2d 1, 6
(D.C. 2005)). “[A]n attorney’s lack of remorse, failure to cooperate during the
disciplinary process, or other evidence of questionable conduct in the course of
disciplinary proceedings” may tip the balance toward imposition of a fitness
requirement. In re Guberman, 978 A.2d 200, 211 (D.C. 2009).
While the misconduct in this case warrants a three-year rather than a five-
year suspension, Ms. Peters’s pattern of denying culpability causes sufficiently
serious doubt about her continuing fitness to practice law as to warrant imposition
of a fitness requirement should Ms. Peters decide she wishes to resume practice in
the District of Columbia after the expiration of her suspension.
V. Conclusion
For the foregoing reasons, Kristan Peters is suspended from the practice of
law in the District of Columbia for three years from July 2, 2015, with
reinstatement conditioned upon proof of fitness to practice law. See D.C. Bar R.
15
XI, §§ 3 (a)(2), 11 (e), 14 (h), 16 (a).
So ordered.