Argued: January 12, 2016
Barbera, C.J. Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.
This reciprocal discipline action arises from a disciplinary proceeding initiated in the State of New York against Respondent, Kristan Peters-Hamlin, who while serving as lead counsel for a plaintiff in a trade secrets infringement suit, instructed a first-year associate to "mark-up" deposition transcripts and claim them as attorney work product; knowingly made false statements to the court to conceal same; and made copies and ordered additional copies of deposition transcripts for use in another matter, in contravention of court confidentiality orders.
On August 5, 2015, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent based on her misconduct in New York. The Petition was brought as a reciprocal discipline matter pursuant to Maryland Rules 16-751 (petition for disciplinary or remedial action) and 16-773 (reciprocal discipline or inactive status). Attached to the Petition were certified copies of the Opinion and Order of the Committee on Grievances for the United States District Court, Southern District of New York ("Grievance Committee") dated April 10, 2013 and the Opinion of the United States Court of Appeals for the Second Circuit dated April 4, 2014.
By Order dated April 10, 2013, the Grievance Committee suspended Respondent from the practice of law in the United States District Court, Southern District of New York for seven years, nunc pro tunc to April 10, 2008. Respondent appealed the Grievance Committee's April 10, 2013 Order to the United States Court of Appeals for the Second Circuit. By Opinion and Order dated April 4, 2014, the Second Circuit affirmed the April 10 Order.
In issuing its sanction, the Grievance Committee adopted the findings of fact and conclusions of law of the Honorable Lisa Margaret Smith, United States Magistrate Judge for the Southern District of New York ("magistrate judge"), who presided over Respondent's evidentiary hearing. The magistrate judge found knowing and intentional misconduct in violation of the New York Rules of Professional Conduct ("NYRPC"), 3.3(a)(1); 3.4(c); and 8.4(c) and (d).
The filing of the Petition by Bar Counsel was precipitated by events occurring in the spring of 2007, in connection with Respondent's representation as lead counsel of the plaintiff in Wolters Kluwer Fin. Servs. Inc. v. Scivantage et al., Case No. 07 Civ. 2352 in the United States District Court, Southern District of New York, while she was a partner at Dorsey & Whitney, LLP ("Dorsey & Whitney"). The Petition alleges that Respondent's misconduct in New York constitutes violations of the following Maryland Lawyers' Rules of Professional Conduct ("MLRPC"): 3.3(a)(1) (Candor Toward the Tribunal), 3.4(c) (Fairness to Opposing Party and Counsel), and 8.4(a), (c), and (d) (Misconduct).
On August 6, 2015, we issued an order directing Bar Counsel and Respondent to show cause pursuant to the grounds outlined in Md. Rule 16-773(e),  why corresponding discipline should not be imposed by this Court. Following receipt of the parties' responses, on August 20, 2015, this Court ordered Respondent indefinitely suspended from the practice of law in this State, pending further order of this Court, pursuant to Md. Rule 16-773(d). This matter was not transmitted to a hearing judge to hold an evidentiary hearing and render findings of fact and conclusions of law. On January 12, 2016, we heard oral argument.
On January 29, 2016, Respondent filed with this Court, a "MOTION FOR LEAVE TO FILE STATEMENT CORRECTING MATERIAL MISSTATEMENTS MADE BY DISCIPLINARY COUNSEL DURING ORAL ARGUMENT ON JANUARY 12, 2016" ("Motion for Leave"), alleging that Bar Counsel made a variety of misrepresentations regarding the reciprocal actions taken in other courts and bars, as well as the magistrate judge's findings. Bar Counsel filed a response to Respondent's motion on February 4, 2016, stating that the misstatements and misrepresentations alleged by Respondent were addressed, or could have been addressed, in her rebuttal.
Bar Counsel further maintained that the substance of Respondent's motion was not a pleading attempting to correct the record, but rather, an attempt "to supplement her oral argument with additional facts and legal argument." On February 12, 2016, Respondent filed a reply ("Reply") in further support of her Motion for Leave, asserting that Bar Counsel's response to her motion failed to correct the misstatements and misrepresentations proffered during oral argument.
For the reasons that follow, we conclude that Respondent violated MLRPC 3.3(a)(1), 3.4(c), and 8.4(a), (c), and (d), and the appropriate sanction for Respondent's misconduct is disbarment.
The magistrate judge made the following findings of fact and conclusions of law, which we summarize:
Respondent has been an attorney since 1988. She was admitted to the Bar of the District of Columbia in 1988, the Bar of Maryland in 1998, the Bar of New York in 2000, and the Bar of Connecticut in 2007. She has been in inactive status in Maryland since July 2015. Respondent is also a former partner of the law firm Dorsey & Whitney and currently maintains a law office in Stamford, Connecticut.
In April 2007, Respondent was lead counsel for Dorsey & Whitney's client, Wolters Kluwer Financial Services, Inc. ("Wolters Kluwer"), in its suit filed in the United States District Court for the Southern District of New York, against four of its former employees ("New York action"). The complaint alleged that former Wolters Kluwer employees had taken proprietary information and disclosed it to their new employer, the technology company Scivantage. At the close of extensive discovery conducted under orders of confidentiality, Dorsey & Whitney voluntarily dismissed the suit and re-filed a substantially identical suit in the United States District Court for the District of Massachusetts ("Massachusetts action") after Scivantage contested personal jurisdiction in the Southern District of New York.
Dorsey & Whitney subsequently filed a motion in the Massachusetts action seeking injunctive relief and attached some of the discovery material produced by defendants in the New York action. Following a hearing on the voluntary dismissal and the use of the discovery material, inter alia, the presiding judge, the Honorable Harold Baer, Jr., ("Judge Baer"), issued an opinion imposing non-monetary sanctions on Dorsey & Whitney, Respondent, Marc Reiner ("Mr. Reiner"), a former partner at Dorsey & Whitney who worked on the matter, and Wolters Kluwer. On appeal, the United States Court of Appeals for the Second Circuit affirmed the imposition of non-monetary sanctions on Respondent as a result of her misconduct, but reversed the sanctions imposed on Dorsey & Whitney and Mr. Reiner.
The New York disciplinary matter commenced when Judge Baer forwarded a copy of his decision to the Grievance Committee. Thereafter on January 30, 2008, the Grievance Committee issued an "Order to Show Cause" alleging that Respondent violated NYRPC 3.3(a)(1), 3.4(c), 8.4(c) and (d),  based upon the following three charges of misconduct:
(1) [Respondent] 'instructed an associate in her firm to alter or amend documents for the purpose of preventing their discoverability and attempted to mislead the [c]ourt as to these events;' (2) [Respondent] 'participated in a conference with the [c]ourt to adjourn a [Temporary Restraining Order] [("TRO")] hearing and discuss future depositions at a time when [she] knew that those depositions and the TRO hearing would not take place;' and (3) [Respondent] 'copied transcripts and ordered additional copies of transcripts in intentional disregard of court orders, and then used the transcripts in an action in Massachusetts in violation of the [c]ourt's Confidentiality Order.'
On April 10, 2008, the Grievance Committee issued an interim suspension order.Over a year later on June 5, 2009, the Grievance Committee determined that Respondent should be disbarred, but allowed her to submit mitigation evidence. On August 6, 2009, the Grievance Committee reduced the sanction from disbarment to a seven-year suspension. Respondent appealed to the United States Court of Appeals for the Second Circuit. On April 25, 2011, the Second Circuit vacated the Grievance Committee's interim suspension order and remanded the matter for further proceedings, including an independent evidentiary hearing on the charges against Respondent.
A hearing was conducted before the magistrate judge in the Southern District of New York for eleven days during the months of June through August, 2012. The magistrate judge received hundreds of exhibits and heard testimony of several witnesses at Dorsey & Whitney, including Respondent. On January 23, 2013, the magistrate judge submitted a 118-page Report and Recommendation, concluding that Respondent violated NYRPC 3.3(a)(1), 3.4(c), and 8.4(c) and (d), and recommended the imposition of a five-year suspension, nunc pro tunc to April 10, 2008. The Grievance Committee adopted the magistrate judge's findings of fact and conclusions of law, but ultimately imposed a seven-year suspension, nunc pro tunc. In support of its sanction, the Grievance Committee concluded that Respondent's conduct was sui generis,  because her conduct involved "the corruption of a young and inexperienced lawyer, over whom she had power and authority, " she exhibited a lack of remorse for her inappropriate behavior, and she had a "habit of twisting the truth."
The magistrate judge made the following findings of fact relative to the charges, which we summarize in reverse order to remain consistent with the sequence of events:
On April 12, 2007, Judge Baer entered a "Confidentiality Stipulation and Protective Order " ("the Confidentiality Order"), which was sent via fax and e-mail to counsel for both parties in the Wolters Kluwer litigation. Of relevance to the allegations in the instant disciplinary matter, the Confidentiality Order outlined the following stipulations:
[I]nformation designated as 'CONFIDENTIAL INFORMATION' or 'ATTORNEYS' EYES ONLY INFORMATION' ("Protected Material"), could be 'used solely for purposes of the prosecution and defense of the above-entitled litigation. . . .'
Protected Material was not to be 'used in any other litigation proceeding. . . .'
'The obligations created by this Order shall survive the termination of this lawsuit unless otherwise modified' by the [c]ourt and that '[t]he [c]ourt, ' defined as 'the United States District Court, Southern District of New York, ' 'shall retain jurisdiction, even after termination of this lawsuit, to enforce this Order and to make such amendments and modifications to this Order as may be appropriate. . . .'
The "ATTORNEYS' EYES ONLY" designation meant that protected material could only be disclosed to attorneys at Dorsey & Whitney, defendants' firms, Akin Gump Strauss Hauer & Feld, LLP and Sullivan & Worcester, LLP, the court reporters and videographers who covered the depositions, and independent experts retained by the parties.
In addition to prior document production, the defendants produced three CD-ROMs with electronic discovery to Dorsey & Whitney on the evening of April 13, 2007, which was the same day the firm filed a voluntary dismissal of the New York action. Subsequently on April 15, 2007, after counsel for the defendants became aware of Dorsey & Whitney's transfer of the New York action and subsequent dismissal of same, they contacted Respondent and requested return of all their discovery documents and copies thereof. However, Respondent refused. On April 16, after Respondent was made aware by Mr. Reiner of a conference call with Judge Baer and defendants' counsel to resolve the matter, Respondent replied, "I am going to want a copy made of the discs no matter what this judge says . . . I will take the heat for that decision, but I am going to want a copy made no matter what[.]"
In efforts to address both the defendants' concern regarding Respondent's resistance to their demands and Respondent's concern of spoliation issues if she returned same to the defendants, Judge Baer issued an oral order directing return of all documents in Dorsey & Whitney's possession to the court within twenty-four hours. After Mr. Reiner informed Respondent of Judge Baer's order, Respondent stated, "[t]his is exactly what I thought would happen which is why I told you I want copies of the disc[s]."
Shortly thereafter, Respondent contacted Eve Morris, head of the secretarial staff at Dorsey & Whitney, to arrange to have copies made of all hard-copy documents and the CD-ROMs produced by the defendants. Respondent then used the copies in a motion for protective order submitted to Judge Baer seeking permission to send copies of the defendants' document production to the judge in the Massachusetts action.
On April 17, 2007, after Judge Baer became aware that Dorsey & Whitney made copies of the defendants' document production, he sent an e-mail to the firm ordering that all discovery in plaintiff's possession be delivered to defendants by noon the following day. Thereafter on April 19, 2007, Judge Baer issued an oral order to Zachary Carter ("Mr. Carter"), head of the New York Trial Group at Dorsey & Whitney, directing the firm to return all deposition transcripts taken during the course of the Wolters Kluwer litigation to the court.
The following day, in response to an e-mail from Deidre Sheridan ("Ms. Sheridan"), an associate at Dorsey & Whitney, suggesting that the firm "consider a middle g[r]ound" that would allow Judge Baer to hold the transcripts, but release them for use in their motions with the court, Respondent declined. The deposition transcripts were eventually delivered to the court, beyond Judge Baer's deadline.
On April 21, 2007, after confirming delivery of the deposition transcripts to the court, Respondent e-mailed in-house counsel at Wolters Kluwer, stating, inter alia, that "the next step" was "sending the transcripts to the new judge." (emphasis omitted). Shortly thereafter, Respondent e-mailed the court reporter from Veritext who covered the depositions for the defendants, to request copies of the discs with the deposition transcripts, claiming that she "misplaced" the four discs containing the deposition transcripts. Respondent did not disclose this request to Judge Baer or anyone at Dorsey & Whitney.
On or about April 23 or 24, 2007, Respondent was confronted by Jonathan Herman ("Mr. Herman"), a partner at Dorsey & Whitney assigned to oversee Respondent's work, regarding Respondent's knowledge that associates had not returned deposition transcripts to the court. A few days prior on April 20, associates Ms. Sheridan and Jordan Brackett ("Mr. Brackett") informed Mr. Carter that they each still possessed folders containing working copies of the transcripts that have been marked up and tabbed. Mr. Carter spoke to Respondent about the deposition transcripts on or about April 26 or 27, and Respondent spoke to Ms. Sheridan regarding Mr. Carter's decision to not return them on April 26.
After Respondent's discussion with Mr. Herman, she refused to return the deposition transcripts, claiming work product privilege. Respondent subsequently sent Judge Baer's law clerk an e-mail citing caselaw from associates in support of her use of the discovery from the New York action, in the Massachusetts case, contending that the latter was a "continuing matter." However, in correspondence to colleagues at Dorsey & Whitney, Respondent consistently referred to the Massachusetts action as a new case.
On April 24, 2007, Respondent assisted with drafting a motion titled, "Motion for Order to Show Cause and for Expedited Discovery and Preservation of Documents and Information to be filed in the District of Massachusetts[, ]" which included a supporting memorandum of law and a declaration by Respondent. The motion was submitted to the judge in the Massachusetts action. Attached to the motion were over one-hundred pages of ...