The Wrong Kind Of Mentoring
A five-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department for an attorney’s misconduct in litigation.
The findings came from a federal court suspension of seven years.
Specifically, respondent was suspended for instructing an associate in her law firm to alter deposition transcripts with work product for the purpose of preventing their discoverability and misleading the court as to the matter; copying the transcripts in intentional disregard of the court’s orders; and using the transcripts in a federal action in Massachusetts in violation of the court’s confidentiality order.
Respondent’s misconduct arose out of a federal lawsuit commenced in 2007 by the law firm of Dorsey & Whitnesy on behalf of Wolstyers Kluwer Financial Services, Inc. (Wolsters). Respondent, then a partner at Dorsey & Whitney, was lead counsel in the matter. Wolsters alleged that three of its former employees had taken certain proprietary information and divulged it to their new employer. The district court granted a temporary restraining order and ordered expedited discovery. The parties exchanged discovery documents, and the individual defendants were deposed. While discovery was ongoing, the district court entered a Confidentiality Order providing in part that certain material — including all discovery material at issue here — “shall not be used in any other litigation proceeding,” and that the district court’s jurisdiction to enforce those restrictions would survive the lawsuit.
The defendants moved to dismiss on the ground, inter alia, that the district court lacked personal jurisdiction over the defendants, all of them located in Massachusetts. The Dorsey attorneys then began to consider voluntary dismissal in New York and re-filing in the District of Massachusetts. Wolsters gave respondent permission to dismiss the suit. During a subsequent conference call with the court and opposing counsel, however, respondent did not mention the pending dismissal. Either during or shortly after the conference call, respondent (the partner in charge) instructed the junior partner on the case to file the dismissal; the junior partner sent notice of the dismissal by regular mail — though not electronically.
Despite the dismissal, respondent refused to return the discovery material produced by the defendants, including three CDs (containing 153,000 pages of documents) that were produced after the dismissal had been quietly effected. Despite repeated orders by the district court to return all discovery material, including copies of deposition transcripts, the return of discovery material was not completed until two weeks after the suit was dismissed. In the meantime, respondent filed a motion for temporary injunctive relief in the District of Massachusetts, appending 115 pages of material produced in New York that were subject to the Confidentiality Order.
The defendants moved for sanctions, and the district court scheduled an evidentiary hearing. The parties subsequently settled, and the defendants withdrew the sanctions motion; but the court, having its own concerns regarding the lawyers’ conduct, proceeded with the hearing. After a five-day evidentiary hearing, during which respondent, represented by counsel, testified, on November 30, 2007, the district court imposed a total of 27 non-monetary sanctions..
The federal district court sanctions were affirmed by the Second Circuit
“[Respondent’s] most serious failing involves the corruption of a young and inexperienced lawyer, over whom she had power and authority, and whom she ordered to commit conduct that could have ended with his own disciplinary hearing….[Respondent] exhibits no remorse for her inappropriate conduct; rather, she arrogantly persists in trying to salvage her reputation at the expense of the unfortunate [associate] – branding him and others at the Dorsey firm as liars when it is she who has consistently lied, both about what she did and about why she did it.”
“Equally problematic is Respondent’s habit of twisting the truth. At the hearing, [respondent] continually tried to shift blame to virtually every other person who came within arm’s length of the Wolters Kluwer case….Respondent’s flagrant mischaracterization of the record, and her meritless objections to [the Magistrate’s] carefully crafted and amply supported findings, indicate that she has yet to accept any responsibility for what the Committee views as serious professional wrongdoing.”
The incident took place in 2008. The attorney has not practiced law since 2010. (Mike Frisch)