January 12, 2016
E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar
Counsel, Attorney Grievance Commission of Maryland), for
L. Peters-Hamlin (Westport, CT) for Respondent.
Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts,
Hotten, JJ. Opinion by Hotten, J.. Barbera, C.J., Adkins and
McDonald, JJ., dissent.
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.
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.
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.
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)
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).
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
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.
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.
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
magistrate judge made the following findings of fact and
conclusions of law, which we summarize:
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.
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.
& 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.
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.'
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
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."
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:
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
[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. . . .'
" 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.
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
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
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.
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.
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
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 &
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.
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.
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 excerpts from
the deposition transcripts in the New York action, which were
designated " ATTORNEYS' EYES ONLY."
the motion requested, inter alia, an order requiring
Judge Baer to return the deposition transcripts in his
custody to Wolters Kluwer, or to allow Wolters Kluwer "
to request duplicate transcripts from the [c]ourt reporter
for use in the Massachusetts action[,]" the memorandum
of law did not reflect that Respondent previously requested
duplicate transcripts from the court reporter on April 21.
One (" The Brackett Charge" )
on April 24, 2007, Judge Baer's law clerk sent an e-mail
to Respondent, copying defendants' counsel, and forwarded
same to other members at Dorsey & Whitney involved in the
Wolters Kluwer litigation. The law clerk requested a
representation as to whether either firm was in current
possession, or possession since April 20, any copies, in any
format, of any deposition transcripts taken in the matter.
The parties were directed to return any remaining deposition
transcripts to the court by April 25, 11:00 a.m.
receipt of the e-mail, Mr. Brackett uncovered the folder in
his office containing deposition transcripts with markings
and flags, as well as several clean deposition transcripts,
which should have been returned on April 20. Mr. Brackett
apprised Respondent by phone immediately thereafter, to which
she replied that she was discussing the matter with another
partner. Mr. Brackett left the folder containing the
deposition transcripts in his office for Respondent to
retrieve, but returned to his office the next day to discover
that Respondent had not collected it. Mr. Brackett had the
deposition transcripts sent to Respondent by messenger that
Respondent received clarification from Judge Baer's law
clerk that the parties were not required " to go through
its pleadings files and remove all exhibits from its
pleadings[,]" in response to the law clerk's
request, she did not inform the law clerk that Dorsey &
Whitney had already used the deposition transcripts in its
filings in Massachusetts. Ultimately, none of the deposition
transcripts in the firm's possession were returned to the
court by the 11:00 a.m. deadline. On April 26, following a
discussion between Mr. Herman and Mr. Brackett regarding his
deposition transcripts, Respondent asked Mr. Brackett to
accompany her to the office, where the deposition transcripts
proceeded to review the deposition transcripts, Respondent
stated to Mr. Brackett, " I'll leave the office for
a few minutes, you should scribble all over them so that
they'll be deemed work product and we won't have to
return them." Respondent then left her office for
approximately two to three minutes and Mr. Brackett proceeded
to make small markings on the first page of each of the
remaining clean deposition transcripts. Later that day, Mr.
Brackett informed Mr. Herman of what transpired in
confronted by partners at Dorsey & Whitney of the Brackett
allegation, she did not deny her statement, but stated that
she was " joking" and made the statement in a
mocking and sarcastic fashion. Both Respondent and her former
secretary, Eileen Brennan, provided conflicting versions of
the events. Apart from Respondent's directive to Mr.
Brackett, both versions exculpated Respondent of ...