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In re Carey11/26/2002
y
Count II alleges that Carey and Danis violated Rule 4-8.4 by using confidential information obtained while representing Chrysler to later prosecute the ABS class action claim against Chrysler. The Disciplinary Hearing Panel found that respondents did not violate Rule 4-8.4. We agree.
The Chief Disciplinary Counsel's contention is based in large part on the fact that respondents took over 800 pages of documents from Thompson & Mitchell when they left. The CDC argues that many of these documents were confidential and that Carey and Danis violated their duty of loyalty by using some of these documents as templates for the pleadings filed in the Beam case. The only specific document identified was a Chrysler petition used by Carey and Danis as a form for the Beam petition. The Chrysler petition had been filed and was thus a public record. It was not confidential.
W. David Wells, the head of litigation at Thompson & Mitchell when respondents left that firm, testified that he had reviewed the documents Carey and Danis had taken and did not find them to be confidential. Wells testified that most of the documents were either a matter of public record or were generic memos that could apply to a variety of clients. Wells further testified that he believed that it was not uncommon for lawyers to take copies of such documents when they leave one law firm for another.
Count II alleges specifically that respondents used confidential documents against Chrysler, and this must be proved specifically. Given the testimony of those involved, the preponderance of the evidence supports a finding that respondents did not take confidential documents from Thompson & Mitchell and use them against Chrysler. We hold that respondents Carey and Danis did not violate Rule 4-8.4.
C. Count III: False and Misleading Statements During Discovery
Count III alleges that both Carey and Danis, individually, submitted false discovery responses in Chrysler v. Carey & Danis in violation of Rules 4-3.3(a)(1), 4-3.4(a), 4-3.4(d), 4-8.4(c), and 4-8.4(d). Under these rules, a lawyer shall not knowingly make a false statement of material fact or law to a tribunal or offer evidence the lawyer knows to be false. Rule 4-3.3(a)(1), (4). "A lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully . . . conceal" any document or material having potential evidentiary value. Rule 4-3.4(a). A lawyer shall not "fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party." Rule 4-3.4(d). Finally, a lawyer shall not "engage in conduct involving dishonesty, fraud, deceit or misrepresentation" or "engage in conduct that is prejudicial to the administration of justice." Rule 4-8.4(c), (d).
Discovery is a vital aspect of the truth-seeking mechanism of the adjudicative process. State ex rel. Bar Ass'n v. Lloyd, 787 P.2d 855, 859 (Okla. 1990). Any conduct that misleads one's adversary in the latter's search for truth anterior to trial impedes and impairs the integrity of forensic fact-finding process. All pretrial discovery, whether carried out by voluntary or involuntary means, must be treated alike . . . . In the conduct of our adversary litigation process no stage affords a license for an advocate's use of misleading tactics to impede or thwart the foe's legitimate pursuits.Id.
Abuse of the discovery process and misrepresentation to the court "is an affront to the fundamental and indispensable principle that a lawyer must proceed with absolute candor towards the tribunal. In the absence of that candor, the legal system cannot properly function." Caranchini, 956 S.W.2d at 919-2
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