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In re Carey11/26/2002
nd is appropriate only when the breach of discipline "does not involve dishonest, fraudulent, or deceitful conduct on the part of the attorney." In re Littleton, 719 S.W.2d 772, 777 (Mo. banc 1986). See also In re Disney, 922 S.W.2d 12, 16 (Mo. banc 1996); In re Stricker, 808 S.W.2d 356, 361 (Mo. banc 1991). Disbarrment should be reserved for those cases in which it is clear that the attorney should not be at the Bar. In re Littleton, 719 S.W.2d at 777. See also In re Caranchini, 956 S.W.2d at 919; In re Disney, 922 S.W.2d at 15. This Court has "imposed the ultimate sanction of disbarrment where a lawyer's conduct involved dishonesty and misrepresentation." In re Cupples, 979 S.W.2d, at 936.
John Carey and Joseph Danis violated the trust of their former client when they prosecuted a Chrysler ABS class action lawsuit that was substantially related to their prior representation. In the subsequent action brought against them by Chrysler, respondents knowingly and intentionally withheld certain documents and information from discovery hoping to prevent any possible inference that they were involved in, and intended to share fees from, Chrysler ABS class action lawsuits. A total of forty-two documents were uncovered, including the Grossman letter written by Joseph Danis and the Sheridan memo written by John Carey. Further, respondents failed to identify meetings with other lawyers in New York and St. Louis regarding Beam and other Chrysler class action lawsuits. "This misconduct 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." In re Caranchini, 956 S.W.2d at 919-20.
We must also consider any aggravating or mitigating factors. In re Cupples, 979 S.W.2d at 937. Several mitigating factors apply to respondents Carey and Danis. The Chief Disciplinary Counsel did not argue for disbarrment. In his closing argument before the Disciplinary Hearing Panel, counsel for the Informant conceded that "there are way too many factors in mitigation of their conduct . . . that mitigate the imposition . . . such a harsh sanction." The Informant also conceded that it is not "likely Joe [Danis] or John [Carey] is going to go out and do anything like they did here ever again. I don't think the public is going to be in a position to face this type of misconduct in the future."
Neither Carey nor Danis has been subject to disciplinary action or Bar complaints before or since the events that led them here. A number of attorneys, including attorneys from Thompson & Mitchell, testified to respondents' reputation for honesty and ethical conduct. Mr. Danis is actively engaged in two charities: Boys Hope and Kingdom House. Mr. Carey provides pro bono services to a number of programs, including Kingdom House and the National Association of Consumer Advocates. Finally, respondents have satisfied an $850,000 judgment as the result of the default judgment resulting from their conduct in Chrysler v. Carey & Danis. While this is a private judgment and not part of the disciplinary process, it is of such a substantial amount to constitute a vivid reminder of the cost of inappropriate professional behavior. Between disbarrment and reprimand lies the sanction of suspension. Suspension is an appropriate intermediate sanction where reprimand is insufficient to protect the public and maintain the integrity of the profession, and where this Court does not believe that the acts of a respondent are such that he should not be at Bar. Suspension serves the dual purposes of discipline; it protects the public and maintains the integrity of the profession by deterring other member
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