In re Peters, 543 F.Supp.2d 326, (S.D.N.Y. 2008)
Brief Summary
Attorney was suspended because, contrary to the terms of a protective order, she retained and used confidential materials from a case in one jurisdiction to support the filing of a new case in another jurisdiction.
Complete Summary
Attorney Kristan Peters (Peters) was sanctioned by the District Court, Southern District of New York, for her actions as plaintiff’s counsel in a trade secret infringement suit. Because that matter involved trade secrets, the court had ordered that discovered materials remain confidential and not be used in any other litigation, even after termination of the lawsuit. Peters simultaneously dismissed the New York action and brought a similar action in Massachusetts. That same day, and before the defendant had learned of either of these steps, the defendant delivered over 100,000 pages of documents pursuant to Peters’ emergency discovery requests. Despite the New York court’s order to return the documents, Peters failed to do so. Instead, she instructed an associate to write on several transcripts in order to render them work product and thus non-returnable.
The district court judge thought it appropriate to refer the matter to the Committee on Grievances for the Southern District of New York. The Committee directed Peters to show cause why she should not be temporarily suspended from practice. Peters asserted that her order to the associate was intended as a joke. The Committee found this argument unpersuasive based on the associate’s testimony. Peters further argued that her failure to return the documents was in good faith because she had not yet determined whether the Massachusetts litigation was “other litigation” as contemplated in the New York confidentiality order. The Committee dismissed this argument, noting that the confidentiality order “provided a mechanism for seeking guidance from the court on its scope” and that Peters’ “own client did not agree with her ….” Id. at 334.
The Committee agreed with the district court judge’s assessment that:
Ms. Peters used the transcripts [in the subsequently filed Massachusetts action] in a bad-faith effort for the improper purpose of gaining advantage (and expedient relief) in a new court after she had “judge-shopped,” and after she had gained extensive discovery without providing any discovery of her own, and in an effort to have that Court eviscerate the Confidentiality Order that this Court had entered to govern discovery produced in this litigation (which remained in force after this litigation).
The Committee temporarily suspended Peters because of the “danger of recurrence [of disciplinary violations] as demonstrated by [Peters’] lack of appreciation of the wrongfulness of her misconduct.” Id. at 333. The Committee noted that Peters had violated at least three New York disciplinary rules: DR 1-102(a)(5) (prohibiting conduct prejudicial to the administration of justice); DR 1-102(a)(4) (prohibiting dishonesty, fraud, deceit or misrepresentation); and DR 7-106(A) (prohibiting lawyers from disregarding rulings by tribunals in the course of proceedings). The Committee declined to stay her suspension pending her appeal to the Second Circuit.
Significance of Opinion
This opinion demonstrates once again that even the most zealous of litigators must act within the bounds of the law. If the facts are as found in this proceeding, Ms. Peters also seems likely to face action by state disciplinary authorities.
This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
Save the Date!!! for the 8th Annual Legal Malpractice & Risk Management Conference
March 4-6, 2009
The Westin Chicago River North Hotel
320 North Dearborn
Chicago, Illinois
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Earn up to 13.75 hours of CLE credit including up to 5.50 ethics credit!
Conference Topics
Legal Malpractice Sessions (March 4-5)
• Guess Where You Are Being Sued – Bankruptcy Court
• Developments Concerning the Litigation Attorney – Jurisdiction, Ethics Rules and Admission of Fault
• Expert Witnesses – Selecting the Expert and Structuring the Interview
• Insurance Law – Prior Knowledge and Additional Negligence Claims
• Statutory Causes of Action – Consumer Protection Statutes
• Developments in Disciplinary Defense
• Stump the Panel
Legal Malpractice/Risk Management Cross-Over Sessions (March 5)
• Patent Law – Jurisdiction and Loss Measurement
• The Insurance Marketplace and Considerations
• Reducing Loss – Self-Help, Mitigation and Protection
Risk Management Sessions (March 5-6)
• The General Counsel Forum
• Plaintiff’s Perspective — Red Flags and Criteria Used in Selecting Cases
• Risk Management and Electronic Advertising — Websites and E-mail
• Grab and Leave Cases — How to Protect the Firm When People Leave
• On Horizon — Subprime, MJP and Alternative Billing
Registration Fees
$1,300 for the Entire Conference — March 4-6
$925 for the Legal Malpractice Sessions Only — March 4-5
$925 for the Risk Management Sessions Only — March 5-6
Discounts (only one discount per person)
Returning registrants receive 5% off the conference price
Multiple registrants receive 15% off when another colleague from the same company registers (one full paid registrant required)
Early birds receive 10% until December 1, 2008
For more information, please visit www.LMRM.com or click here to Register Online Now!
To speak with the Conference Planner, Katherine McCormack, please call 312-704-3329. |