13‐1916‐cv
Kristan L. Peters v. Committee on Grievances
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2013
No. 13‐1916‐cv
KRISTAN L. PETERS,
Appellant,
v.
COMMITTEE ON GRIEVANCES FOR THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK,
Appellee.
________
Appeal from the United States District Court
for the Southern District of New York.
M‐2‐238 (CM) ― Colleen McMahon, Judge, for the Committee on
Grievances.
________
ARGUED: FEBRUARY 19, 2014
DECIDED: APRIL 4, 2014
________
Before: CABRANES, SACK and WESLEY, Circuit Judges.
________
Kristan Peters, an attorney admitted to the bars of New York
and Connecticut, appeals from the April 10, 2013 Order of the
Committee on Grievances for the United States District Court for the
2 No. 13‐1916cv
Southern District of New York (the “Committee”) suspending her
from practicing law in the Southern District of New York for seven
years, based on a conclusion that she violated various provisions of
the New York Code of Professional Responsibility (“Professional
Code”), 22 NYCRR §§ 1200.1 et seq., while a partner at the law firm
of Dorsey & Whitney. Peters challenges both the finding that she
violated the Professional Code, and the reasonableness of the seven‐
year suspension.
Upon review of the record, we find no error in the
Committee’s conclusion that Peters violated the Professional Code.
We hold further that the Committee acted well within its informed
discretion in ordering a seven‐year suspension, notwithstanding the
lack of directly analogous precedent, based on its conclusion that
Peters’s conduct was sui generis.
Accordingly, we AFFIRM the judgment of the Committee
suspending Peters from practice in the Southern District of New
York for a period of seven years.
________
ELKAN ABRAMOWITZ (Catherine M. Foti, Daniel F.
Wachtell, on the brief), Morvillo Abramowitz
Grand Iason & Anello, P.C., New York, NY, for
Appellant Kristan L. Peters,
QIAN A. GAO (David B. Tulchin, Esterina Giuliani,
on the brief), New York, NY, for Appellee Committee
on Grievances.
________
3 No. 13‐1916cv
PER CURIAM:
Kristan Peters, an attorney admitted to the bars of New York
and Connecticut, appeals from the April 10, 2013 Order of the
Committee on Grievances for the United States District Court for the
Southern District of New York (the “Committee”)1 suspending her
from practice in the Southern District of New York (“SDNY”) for
seven years, based on a conclusion that she violated various
provisions of the New York Code of Professional Responsibility
(“Professional Code”), 22 NYCRR §§ 1200.1 et seq., while a partner at
the law firm of Dorsey & Whitney. Peters challenges both the
finding that she violated the Professional Code, and the
reasonableness of the seven‐year suspension.
This case comes to us on appeal for the second time, after we
vacated the Committee’s first order suspending Peters for a term of
seven years, and remanded with instructions to, inter alia, conduct
an independent evidentiary hearing on the charges. On review of
the new record, we find no error in the Committee’s conclusion that
Peters violated the Professional Code. We hold further that the
Committee acted well within its informed discretion in ordering a
seven‐year suspension, notwithstanding the lack of directly
1 At the time of the April 10, 2013 Order, the Committee members were District
Judge P. Kevin Castel (Chairman), Chief Judge Loretta A. Preska, District Judges Vincent
L. Briccetti, Katherine B. Forrest, Paul A. Gardephe, John F. Keenan, Colleen McMahon,
Louis L. Stanton, Richard J. Sullivan, and Magistrate Judge Frank Maas. Judge McMahon
served as Chairman Pro Tempore on this matter, and Judge Briccetti took no part in its
consideration.
4 No. 13‐1916cv
analogous precedent, based on its conclusion that Peters’s conduct
was sui generis.
Accordingly, we AFFIRM the judgment of the Committee
suspending Peters from practice in the Southern District of New
York for a period of seven years.
BACKGROUND
A. Charges Against Peters
The facts underlying the challenged suspension have been
repeated in several opinions, over hundreds of pages, and need not
be re‐stated here.2 Briefly, the charges against Peters arose out of her
conduct as a partner at the law firm of Dorsey & Whitney, in the
course of litigation in SDNY before Judge Harold Baer, Jr. (the
“Wolters‐Kluwer litigation”).
Peters was charged principally with (1) instructing a first‐year
associate, Jordan Brackett, to “mark up” deposition transcripts on
the theory that the markings would bring the transcripts under the
protection of the attorney work‐product privilege, thereby
exempting them from Judge Baer’s order that all discovery be
returned to the District Court, and attempting to mislead the Court
as to those events (the “Brackett Allegation,” or “Charge One”); and
(2) “cop[ying] transcripts and order[ing] additional . . . transcripts in
intentional disregard of court orders,” and “us[ing] the transcripts in
a[ ] [related] action in Massachusetts,” in knowing violation of a
2 For detailed background, see, e.g., January 23, 2013 Report and
Recommendation, Special Appendix (“SPA”) 26‐143; In re Peters, 543 F. Supp. 2d 326,
331–34 (S.D.N.Y. 2008) (interim suspension order).
5 No. 13‐1916cv
confidentiality order (the “Confidentiality Order”) entered by Judge
Baer (the “Confidentiality Order Allegation,” or “Charge Three”).3
See January 30, 2008 Order to Show Cause, Special Appendix
(“SPA”) 1‐2.
B. Procedural History
We outline the extensive procedural history of this case only
insofar as it is relevant to Peters’s claims on appeal.
In 2007, after conducting a sanctions hearing regarding
Peters’s conduct during the Wolters‐Kluwer litigation, Judge Baer
imposed non‐monetary sanctions on Peters for violating the
Professional Code, and referred the case to the Committee for
further disciplinary proceedings.
In 2009, the Committee issued a final ruling4 that Peters had
violated at least three disciplinary rules in connection with the
charges (outlined above) against her: (1) Disciplinary Rule (“DR”) 1‐
102(A)(5), prohibiting a lawyer from engaging in “conduct that is
prejudicial to the administration of justice”; (2) DR 1‐102(A)(4),
The allegations that formed the basis for the original “Charge Two” against
3
Peters were not at issue on remand.
4 The Committee first ordered Peters to show cause why she should not be
disciplined. On review of Peters’s submissions and the record before Judge Baer, the
Committee concluded that “Judge Baer’s findings are strongly supported by the record,”
and suspended Peters temporarily from practicing in SDNY, but deferred final
adjudication pending resolution of the appeal from Judge Baer’s sanctions order. In re
Peters, 543 F. Supp. 2d 326, 329‐35 (S.D.N.Y. 2008). In an April 21, 2009 Order and
Opinion, this Court affirmed Judge Baer’s sanctions order against Peters, but vacated the
sanctions against Dorsey & Whitney and a junior partner, Marc Reiner. See Wolters
Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 119 (2d Cir. 2009). The Committee then
proceeded with its final adjudication of the charges against Peters.
6 No. 13‐1916cv
prohibiting a lawyer from engaging in “conduct involving
dishonesty, fraud, deceit, or misrepresentation”; and (3) DR 7‐
106(A), prohibiting a lawyer from “disregard[ing] or advis[ing] [a]
client to disregard . . . a ruling . . . made in the course of a
proceeding.”5 22 N.Y.C.R.R. §§ 1200.33, 1200.37. As a penalty, the
Committee initially ordered disbarment, but, on reconsideration,
imposed a seven‐year suspension.
On appeal from the Committee’s 2009 decision suspending
Peters for seven years, we applied a “more exacting [standard] than
. . . the ordinary abuse‐of‐discretion standard,” in light of the fact
that the Committee had based its conclusions on the findings of
Judge Baer, who had, in the nature of things, acted as “accuser, fact
finder and sentencing judge all in one.” In re Peters, 642 F.3d 381, 384
& n.4 (2d Cir. 2011) (internal quotation marks omitted).
Applying that standard, we vacated the findings regarding
the Brackett Allegation on the basis that Peters was entitled to, and
had not received, an independent evidentiary hearing. Id. at 390. We
also vacated the charge based on the Confidentiality Order
Allegation, holding that although Peters violated the Confidentiality
Order, the Committee had made insufficient findings as to whether
Peters had the requisite culpable state of mind. In vacating that
charge, we emphasized that the Committee was “free [on remand]
to make a new determination, based on detailed factual findings, of
5 Effective April 1, 2009, the New York Rules of Professional Conduct replaced
the New York Code of Professional Responsibility. Former DR 1‐102(A)(5) is now RPC
8.4(d); former DR 1‐102(A)(4) is now RPC 8.4(c); and former DR 7‐106(A) is now RPC
3.4(c). The rules are substantively unchanged. See SPA 83‐85.
7 No. 13‐1916cv
whether Peters acted with a culpable state of mind . . . and, if so, to
discipline her accordingly.”6 Id. at 397‐98.
On remand, Judge Colleen McMahon, acting as Chairman Pro
Tempore of the Committee, ultimately referred the matter to
Magistrate Judge Lisa M. Smith, who took submissions and heard
eleven full days of testimony.7 Judge Smith then issued a 118‐page
Report and Recommendation (“R&R”) concluding that Peters’s
conduct during the Wolters‐Kluwer litigation violated the
Professional Code, and recommending a five‐year suspension.8
We expressly did “not . . . suggest that [either of] the charges against Peters
6
were improperly brought,” and left open the possibility that the Committee might again
impose a suspension or disbar Peters as long as it explained the rationale for the sanction
imposed. Peters, 642 F.3d at 398.
During the hearing, the Committee was represented by the same counsel as on
7
appeal. Peters had different counsel before the Committee.
8 On this second appeal, Peters claims that the charges against her were
inappropriately expanded on remand. See Appellant’s Br. 51. This claim is without merit,
for substantially the reasons stated in the R&R, see SPA 31 n.4, 137‐38, and the April 10,
2013 Order, see SPA 152. In short, the charges that formed the basis for the Committee’s
suspension were within the scope of the original charges against Peters, which were not
narrowed on remand. See Note 5, ante. Moreover, Peters had ample notice of the charges
against her, and on which she was sanctioned. Finally, to the extent that the Committee
viewed the evidence against Peters more harshly after the independent hearing before
Judge Smith, that was a risk Peters assumed in seeking further process, and there is no
evidence that the Committee’s second decision was a result of vindictiveness. See North
Carolina v. Pearce, 395 U.S. 711, 720, (1969) (“[A] corollary of the power to retry a
defendant is the power, upon the defendant’s reconviction, to impose whatever sentence
may be legally authorized, whether or not it is greater than the sentence imposed after
the first conviction,” as long as the higher sentence is not a result of “vindictiveness
against a defendant for having successfully attacked his first conviction . . . .”), overruled
on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). Notably, the Committee’s final
decision here did not impose a harsher “sentence” than that imposed originally.
8 No. 13‐1916cv
In an April 10, 2013 Order, the Committee adopted the finding
that Peters had violated the Professional Code, but concluded that
“this case is sui generis―and deserving of [a seven‐year
suspension].” SPA 155. Peters moved for reconsideration, and relief
from judgment, both of which the Committee denied.
It is against this backdrop that we review Peters’s appeal.
DISCUSSION
On appeal, Peters claims principally that: (1) she was denied a
full and fair disciplinary hearing in the proceedings before Judge
Smith and the Committee, resulting in the erroneous conclusion that
she violated the relevant disciplinary rules; and (2) the Committee
“abused its discretion” in imposing a seven‐year suspension, which
was outside the range of discipline imposed in comparable cases,
and improperly considered aggravating factors of which Peters
lacked notice. We address the “liability” claim and the “sentencing”
claim in turn.
A. The Conclusion that Peters Violated the Professional Code
In general, we review “[t]he decision whether to impose
disciplinary sanctions on an attorney [under] an abuse‐of‐discretion
standard.”9 Grievance Comm. for S. Dist. of N.Y. v. Simels, 48 F.3d 640,
9 One exception to this deferential standard is where a party appeals “the
Committee’s interpretation of a particular disciplinary rule,” in which case our review is
“plenary,” or de novo. Simels, 48 F.3d at 645. Another is where we are reviewing a decision
in which the judge is necessarily the “accuser, fact finder and sentencing judge,” as was
the case in Peters’s first appeal. Peters, 642 F.3d at 384 & n.4. Neither of these exceptions
applies here.
9 No. 13‐1916cv
645 (2d Cir. 1995); Peters, 642 F.3d at 384. A court “abuse[s] its
discretion” when it “base[s] its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence, or
render[s] a decision that cannot be located within the range of
permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir.
2008) (citations and internal quotation marks omitted).
1. The Brackett Allegation (Charge One)
The challenges Peters raises with regard to the finding of guilt
on the Brackett Allegation relate almost exclusively to Judge Smith’s
credibility determinations and the assessment of conflicting
evidence. As set forth above, Judge Smith conducted an extensive
evidentiary hearing, approximately five‐and‐one‐half days of which
were devoted to Peters’s testimony. Judge Smith also considered
testimony from Brackett, and numerous other lawyers and staff
members from Dorsey & Whitney, in reaching her conclusions.
The Committee then reviewed the R&R’s “extensive, record‐
based findings,” along with Peters’s specific objections. SPA 146‐47.
During the review process, transcripts of the hearing and the parties’
exhibits were also available to the Committee. In adopting the R&R,
the Committee properly accorded substantial deference to Judge
Smith’s credibility determinations, Anderson v. City of Bessemer City,
470 U.S. 564, 574‐75 (1985), and found them to be “supported by
substantial evidence.” SPA 148. The Committee also independently
concluded that Peters lacked credibility. See SPA 149 (noting that
Peters’s “effort to minimize her role in the lawsuit and the unfolding
10 No. 13‐1916cv
events seriously wounded her credibility in the eyes of Judge Smith
and of the Committee”).
Our review of the record reveals no error, much less clear
error, in Judge Smith’s findings, which the Committee adopted after
its own review of the record. Accordingly, we conclude that Peters’s
arguments with respect to the Brackett Allegation are without merit.
2. The Confidentiality Order Allegation (Charge Three)
The only open question regarding the Confidentiality Order
Allegation is whether Peters acted with the requisite “culpable state
of mind,” defined as “venal intent.” Peters, 642 F.3d at 394‐95. That
portentous term, at least in the context of the Professional Code,
merely means “scienter, deceit, intent to mislead, or knowing failure
to correct misrepresentations.” Matter of Altomerianos, 160 A.D.2d 96,
101 (1st Dep’t 1990) (internal quotation marks omitted); see also id.
(invoking term “venal intent” for the first time and noting: “That
venal intent is a necessary element to DR 1–102(A)(4) we think is
compelled by the definition of fraud given in the . . . Code as ‘not
includ[ing] conduct . . . which lacks an element of scienter, deceit,
intent to mislead, [etc.] . . . .’”).
As evidence of Peters’s culpable state of mind, the Committee
cited, among other things, “e‐mails that demonstrated her
familiarity with the terms of the Confidentiality Order,” and
evidence that other partners told Peters that the Confidentiality
Order did not permit her to use materials in a related litigation in
11 No. 13‐1916cv
Massachusetts.10 SPA 149. The Committee found Peters’s
“deliberate[] [choice] to obtain additional copies of the transcripts
after being ordered to surrender them . . . by lying to the court
reporter,” and her “far‐fetched and wholly implausible explanation
for her conduct,” was “strong evidence of her culpable state of
mind.” SPA 151.
The Committee’s findings are sufficient to establish the
requisite culpable intent, and nothing in our review of the record
suggests that they were clearly erroneous or that the Committee
“abused its discretion” in sustaining Charge Three.
B. The Seven‐Year Suspension
Our review of the sanction imposed in a disciplinary
proceeding is analogous to our review of a sentence imposed in an
ordinary criminal action. Where, as here, there has been “a very
great deal of process,” SPA 162, and no procedural error, our
“abuse‐of‐discretion” review is akin to a review for “substantive
unreasonableness.” United States v. Rigas, 583 F.3d 108, 114, 121‐22
(2d Cir. 2009). As we have explained, such review “provide[s] a
backstop for those few cases that, although procedurally correct,
would nonetheless damage the administration of justice because the
sentence imposed was shockingly high,” results in “manifest
10 In remanding, we noted that if the Committee found Peters to be merely
negligent in disobeying the Order, it “might not warrant severe, or any, disciplinary
measures,” whereas if the Committee found that Peters’s “failure to familiarize herself
with the [O]rder was in bad faith,” such a finding might warrant discipline. Peters, 642
F.3d at 396.
12 No. 13‐1916cv
injustice,” or is “otherwise unsupportable as a matter of law.” Id. at
123.
In determining the appropriate sanction, Judge Smith
considered mitigating and aggravating factors, the prejudice caused
by Peters’s actions, and the relevant authorities, as directed by this
Court. See Peters, 642 F.3d at 398. Judge Smith recognized Peters’s
clean disciplinary record and favorable character testimony, but
noted her apparent, and continuing, lack of remorse. She also
considered: (1) Peters’s refusal to acknowledge the wrongful nature
of her conduct; (2) the “pattern of providing testimony that placed
blame for any and all wrongdoing on all of the other attorneys,”
SPA 127; (3) “instances in which Peters was untruthful” at the
hearing, SPA 132; (4) the fact that Peters came “dangerously close to
engaging in bad faith obstruction of the disciplinary proceeding,”
SPA 137; and (5) Peters’s substantial legal experience, SPA 139.11
Notwithstanding the “seriousness of [the] misconduct,” Judge Smith
recommended a five‐year suspension due to her inability to find an
analogous case resulting in a longer suspension. SPA 141.
The Committee took Judge Smith’s recommendation “quite
seriously,” SPA 154, but concluded that a seven‐year suspension
was warranted under the circumstances. SPA 155. The Committee
found Peters’s “most serious failing”—which it deemed
“particularly heinous”—to be her “corruption of a young and
Peters’s argument that she lacked notice of the aggravating factors that Judge
11
Smith would consider is without merit. As the Committee noted, Judge Smith made clear
that she would consider the factors set forth in the ABA Center for Professional
Responsibility Standards, and did just that. See SPA 158.
13 No. 13‐1916cv
inexperienced lawyer, over whom she had power and authority.”
SPA 154. Additional aggravating factors noted by the Committee
were Peters’s attempts to “salvage her reputation at the expense of . .
. Mr. Brackett”; her “habit of twisting the truth”; her “flagrant
mischaracterization of the record”; and the fact that, in the
Committee’s view, Peters had “yet to accept any responsibility for
. . . serious professional wrongdoing.” SPA 154‐55. Accordingly, the
Committee concluded that the case was sui generis and deserving of
a longer punishment.
Our direction that the Committee should consider relevant
precedent was intended to inform, not confine, the Committee’s
exercise of its discretion in determining the appropriate sanction for
a violation of the Professional Code. Every such violation is, in some
sense, sui generis; that is, it requires a fact‐particular inquiry and is
not amenable to a rigid calculus based on other cases. It is for that
reason that we have a Committee on Grievances that may draw
upon the cumulative authority of a panel of experienced judges. In
view of the Committee’s conclusions regarding the nature of Peters’s
conduct, we cannot say that its imposition of a seven‐year
suspension was “substantively unreasonable,” shocking to the
judicial conscience, or otherwise unsupportable.
14 No. 13‐1916cv
CONCLUSION
To summarize:
(1) The Committee did not make clearly erroneous
factual findings regarding the Brackett Allegation
(Charge One), and properly sustained that charge
against Peters.
(2) The Committee made sufficient findings to support
the conclusion that Peters acted with “venal intent,”
as that term is understood in the law of professional
responsibility, in disobeying the Confidentiality
Order (Charge Three), and properly sustained that
charge against Peters.
(3) Upon consideration of aggravating and mitigating
factors and relevant precedent, the Committee
reasonably exercised its informed discretion by
imposing a seven‐year suspension, notwithstanding
the absence of directly analogous case law imposing
a comparable sanction.
For the reasons set forth above, we AFFIRM the judgment of
the Committee suspending Peters from practice in the Southern
District of New York for a period of seven years.12
The seven‐year suspension dates from April 10, 2008, the date on which Peters
12
was suspended pendente lite.