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In re Carey11/26/2002
that failed, by saying "we didn't mean to do it." Respondents have refused to take responsibility for the misleading discovery responses to Chrysler and to the court. When asked about his responses to Chrysler's discovery, Danis replied, "the discovery requests were served upon my attorney," "my attorney received a request for production," and "Mr. Wuestling prepared a response." Both Carey and Danis contend that "any factual inaccuracy was the result of conduct by" respondents, but was the fault of their attorneys. At the disciplinary hearing, when Chrysler could not produce a signed copy of Danis' interrogatory responses, Danis went so far as to deny ever having executing his interrogatory answers. He denied executing his responses even though he testified earlier, in his deposition, that "I actually recall this being sent for my execution" and that he reviewed the responses for their authenticity and genuineness.
Respondents are attorneys with a background in litigation. Each was responsible for vast amounts of contentious discovery while defending Chrysler in products liability class actions suits and later when representing plaintiffs. The federal court found, and the evidence supports, that by denying the existence of the documents and information requested in Interrogatory No. 2 and Requests for Production Nos. 8, 12, and 25, respondents purposefully withheld evidence from opposing counsel in violation of Rule 4-3.4 (a) and Rule 4-3.4(d), and made misstatements of material fact to the court in violation of Rule 4-3.3(a)(1), Rule 4-8.4(c) and Rule 4-8.4(d).
III. Discipline
The purpose of discipline is not to punish the attorney, but to protect the public and maintain the integrity of the legal profession. Those twin purposes may be achieved both directly, by removing a person from the practice of law, and indirectly, by imposing a sanction which serves to deter other members of the Bar from engaging in similar conduct. In re Littleton, 719 S.W.2d 772, 777 (Mo. banc 1986) (citations omitted).
" his Court is authorized to administer four types of discipline:
reprimand; indefinite suspension; suspension for a fixed period; and disbarrment." In re Caranchini, 956 S.W.2d 910, 919 (Mo. banc 1997). With respect to the form of discipline, we have said:
In cases of false statements, fraud, or misrepresentation, this Court issues reprimands only if the lawyer is merely negligent in determining whether statements or documents are false, or fails to take remedial action when material information is withheld, thereby causing injury or potential injury to a party, or causing an adverse or potentially adverse effect on the legal proceeding.
Suspension is appropriate when the lawyer knows that false statements are being submitted to the court, or that material information is improperly being withheld, and takes no remedial action, thus causing injury or potential injury to a party, or an adverse or potentially adverse effect on the legal proceeding.
Disbarrment is appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, thus causing serious or potentially serious injury to a party, or a significant or potentially significant adverse effect on the legal proceeding. In re Storment, 873 S.W.2d 227, 231 (Mo. banc 1994). See also Caranchini, 956 S.W.2d at 919; In re Oberhellmann, 873 S.W.2d 851, 856 (Mo. banc 1994); ABA Standards Rule 6.11. "In determining the proper sanction, this Court must also consider aggravating and mitigating circumstances." In re Cupples, 979 S.W.2d 932, 938 (Mo. banc 1998).
Reprima
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