March 6, 2010
A Perfect Storm
A Michigan disciplinary hearing panel has found that the attorney representing former Detroit Mayor Kwame Kilpatrick violated ethics rules in defending the Mayor in civil litigation. The panel's 83 page opinion describes the events that unfolded as an "ideal law school final examination in professional ethics" and a "perfect storm" of circumstances that led to the violations.
The panel unanimously found violations by the attorney in attempting to cover up a settlement agreement and keep it secret, assisting in the cover up of false testimony, failing to disclose false testimony to a tribunal and not responding truthfully to the request for investigation.
The testimony at issue related to the false denials of an intimate relationship between the Mayor and a witness at the civil trial. Opposing counsel obtained highly incriminating text message evidence of the relationship through a post-trial third party subpoena and showed portions to the attorney. The information led to a post-trial settlement after a parking lot discussion between counsel. The settlement documents were drafted to avoid disclosure of the text messages.
The panel rejected a number of charges, including an alleged violation of Rule 4.1 and an uncharged violation of Rule 8.4 in somehow assisting the misconduct of opposing counsel with respect to the text messages. The panel also found no violation of the Rule 8.3 duty to report the misconduct of opposing counsel and the Mayor.
The panel also noted that the seven day hearing was one of the longest in Michigan bar history and that several of the witnesses may have been biased as they also face related bar discipline charges.
The matter was set for a prompt determination of appropriate discipline for the misconduct.
In a related matter involving charges of ethical violations against the attorney who had represented two whistle blowers with claims involving the Mayor, a separate panel found that the attorney had violated a court order by issuing the above-described third party subpoena without notice to the other side. The panel further found that he violated the court order directing in camera inspection of the text messages which had remained in effect after the trial.
The panel rejected his various defenses to his conduct, which they summarized as follows: (1) the other side started it; (2) everyone does it; (3) he had to do it to get what he wanted; and (4) he was "fighting the good fight" and "didn't hurt anybody."
The panel found that the attorney had not violated a charged Rule 8.3(a) violation in failing to report the Mayor's false testimony to disciplinary authorities. Although he had knowledge of the misconduct, the matter was still in litigation where the attorney could consider the client's interests. Notably, the attorney had testified that he was "not familiar with the rule" requiring a report until a newspaper reporter told him of the ethical obligation. The panel also considered the unique circumstances of the case against the Mayor in reaching its result on the charge.
The attorney who represented the whistle blowers testified in the discipline case against the Mayor's attorney. That panel found he testified falsely.
There are three related pending matters that are awaiting panel reports. (Mike Frisch)
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