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In re Carey11/26/2002
ered the letter and "went and grabbed it for the purpose of cross-examination . . . ."
Judge Perry did not believe that failure to produce the document was out of mere inadvertence. After reviewing respondents' answers to Chrysler's interrogatories and requests for production along with the Grossman letter and the other allegedly responsive documents, Judge Perry struck respondents' answer. In discussing the appropriateness of her sanction, Judge Perry commented at length on respondents' conduct: I, as I told you, assumed that all lawyers were telling the truth, because I believe that's what our profession requires of us.
I was shocked to see all of this communication between Mr. Carey and Danis and these lawyers, but I figured they had an explanation . . . . [referring to the forty-two documents found by Chrysler and not produced by Respondents]
I know that lawyers are busy, but I don't know how a lawyer could forget a trip to New Jersey to talk about anti-lock brake litigation. Of course, it didn't have to be a trip to New Jersey . . . . It says I enjoyed a meeting with you last Sunday. Sunday afternoon meetings with attorneys in my experience are not something that people inadvertently forget.
I don't believe that I can let this case just sit in the normal remedy of let the jury see that . . . they were lying. The problem is this. It's deeper. These are lawyers, I don't know if this jury is going to come out of here thinking that's just how lawyers . . . . he defense in this case, although I have not allowed all of this to be presented to the jury, has somewhat been all lawyers cheat and lie, therefore what we did wasn't so bad. I'm not saying that's really the defense you have presented, but the implication has been there, and so I'm concerned . . . [that the jury] will think that's what we all do, and I have to tell you gentlemen, our profession is better than that. We don't all do that. We don't all do that.
This is the most egregious abuse I have seen in my court . . . .
What [the Grossman letter] tells me is that we're not following the normal rules of discovery . . . . he problem I have is [the Grossman letter] makes me think it's the tip of the iceberg; makes me think that disclosure in this case has not been done in accordance with the rules of civil procedure, and so I no longer have faith in the process . . . .
Why didn't your clients tell the truth about [the documents] when they were asked under oath? That's the problem Mr. Basso. You know, I've told you my opinion and I'm speaking very harshly, but I'm sorry, these are lawyers who lied, and that's not something I'm used to seeing. I assume every lawyer who stands in front of me is telling me the truth, and I can tell you that until this case, there is not a lawyer in this room or frankly very many in the Eastern District of Missouri who have not given me good reason to follow that assumption in every case. Most lawyers tell me the truth. Most lawyers do what they're supposed to do.
As a result of their answer being struck, a default judgment was entered against Carey & Danis in the amount of $850,000. The judgment was affirmed against Carey & Danis by the Eighth Circuit Court of Appeals in Chrysler Corp. v. Carey, 186 F.3d 1016 (8th Cir. 1999).
II. Discussion
A. Count I: Conflict of Interest
Count I alleges professional misconduct by violating Rule 4-1.9(a), which governs conflict of interest with former clients. Rule 4-1.9(a) states: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in wh
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