In Re Carey

It is a fair characterization of the lawyer’s responsibility in our society that he stands “as a shield,” to quote Devlin, J., in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries been compen-diously described as “moral character.” Schware v. Bd. Of Bar Exam’rs, 353 U.S. 232, 247, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring).

The Chief Disciplinary Counsel (CDC) filed a three count information against attorneys John J. Carey and Joseph P. Dan-is based upon their alleged professional misconduct in prosecuting product liability class action suits against a former client, the Chrysler Corporation, and in making misrepresentations in discovery in the subsequent lawsuit for breach of fiduciary duty brought by Chrysler against them. We find that both John Carey and Joseph Danis engaged in professional misconduct by representing another person in a substantially related matter adverse to the interest of a former client in violation of Rule 4-1.9(a) 1 , Rule 4-8.4(a) 2 , and by making false discovery responses in violation of Rule 4-3.3(a)(l) 3 , Rule 4-8.4(c) 4 , Rule 4-8.4(d) 5 , Rule 4-3.4(a) 6 and Rule 4-3.4(d) 7 . John J. Carey and Joseph P. Dan-is are indefinitely suspended from the practice of law, with leave to apply for reinstatement not sooner than one year from the date of this opinion.

I. Factual Background

In a disciplinary proceeding, the Disciplinary Hearing Panel’s “findings, conclusions, and recommendations are advisory in nature. This Court reviews the evidence de novo, determines independently the credibility, weight, and value of the testimony of the witnesses, and draws its own conclusions of law.” In re Oberhell-mann, 873 S.W.2d 851, 852 (Mo. banc *483 1994). In attorney disciplinary proceed-, ings, the truth of the allegations must be established by a preponderance of the evidence. In re Howard, 912 S.W.2d 61, 63 (Mo. banc 1995). “The purpose of attorney discipline is to protect the public and maintain the integrity of the legal profession.” In re Caranchini, 956 S.W.2d 910, 918-919 (Mo. banc 1997). We find the following facts:

A. Representation of Chrysler by John Carey and Joseph Danis

John Carey joined Thompson & Mitchell in 1987, after being admitted to practice law in Missouri. While at Thompson & Mitchell, Carey worked under Charles Newman as part of a “team” of partners and associates that defended Chrysler against product liability and consumer class action cases brought against it nationwide. From January 1992 through December 1995, Carey billed 1,314.6 hours to Chrysler. As part of the Chrysler team, Carey was privy to all aspects of the Chrysler representation and directly participated in nearly all aspects of the Chrysler litigation. In addition, Carey assessed Chrysler’s potential liability in pending litigation and helped draft a “blueprint” for Chrysler to follow in defending class action product defect suits pending concurrently with a National Highway Traffic Safety Administration (“NHTSA”) investigation.

Joseph Danis was licensed to practice law in Missouri in 1993 and began work as an associate for Thompson & Mitchell that year. Carey acted as Danis’ mentor while Danis was a summer associate and again when Danis was a new associate. Danis joined Carey as a member of Charles Newman’s Chrysler team. As a new associate, Danis’ involvement with the Chrysler class action litigation was less extensive than Carey’s. However, as a member of the team, Danis was privy to all aspects of the Chrysler representation. Danis billed 513.5 hours to Chrysler from January 1992 through December 1995.

Newman would circulate information on the widest possible basis to every member of the Thompson & Mitchell team involved in representation of Chrysler. Carey was the primary associate on four different Chrysler class action cases. 8 Charles Newman testified:

John [Carey] was totally immersed in that case [Osley ], along with me, and played the same role that I played in many respects. And that obviously involved ... determining the legal issues that the case presented. It also involved analyzing the jurisdiction ....

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He was also involved with me and others in massing the facts relevant to the claims that were asserted, and that involved contacting and principally working with the personnel in the office of the general counsel at Chrysler Corporation.

Newman further testified that in the other three cases, Carey had “a similar role with a few additional aspects.”

Danis was not involved in Osley, but did participate in the other three cases. Danis was involved in the lower level associate functions, but worked extensively with both Newman and Carey. Danis worked principally on drafting discovery responses and obtaining information from Chrysler to respond to discovery requests.

The component parts involved in the class action lawsuits Carey and Danis defended while with Thompson & Mitchell were Renault heater coils and Chrysler minivan door latches. Charles Newman *484 and other Chrysler attorneys, William McLelland and Lewis Goldfarb, each stressed, however, that the actual defective component was not materially important in this type of class action lawsuit. Goldfarb testified:

The products at issue in class actions are almost irrelevant to how we go about defending class actions. There’s almost an identity of process in terms of how we defend class actions, regardless of the nature of the component involved.

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Product-related class action[s], particularly those that follow on the heels of a government investigation, are virtually identical in the way the company handles them. The nature of the component involved is almost irrelevant to these cases because they never go to trial. We’re always dealing with the government, that investigation relates to the ongoing class action case. And the class action strategy is almost independent in some respects of the nature of the component involved.

These three Chrysler attorneys also testified that respondents Carey and Danis were privy to a wealth of information that would be useful to them in prosecuting a product-related class action against Chrysler. Newman testified that Carey and Danis learned Chrysler’s strategy in defending minivan product liability class action suits:

Respondents [were] present during meetings with in-house Chrysler counsel when there was a discussion of the strengths and weaknesses of various Chrysler employees ... [and] with non-lawyer Chrysler employees; for example, expert witnesses.

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We would talk with the client about other pending litigation alleging a similar product or defect .... So we would talk to the attorneys at Chrysler about their defense of those cases, what factual defenses were being developed and implemented, what expert witnesses, if any, they were working with there. The legal strategies in those cases, the legal defenses in those cases. Determine their applicability, determine their usefulness, determine whether they could be implemented in the class action ....

Newman also said that Carey and Danis knew that Chrysler was very hesitant to interplead or sue a critical supplier because of the way its supply lines were managed.

[I]f somebody was thinking of suing Chrysler and knew ... that Chrysler had a predisposition against bringing in third parties, you would know in contemplating a suit against Chrysler that it would be relatively efficient in that Chrysler wouldn’t bring in everybody else in the world that might be involved or had a bearing with that particular component or product and that you could tailor your claims accordingly to focus just on Chrysler and not have to worry about suppliers and the like.

Newman testified that, although the component parts differed, there were many similarities in available defenses, such as statute of limitations, improper certification of the class, improper class representatives, and improper assertion of claims. Finally, Newman indicated that many expert witnesses overlap: economists, automotive repair experts and human factor engineers. 9 Newman testified that “[t]he Respondents ... learn[ed] which experts Chrysler chose to use and *485 not use.” He stressed that Carey and Danis helped formulate Chrysler’s defense strategy in class action product liability cases involving Chrysler minivans.

William McClelland confirmed that Carey and Danis were “made aware about the types of information Chrysler kept, the sources of information within Chrysler relevant to the defense of a product liability class action lawsuit involving the minivan.” McClelland testified that respondents’ specific knowledge of the minivan would be extraordinarily helpful.

[T]he minivan was incredibly important to Chrysler. It still is today. I’m not sure the public fully understands its importance to our profitability. They know Chrysler makes solid minivans, but not I think the importance that we attach to it internally.

We were just coming out with a brand-new minivan at the time. We had put over a billion dollars investment into that minivan and were very concerned from a marketing and public relations perspective.

One of the strategies of the plaintiffs’ bar would be to muddy our name. We noticed during that time Ford was coming out with ads touting its safety record.

Carey’s and Danis’ first-hand knowledge of the minivan’s importance would allow them to “know what hot buttons to push.”

Lewis Goldfarb also discussed respondents’ work for Chrysler. Goldfarb testified that Carey and Danis had access to “detailed, internal information and analysis done by the in-house legal department, as well as [Chrysler] engineers and other personnel, regarding the status of a confidential government investigation .... ” He emphasized that Carey and Danis had a “road map as to how we [Chrysler] look at and analyze alleged defects concerning our products.”

The “road map” Goldfarb spoke of referred to a “matrix” or “blueprint” that the Chrysler team — including John Carey and Joseph Danis — developed to formulate Chrysler’s defense to class action product liability cases involving Chrysler minivans. The team prepared a matrix of all considerations that Chrysler should consider in deciding whether or not to settle the minivan latch cases. This matrix fisted relevant criteria and matched those criteria with a factual scenario. For each scenario, the team gave thoughts about the applicability of the criteria and its impact on the company. The matrix also included a form of a decision tree. The decision tree visually described the different scenarios and their implication on important areas of the company like marketing, public and consumer relations, dealer relations, and the recall itself.

This information was very important to Chrysler. Charles Newman summed up Chrysler’s position on the matrix in saying:

[T]his is highly confidential information and it was shared with us by our client in confidence. We had a discussion, extensive discussions with the client that resulted in the creation of this document, this matrix or template. And to have a plaintiffs lawyer know, for instance, of the very considerations themselves what Chrysler’s thought process deemed important and deemed material and how I in representing them analyzed each of those aspects would be very sensitive, confidential information that neither the company nor I would want to share with anyone.

B. Carey & Danis, L.L.C. — The Chrysler ABS Class Action

In January 1995, Carey and Danis left Thompson & Mitchell and formed their *486 own firm, Carey & Danis, L.L.C. 10 Carey & Danis shared office space with the firm of David Danis — Joseph Danis’ father— Danis, Cooper, Cavanagh & Hartweger, L.L.C. The two firms shared staff, a bookkeeper, a fax machine, and unlocked (but separate) fifing cabinets.

In August 1995, a Thompson & Mitchell secretary referred her brother-in-law, Dennis Beam, to Carey & Danis after he experienced problems with the anti-lock brake system on his Chrysler minivan. Carey discussed the potential case with Beam. Carey, obviously aware that he and Danis had represented Chrysler, researched Rule 1.9 of the Model Rules of Professional Conduct for an hour or two to determine if a conflict existed. Carey testified that he “made the determination that since Joey [Danis] and I had no knowledge or information at all concerning anti-lock brakes ... that those were not substantially related under my review of the case law and reading those rules.” Carey determined there was not a conflict. However, Carey & Danis did not file suit because Thompson & Mitchell had been referring business to them and they did not want to embarrass their former firm by fifing suit against a former client.

Carey & Danis arranged for the Danis, Cooper firm to represent Beam and a class of plaintiffs against Chrysler. Danis, Cooper was to get help on the case from another St. Louis law firm, Blumenfeld, Kaplan & Sandweiss. Carey and Danis met with attorneys from Danis, Cooper and the Blumenfeld firm to discuss the Beam, class action suit over lunch at a restaurant. According to Evan Buxner, who was working for Blumenfeld at the time, the “purpose of the meeting was to discuss generally if Blumenfeld, Kaplan & Sandweiss participated in the litigation what our role was and what we might expect representing a plaintiff in a proposed class in a plaintiffs’ class action case.” Carey & Danis was the only firm with any significant class action litigation experience among the three firms. The firms discussed a number of topics relating to the class action against Chrysler: attorney time and cost, the fact that NHTSA was conducting an investigation into the brake system, that a proposed class action could ride the government coattails and let the government agency do most of the work, the effect of a recall on a potential class action, the necessity (or lack thereof) of hiring experts, and that they could expect a barrage of motions from Chrysler.

Shortly after their involvement began, Blumenfeld was informed that Carey & Danis’ involvement in Beam was being investigated for conflict of interest. Blu-menfeld then withdrew from the Beam litigation. Carey explained:

Once they withdrew David [Danis] and Richard [Cooper] approached Joey [Danis] and I and asked us if we would be interested in getting involved in the case, we knew that there was no conflict of interest, and they needed help because ... there was a motion to transfer that was pending in St. Louis City. They needed help. There wasn’t time to try and go out and find another co-counsel.

Carey & Danis entered their appearance on behalf of the Beam plaintiffs. However, neither Carey nor Danis sought or received Chrysler’s consent to act as plaintiffs’ counsel against Chrysler.

In December 1995, Joseph and David Danis met in New York with Stanley Grossman, an attorney who had a similar *487 ABS class action suit against Chrysler in New Jersey. At the meeting they discussed joining — and later did join — the two class actions as well as a third group of plaintiffs from Mississippi represented by John Deakle. Following the meeting, Joseph Danis wrote Grossman to confirm the discussion regarding the ABS cases. Danis also inquired as to allocation of attorneys’ fees if the cases were consolidated, saying there was “plenty of money for all .... Consequently, we will all be better served working together against Chrysler ....” This correspondence has been termed “the Grossman letter.”

While Danis and his father were in New York meeting with Grossman, Carey received a letter from Charles Newman accusing Carey & Danis of having a conflict of interest in the Beam case. Carey was “very upset” upon reading Newman’s letter and immediately called Newman to tell him that he believed “in the strongest terms that [Carey & Danis] did not have a conflict of interest,” but that he did not want to cause any trouble with Newman, Thompson & Mitchell, or Chrysler. Carey inquired if they could put an end to “all this ugliness and nastiness” if he and Dan-is withdrew from the Beam case. Newman did not make any promises, but thought that might appease Chrysler.

Thereafter, the Beam case was voluntarily dismissed and then joined with Grossman’s case in New Jersey. Carey & Danis withdrew from Beam, but the Danis, Cooper firm and John Deakle were among the attorneys listed for the plaintiffs. Carey & Danis associated with a group of class action attorneys — David Danis and John Deakle, among others 11 — that often worked together on cases and shared information. A number of these attorneys were involved in Chrysler ABS litigation. Members of this group would forward correspondence regarding the ABS litigation to each other and many of these communications would find their way to Carey & Danis.

C. Chrysler v. Carey & Danis — False and Misleading Statements

Respondents Carey and Danis notified their malpractice insurer of a potential lawsuit by Chrysler and gave the insurer copies of documents that could be relevant — including the Grossman letter. The insurer later met with Lou Basso, the attorney Carey and Danis had chosen to represent them. 12 The insurer gave the documents respondents had compiled to Mr. Basso. Basso made copies and then returned the documents to the insurer. Carey and Danis had also given the original Grossman letter to Basso, along with some other documents, when Basso was originally retained.

On March 26,1996, Chrysler sued Carey & Danis for breach of fiduciary duty and respondents were served with process. Chrysler alleged that Carey & Danis, though not attorneys of record, assisted a group of lawyers in prosecuting ABS class action claims against Chrysler. Chrysler served interrogatories and requests for production upon both Carey and Danis, individually.

*488 Between March 26, 1996 (when respondents were served) and October 28, 1996 (when respondents submitted sworn discovery answers), there was a good deal of communication between the members of the group. Among these communications was a series of letters and faxes regarding Chrysler ABS cases from members of the group that were either sent directly or carbon copied to either Carey & Danis or respondents individually. However, both Carey and Danis testified that only a few of these documents actually made their way to their desks. Respondents had instructed their staff that Carey & Danis was not to get any Chrysler materials and that such correspondence should be given to David Danis. The instruction to “cutoff’ any correspondence regarding Chrysler remained, even after discovery in Chi’ysler v. Carey & Danis had begun and Chrysler had specifically requested such documents.

Despite their denials, Carey & Danis’ involvement in the prosecution of the class action lawsuits against Chrysler continued. On March 28,1996 — only two days after he and Danis were served with process — Carey dictated a memorandum to the file regarding the potential use of a witness named Sheridan. Carey stated, “Sheridan should be useful in two respects: (1) as an expert witness in the New Jersey ABS case regarding defects in Chrysler’s anti-lock braking system; and (2) as a fact witness in Chrysler’s suit against us regarding Chrysler’s outrageous and abusive practices.”

Carey told Richard Paletta, a lawyer in the group, about the Alabama Chrysler ABS case over lunch one day. Carey explained that the case was filed in Alabama because David Danis was concerned about getting cut out of the attorneys’ fees in the New Jersey case.

On October 28, 1996, both Carey and Danis provided sworn answers to identical sets of interrogatories. Interrogatory No. 2 to each was as follows:

State whether you have communicated with anyone (other than Dennis Beam and ... any employee of Carey & Danis, L.L.C.) regarding the subject matter of the St. Louis, Hattiesburg, or New Jersey class actions referenced ..., or the class action suit Betty Brown, et al. v. Chrysler Corp. et al, filed in the Circuit Court of Sumter County, Alabama. For each such communication, state the following:

a. the time and place at which it was made;

b. the name and address of each person who was a party to such communication;

c. the substance of the communication providing as much detail as possible;

d. identification of any document or recording relating to such communication.

Respondents each provided the following sworn answer:

ANSWER:

a. from time to time, the exact dates are unknown;

b. David Danis, 8482 Maryland Ave., St. Louis, Missouri 63105;

c. these were casual conversations that took place, over lunch, as to what was going on with the New Jersey case.

d. no such documents exist.

Document Request No. 12 requested each respondent to produce “any correspondence, memoranda, or notes relating to the subject matter” of the cases mentioned in Interrogatory No. 2. Carey and Danis both answered: “No such documents are in the possession of Defendants.”

The lawyers representing Chrysler did not believe Carey’s and Danis’ answers to *489 their interrogatories. Chrysler subpoenaed other members of the ABS group: Mr. Phebus in Illinois, Mr. Deakle in Mississippi, and Danis, Cooper. Chrysler also obtained federal court orders pertaining to these documents. These efforts resulted in the production of forty-two pieces of correspondence that were not produced by either Carey or Danis. After the documents were ordered produced, Joseph Danis wrote a letter to members of the group asking them to not send Carey & Danis any correspondence involving Chrysler litigation, as Carey & Danis did not have “any involvement in this litigation.” Respondents explained their failure to identify or acknowledge the existence of the documents by saying they had never seen them or had seen them but forgotten about them, thrown them away, or given them to David Danis. Respondents did not forget about the meeting with Blumen-feld lawyers discussing the Beam case, 13 but claimed it was not subject to the interrogatory because it was “presuit.” Respondents also consistently defended this conduct by blaming their attorney, even though they reviewed and signed their own interrogatories. For example, when asked about his answer to Interrogatory No. 2, Carey answered, “It was prepared by my attorney. I believed it to be trae, honest, and correct at the time.” Joseph Danis went so far in his Disciplinary Hearing testimony as to question whether or not he even saw his interrogatory answers. Dan-is testified:

I don’t have any recollection of ever seeing those requests.

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It’s come to my attention that my attorney received a request for production of documents directed at my firm and myself as well as my partner.

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Again, it’s come to my attention that Mr. Wuestling prepared a response. I have a vague recollection that Rick had prepared a response and wanted me to sign the response. I have no recollection reviewing any interrogatories or document requests, or executing them.

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Now I have reason to believe that I never executed my interrogatories.

However, in his deposition testimony, Dan-is specifically said, “I actually recall this being sent for my execution” and that he reviewed the responses for their authenticity and genuineness.

On March 13, 1997, Judge Perry of the Federal District Court for the Eastern District of Missouri entered discovery orders in the case. With respect to Document Request No. 8, Judge Perry ordered both Carey and Danis to produce “all documents that pertained or referred to actual or anticipated litigation against Chrysler Corporation regarding any anti-lock brakes, heater cores or vehicle latches.” Pursuant to Document Request No. 25, Judge Perry ordered production of “all documents which refer or relate to fee sharing or joint representation agreements with any attorneys or law firms concerning a client represented by Carey & Danis.” Again, each respondent faded to provide any such documents to Chrysler and each responded, “With regard to matters in which Chrysler was a party, no such documents exist. Defendant never had a fee arrangement on the Beam case or any Chrysler matter, and defendant has never *490 received any fee derived from any matter related to Chrysler.”

Chrysler v. Carey & Danis went to trial in September 1998. On the fourth day of trial, respondents’ attorney, Lou Basso, sought to use the Grossman letter to impeach some evidence. Chrysler’s attorneys realized that the letter had never been produced during the course of discovery — even after the appearance of the forty-two documents and Judge Perry’s prior discovery orders. Chrysler moved to strike Carey & Danis’ answer.

The Grossman letter states in pertinent part:

Gentlemen:

Both my father, David Danis, and I enjoyed meeting with you last Sunday. We look forward to working with you in this matter and the other matters we discussed in the future.

We have preliminarily discussed your suggestion of consolidating our cases and pursuing the matter [in New Jersey]. Your suggestion has merit, and we are seriously entertaining the invitation ....

Please provide us with a general analysis of what you anticipate our role in the litigation would be if we consolidated our case, the Mississippi case and join the other plaintiffs we have lined up in other states to your suit. It is my suggestion that we negotiate some percentage of attorney fee allocation at the outset to protect both of our interests, and leave some flexibility for the remainder so that it may be adjusted according to the amount of work and contribution provided by each party in the litigation

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This case has good merit and there will be plenty of money for all of the participants ....

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Very truly yours,

CAREY & DANIS, L.L.C.

/s/ Joseph P. Danis

Respondents’ position regarding their failure to identify this letter is somewhat inconsistent. First, they maintain that the Grossman letter is not subject to the order because there was never any actual fee agreement. With respect to the letter, Carey testified, “There is a proposal to share legal fees. There’s no written agreement or arrangement that I’m aware of that ever existed.” In the alternative, respondents maintain that failure to produce the letter was out of inadvertence or negligence, not dishonesty.

Respondents’ attorney, Lou Basso, explained that at the trial there “was reference to the New Jersey litigation as a conspiracy in opening statement” and that this was “sort of a ... twist that happened at trial and we didn’t know where they were going with it.” Basso “asked [Danis] and [Carey] the night before if they had any airline tickets, or anything like that, to prove that they had gone out to New Jersey, or anything. And they thought in [sic] having this.” Basso asked them if they remembered the letter and “they looked at [him] shocked. They didn’t even remember writing the letter.” Basso found the letter “in a black notebook on some documents that [he] had received very early on in the lawsuit.” He testified that he remembered these events specifically, because “Joe [Danis] looked at me and goes, “Well, where did you get this? Where did this come from?’ ”

Joseph Danis’ testimony at the disciplinary hearing was slightly different and somewhat inconsistent. First, Danis said he remembered the letter vividly.

Q: (By Ms. Church) Well, do you remember it?

*491 A: Yeah, I remember it vividly.

Q: That’s the letter ... dated December 13,1995 to Stanley Grossman?

A: That’s correct.

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Q: (By Ms. Church) Do you recall writing this letter?

A: Yes, I do.

However, later in his testimony, Danis testified:

Q: So one of your lawyer’s had it?

A: That’s correct.

Q: You knew it existed?

A: I didn’t recall that it existed. In fact, I had forgot about it until sometime during the middle of trial Lou [Basso] showed us this letter.

Q: Would you agree with me that it was never turned over in response to the request for production of documents for the interrogatory answer?

A: It was turned over to our attorneys through our insurance carrier. And what they turned over to Chrysler I don’t know. I did not review all the documents that were turned over.

Danis testified that, even before he and Carey had been served in the Chrysler v. Carey & Danis lawsuit, Carey & Danis’ malpractice insurer turned over the Gross-man letter to Mr. Basso. Danis testified that Basso gave Carey & Danis’ other attorney, Rick Wuestling, some of the documents, but did not give Wuestling the Grossman letter out of inadvertence. Danis did confirm that during trial, Basso remembered 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.

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I was shocked to see all of this communication between Mr. Carey and Dan-is and these lawyers, but I figured they had an explanation .... [referring to the forty-two documents found by Chrysler and not produced by Respondents]

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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.

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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 are .... [T]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

*492 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....

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What [the Grossman letter] tells me is that we’re not following the normal rules of discovery .... [T]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 ....

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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 which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation ....

It is not disputed that respondents Carey and Danis formerly represented the Chrysler Corporation, nor is it disputed that respondents’ representation of the plaintiffs against Chrysler in Beam was materially adverse to Chrysler. The only issue presented is whether the Beam case was “substantially related” to Carey’s and Danis’ previous defense work for Chrysler.

“Gallons of ink” have been consumed by those trying to articulate or explain the test for deciding whether a substantial relationship exists between two representations. ABA/BNA Lawyer’s Manual on Professional Conduct, 51:215. See also Chrispens v. Coastal Ref. & Mktg., Inc., 257 Kan. 745, 897 P.2d 104, 111 (1995). The “substantially related” test was first announced in T.C. Theatre Corp. v. Warner Brothers Pictures, Inc., 113 F.Supp. 265 (S.D.N.Y.1953). In announcing the rule, the court was primarily concerned with preserving client confidences and avoiding conflicts of interest. 14 *493 T.C. Theatre, 113 F.Supp. at 268-69. The court said:

It would defeat an important purpose of the rule of secrecy — to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client’s private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position “where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship.” In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition ....

Id. at 269 (citation omitted).

Other courts have also commented on the rule’s purpose:

It is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide completely in their attorneys. Second, the rule is important for the maintenance of public confidence in the integrity of the bar. Finally, and importantly, a client has a right to expect the loyalty of his attorney in the matter for which he is retained.

Kaselaan & D’Angelo Assoc., Inc. v. D'Angelo, 144 F.R.D. 235, 239 (D.N.J. 1992) (citing In re Com Derivatives Antitrust Litig., 748 F.2d 157, 162 (3d Cir. 1984)). Important policies behind the rule include the promotion of “fundamental fairness ... by prohibiting an attorney from using an informational advantage gained in the course of a former representation, the desire to promote client disclosure of all pertinent information ..., and the desire to promote confidence in the integrity of the judicial system.” Columbus Credit Co. v. Evans, 82 Ohio App.3d 798, 613 N.E.2d 671, 676 (1992).

There are three primary tests for substantial relationship used throughout the country. See Chrispens, 897 P.2d at 111. The first approach compares the facts of the former and current representations. Id. The second approach, which has not been widely adopted, insists that the issues involved in the two representations be identical or essentially the same. Id. The third approach, developed by the Seventh Circuit Court of Appeals, blends the fact and issue comparisons into a three-step test. Id. The Seventh Circuit test states:

[D]isqualification questions require three levels of inquiry. Initially, the trial judge must make a factual reeon- *494 struction of the scope of the prior legal representation. Second, it must be determined whether it is reasonable to infer that the confidential information allegedly given would have been given to a lawyer representing a client in those matters. Finally, it must be determined whether that information is relevant to the issues raised in the litigation pending against the former client.

Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221, 225 (7th Cir.1978). The test “does not require the former client to show that actual confidences were disclosed. That inquiry would be improper as requiring the very disclosure that [MRPC 1.9(a)] is intended to protect.” Chrispens, 897 P.2d at 112.

Missouri addressed substantial relationship in State v. Sm