Matter of Griffith, SJC-09013 (Mass. 12/9/2003)

• Decision Date: 09 December 2003
• Docket Number: SJC-09013
• Citation: 440 Mass. 500
• Parties: IN THE MATTER OF ROBERT A. GRIFFITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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IN THE MATTER OF ROBERT A. GRIFFITH.

SJC-09013

Supreme Judicial Court of Massachusetts.

December 9, 2003.

October 9, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Attorney at Law, Canons of ethics, Deceit, Disciplinary proceeding, Suspension.

Information filed in the Supreme Judicial Court for the county of Suffolk on March 7, 2003.

The case was reported by Greaney, J.

Robert I. Warner, Assistant Bar Counsel.

Thomas R. Kiley (Richard A. Gargiulo with him) for the respondent.

GREANEY, J.

This bar discipline case requires us to decide the appropriate sanction to impose on the respondent, who, from 1991 until 1996, in the course of representing the estate of Morris Pina, Jr. (Pina), in a lawsuit against the city of New Bedford (and others) for police misconduct, failed to make certain important disclosures during discovery and trial concerning Pina's medical records and treatment.¹ The Board of Bar Overseers (board) adopted the recommendation of the hearing committee that the respondent receive a public reprimand. Dissatisfied with the board's sanction, bar counsel filed, pursuant to § 3.57 of the Rules of the Board of Bar Overseers (2003), a demand for filing of information. Bar counsel seeks a two-year suspension on the grounds that: (1) the nondisclosure, or concealment, was intentional, and (2) no mitigating factors exist to warrant the less severe sanction of a public reprimand. The board in turn filed an information with the county court pursuant to S.J.C. Rule 4:01, § 8 (4), as appearing in 425 Mass. 1309 (1997). A single justice reserved and reported the case without decision. We conclude that a one-year suspension is the appropriate sanction to impose.

1. We summarize the findings of fact made by the hearing committee and adopted by the board. The respondent was admitted to the Massachusetts bar in December, 1978. Pina died on June 16, 1990, after being arrested by New Bedford police officers and while in police custody. In early 1991, Delores Gonsalves, Pina's sister, hired the respondent to investigate Pina's death, and, if appropriate, to commence a lawsuit against those responsible for the death.

The respondent was drawn to the case, in part, because of the Cape Verdean heritage he shared with Pina and his perceptions, having grown up in New Bedford, of antagonistic behavior exhibited by New Bedford police officers toward Cape Verdeans. On July 29, 1991, the respondent filed a complaint in the United States District Court for the District of Massachusetts on behalf of Gonsalves, the administratrix of Pina's estate, against the city of New Bedford and other defendants including the mayor, police commanders, patrolmen, and detention attendants. The complaint alleged various Federal and State civil rights violations. The complaint subsequently was amended to add counts for damages arising from Pina's alleged wrongful death, and further amended to add a survival action and a count alleging an intentional cover-up by the defendants.

Trial began on December 7, 1995, and continued for seventy-two days over a three-month period. The jury returned a verdict in favor of Gonsalves and awarded damages of $435,000. Judgment in that amount subsequently entered. Following trial, the parties entered into a settlement agreement vacating the judgments against the city and the mayor, and requiring the city to pay Pina's estate $555,000.

Before commencing litigation, the respondent learned from bills sent to Pina's mother that Pina had been treated by Dr. Hanumara Chowdri of New Bedford. The respondent sent a request for Dr. Chowdri's treatment records of Pina. On July 2, 1991, the respondent received a response from Dr. Chowdri, which included a record disclosing that Pina had been a patient of Dr. Chowdri at St. Luke's Hospital in New Bedford in May, 1988, and that during that admission Pina had tested positive for human immunodeficiency virus (HIV).

In December, 1991, one of the defense lawyers, Austin Joyce, served interrogatories on Gonsalves (Joyce interrogatories). Interrogatory no. 4 asked Gonsalves to identify "any hospital or institution" to which Pina had been admitted prior to his arrest and to identify "the periods of time and dates during which" Pina was in the hospital or institution. Interrogatory no. 5 asked Gonsalves to "[s]tate the names and addresses of all persons or institutions having custody and control of any of [Pina's] medical records."

On January 8, 1992, Gonsalves answered the interrogatories with the respondent's assistance under the pains and penalties of perjury. The respondent did not object to the interrogatories on any ground, including privilege. Gonsalves's answer to interrogatory no. 4 stated that she had "no knowledge as to whether or not [Pina] was admitted to any hospital or institution for examination or treatment before this alleged incident,"² and her response to interrogatory no. 5 was "See answer to interrogatory no. 4." These answers were false; Gonsalves knew that Dr. Chowdri had treated Pina and that Pina had been a patient at St. Luke's Hospital in May, 1988.³ Further supplementation of the Joyce interrogatories did not change the answer that failed to identify Dr. Chowdri or St. Luke's Hospital.

On January 22, 1992, John Folan, another defense attorney, served a request for documents on Gonsalves, including a request to produce all "medical records, hospital records, charts, and correspondence with any doctor or hospital rendering treatment on behalf of [Pina] for a period of five years prior to" Pina's death. On February 6, 1992, the respondent, without objection, agreed to produce all responsive documents "if and when available." The respondent, however, never produced the records he had received the previous July identifying either Dr. Chowdri or St. Luke's Hospital.

On May 26, 1992, in response to a subpoena duces tecum, Folan received medical records from St. Luke's Hospital, which, at that time was the only hospital in New Bedford. The records contained an extensive medical history for Pina, but they did not contain any information concerning Pina's HIV status or Dr. Chowdri's treatment of him. The cover sheet accompanying the records noted that portions of the medical record were "further protected" and had been redacted. The defense counsel who saw the redaction notice did not inquire further as to the redacted matters.⁴ The respondent was aware that the records received by Folan (and then supplied to all counsel of record) did not contain any information concerning Pina's HIV status or Dr. Chowdri's treatment of Pina.

In response to a pretrial motion in limine to exclude evidence of hedonic damages (damages to compensate for loss of enjoyment of life), the respondent attached a report from an expert economist he retained to testify on damages arising from Pina's alleged wrongful death. The respondent had not told this expert that Pina was HIV positive. The respondent maintained that the expert should be permitted to testify at trial about the "statistical realities of life and health expectancies for an average African-American male of [Pina's] age." The expert had calculated Pina's lost net income at $357,473, and his "total loss of pleasure of life" at $2,069,893.

The United States District Court judge assigned to the case heard argument on the motion in limine on December 6, 1995. The respondent proposed to call his expert economist and to rely on life tables showing average life expectancy. Defense counsel objected to the use of life tables on the ground that they were misleading when applied to an intravenous drug user such as Pina. The judge allowed the respondent to offer proof of hedonic damages, but precluded him from calling his expert, and reserved judgment on the use of 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...