Legal Malpractice

Attorney Discipline, Suspension and Legal Malpractice

By (Andrew Lavoott Bluestone)

One can read attorney discipline cases in the law journal every day.  Often they involve miscommunication with clients, neglect of cases and missing money.  This case is a standout, and must be read.  To begin, the players are all world class:  almost all the judges of the SDNY, a huge roster of local attorney players, the son of the US Attorney General, and big law firms.

Dorsey & Whitney and its attorney Kristan L. Peters were involved in litigation.  In Above the Law, we see:   "A Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.
Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."

Now the discipline has moved one step further: "This matter comes before the Committee on Grievances for the Southern District of New York (the "Committee") to consider the imposition of discipline against respondent Kristan Peters based upon the proceedings (collectively, the "Wolters Kluwer proceedings") before the Hon. Harold Baer, United States District Judge, Southern District of New York, described in Judge Baer's opinions in Wolters Kluwer Financial Services, Inc. v. Scivantage, 2007 WL 1098714 (S.D.N.Y. Apr. 12, 2007)("Wolters Kluwer I"); Wolters Kluwer Financial Services, Inc. v. Scivantage, 2007 WL 1498114 (S.D.N.Y. May 23, 2007)("Wolters Kluwer II"); and Wolters Kluwer Financial Services, Inc. v. Scivantage, 525 F. Supp. 2d 448 (S.D.N.Y. 2007)("Wolters Kluwer III"). Full familiarity with these opinions is here assumed.

The decision goes on to say: "It was against this background that Ms. Peters gave the direction to a young associate that constitutes one of the charges against her. The lawyer in question, Jordan Brackett, was a first year associate at Dorsey working on the matter with Ms. Peters. When Mr. Brackett learned of the Court's April 24th email, he "immediately reviewed the transcripts in his office and realized that several of the transcripts he previously thought were 'work product' were in fact unmarked" and therefore should be delivered to the Court. 525 F. Supp. 2d at 518. He "called Ms. Peters and told her that he still had transcripts, some of which were unmarked." Id. Mr. Brackett had his copies of these transcripts delivered to Ms. Peters' office on April 25th. 525 F. Supp. 2d at 520.

The next day, on April 26th, Ms. Peters and Dorsey partner Jonathan Herman "discussed the issue of returning transcripts to the Court, and that some of [the] transcripts may have been work product." Id. at 521. Mr. Herman, and others at Dorsey, directed Ms. Peters to comply with the Court's order by delivering all of the transcripts to the Court. Id.; see also id. n.275. Ms. Peters challenged this direction. Mr. Herman told Ms. Peters to contact Dorsey's ethics specialist Bill Wernz or Dorsey's chief administrative partner Tom Tinkham. Ms. Peters did contact Tinkham and he told Herman that he gave Ms. Peters the same advice, i.e., to return the transcripts to the court. Id. n.275; see also, Tr. 9/12/2007 at 346:11-17, 347:15-18.

Ms. Peters then asked Mr. Brackett to return to her office so they could review the transcripts he had had delivered to her. 525 F. Supp. 2d at 521. Mr. Brackett testified that at this meeting Ms. Peters told him to mark up transcripts so that they would be work product and therefore could be withheld from the Court. According to Brackett:

I first showed [Ms. Peters] the transcripts that had some type of marking and which I thought were likely attorney work product. I then showed her the other transcripts and flipped through them to demonstrate that they had no markings. Ms. Peters then instructed me to write on the unmarked transcripts so that they would be considered attorney work product, and so that we would not have to return them to the Court. To the best of my recollection, Ms. Peters said something to the effect of 'scribble all over them.' Ms. Peters then told me that she would leave her office so that I could write all over the transcripts without her being present. To the best of my recollection, she said that she would leave for a few minutes either to powder her nose or to get something to drink. Ms. Peters then left the office. I was shocked by Ms. Peters' statement, but I understood that Ms. Peters was instructing me to do what she said and that she was not joking. "

Full post as published by New York Attorney Malpractice Blog on April 18, 2008 (boomark / email).