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In re Griffith12/9/2003
the life tables. At no time did the respondent reveal to defense counsel, the judge, or his own expert the information concerning Pina's HIV condition.
The following day, prior to the opening statements of counsel, at a lobby conference, the judge discussed the preliminary instructions he intended to give the jury. On the issue of damages, the judge informed counsel that he would instruct the jury that "damages may include compensating [Pina for] the value of his life to himself, his lost earnings based on the probable duration of his life and any physical and emotional pain and suffering endured by . . . Pina prior to his death." Again, the respondent did not disclose that Pina had been HIV positive since May, 1988.
On February 12, 1996, Gonsalves disclosed, during her cross-examination, that Dr. Chowdri had treated Pina for hepatitis. One of the defense attorneys knew, apparently for reasons unrelated to this trial, that, for some time, Dr. Chowdri was the only doctor in New Bedford who treated persons who tested positive for HIV and persons with AIDS. Consequently, defense counsel served Dr. Chowdri with a subpoena and learned, on February 13, 1996, for the first time, that Pina had tested positive for HIV. From copies of correspondence between Dr. Chowdri and the respondent's office, defense counsel also learned that the respondent had known of Pina's HIV condition since June, 1991. On February 13, the respondent had Gonsalves obtain an unredacted set of Pina's medical records from St. Luke's Hospital.
The judge convened a lobby conference at which the admission of the records from St. Luke's Hospital was discussed. The respondent produced the redacted records, telling the judge that he had received them from one of the defense counsel. After the judge asked if there was a dispute over the records' "completeness," the respondent disclosed that the records had been redacted to delete reference to Pina's HIV condition. The respondent did not immediately disclose to the judge the date he had first learned of Pina's HIV condition, but, on direct questioning, he revealed that he knew of Pina's condition prior to responding to discovery. The judge refused to allow the respondent to introduce the unredacted records, but permitted defense counsel to introduce the records and to cross-examine Gonsalves on the issue of Pina's HIV status. The judge also refused to permit the respondent to use the life tables. The judge reserved judgment on additional sanctions until after the trial's completion.
Following trial, defense counsel filed a joint motion for sanctions against the respondent and Gonsalves, alleging that they had deliberately withheld information concerning Pina's HIV status during discovery and trial. After a hearing, the judge entered an order in which he found that the respondent had "engaged in a pattern of activity to hide [Pina's HIV status] from the defendants and initially . . . from the court," and had engaged in deliberate misconduct in connection with Gonsalves's responses to the defendants' interrogatories. The judge ordered that his opinion finding misconduct be published, and that the respondent pay a sanction of $15,000, which the respondent paid. The judge declined to refer the matter to the board.
2. Bar counsel filed with the board a petition for discipline against the respondent.
The matter was referred to a hearing committee of the board. After a hearing, the hearing committee determined that the respondent had violated S.J.C. Rule 3:07, Canon 1, DR 1-102 (A) (4) (5), and (6), as appearing in 382 Mass. 769 (1981), by assisting Gonsalves in preparing answers to the Joyce interrogatories that he knew were either false, mis
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