Disbarment For Litigation Misconduct By Former Dorsey & Whitney Partner

A matter that has previously generated a great amount of  interest and (as noted by the dissent) a number of disparate sanctions has led to reciprocal disbarment in Maryland

Court of Appeals disbarred an attorney who, while serving as lead counsel for a plaintiff in a trade secrets infringement suit in New York, instructed a first-year associate to “mark-up” deposition transcripts and claim them as attorney work product; knowingly made false statements to mislead the court as to these events; and made copies and ordered additional copies of deposition transcripts for use in another matter, in contravention of court confidentiality orders.

The sanction was based on a seven-year suspension by the United States District Court for the Southern District of New York.

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).

The court recounted the findings from extensive hearings before a Magistrate Judge

In rendering her conclusions, the magistrate judge relied upon her extensive recordbased findings, which were largely based upon the credibility of the witnesses, including Respondent, who testified during the eleven-day hearing. In sum, the magistrate found overwhelming evidence to support her conclusion that (1) in connection with Charge One, Respondent did, in fact, instruct Mr. Brackett, a first-year associate at Dorsey & Whitney, to place handwritten “marks” on deposition transcripts to claim attorney work-product privilege against court orders, and then attempted to mislead the court as to these events; (2) in connection with Charge Three, Respondent copied deposition transcripts and ordered additional copies of same, and then used them in the Massachusetts action, in defiance of court orders; and (3) Respondent’s “repeated attempts to circumvent the proper legal process establish[ed] that she acted with a culpable state of mind” while engaging in the misconduct for which she has been charged.

In this proceeding

Before this Court, in conformance with the conduct evidenced in the magistrate judge’s findings, Respondent continued to deflect, minimize her actions, and shift blame onto others at Dorsey & Whitney. Respondent merely restated the evidence previously considered by the magistrate judge and challenged the credibility determinations, which were entitled to substantial deference…In some instances, Respondent also mischaracterized Maryland caselaw to bolster her position. 

The court was clearly troubled by the failure to acknowledge misconduct.

We must adhere to the primary function of disciplinary matters, which is to protect the public and maintain the integrity of the legal profession. These objectives would be best served by disbarment. Respondent has repeatedly expressed her future plan to relocate to Maryland. She currently maintains property in Maryland, and asserts that she has refused case referrals in this State in light of the pendency of the instant disciplinary matter.  Taking guidance from Vanderlinde and its progeny, and in light of this Court’s discretion in reciprocal discipline cases to impose a different sanction than that imposed in a sister jurisdiction if exceptional circumstances exist, we hold that disbarment, rather than a term of suspension, is the appropriate sanction for Respondent’s misconduct. Accordingly, we order Respondent disbarred.

Judge McDonald would not disbar

The Respondent in this case has practiced law as a litigator for the federal government and in private practice for almost 30 years. She apparently has not been the subject of any other complaints of misconduct or sanctions except for the incident that resulted in this case. That incident occurred during a discovery dispute in a hotly contested commercial case in the United States District Court for the Southern District of New York nearly a decade ago. According to the Respondent, that complaint was made by the judge assigned to that case after she complained, to the chief judge of the court, about derogatory remarks made to her by the assigned judge. Of course, this is a reciprocal disciplinary action and it is not our role to retry the case. And we would not want to. The evidentiary hearing in this case in the Southern District of New York took 11 days and resulted in a detailed 118-page report by the Magistrate Judge who presided at that hearing. Ultimately, the United States District Court for the Southern District of New York imposed a suspension, which triggered reciprocal disciplinary proceedings in numerous other jurisdictions. Not only does our Court reach a different result, but it is a result out of step with every other jurisdiction, including the jurisdiction in which the complaint was made and those in which hearings were conducted:

• In January 2013, the Magistrate Judge who heard all of the evidence and issued the lengthy report recommended a nunc pro tunc suspension of five years that would have concluded less than three months after she issued her report.

• In April 2013, the United States District Court for the Southern District of New York, where the conduct occurred, imposed a nunc pro tunc suspension of seven years, which has since expired. The United States District Court for the Eastern District of New York later imposed a concurrent suspension which has also expired. In April 2015, the United States District Court for the District of Connecticut imposed what was essentially a concurrent nunc pro tunc suspension that effectively suspended Respondent for a week.

• The United States Court of Appeals for the District of Columbia imposed a nunc pro tunc suspension that expired before it was imposed and conditioned reinstatement on a showing that Respondent had been reinstated in the Southern District of New York.

• The United States Court of Appeals for the Second Circuit, although it declined to reverse the Southern District’s disciplinary action when Respondent appealed, took no disciplinary action of its own.

• The State Bar of New York imposed reciprocal discipline in the form of a five year nunc pro tunc suspension, which expired the month after it was imposed.

• In Connecticut, where Respondent has her practice, the court declined to impose any discipline. After conducting its own three-day hearing, the Connecticut court concluded that “even a retroactive suspension would serve no useful purpose.” The court did require Respondent to report any future allegations of misconduct.

The Majority opinion is well written, but it necessarily only skims the surface of the detailed facts that make up this case. In my view, disbarment is not appropriate. I would impose discipline more in line with that recommended or imposed by the courts that received the complaint and that conducted hearings concerning the circumstances of the violations. The discipline need not be the same, however.

There is a rationale for imposing some additional discipline unique to Maryland. Although Respondent has not been practicing in Maryland, she was delinquent in reporting to Maryland authorities the suspension imposed by the Southern District of New York. But that additional discipline should not be disbarment.

Chief Judge Barbera and Judge Adkins joined the dissent.

The order in the underlying litigation is linked here. 

The oral argument is linked here. (Mike Frisch)