May 2, 2011
Hindsight Bias Does Not Justify Finding An Ethics Violation
The Michigan Attorney Discipline Board has affirmed a hearing panel's dismissal of ethics charges against the outside attorney who had represented the City of Detroit in the high-profile Kwame Kilpatrick whistleblower litigation. The hearing panel found that the charges had not been proven by a preponderance of the evidence.
The charges alleged that the attorney failed to communicate with the City Council over the terms of the settlement agreement. The board agreed with the panel that, as outside counsel, the accused attorney had reasonably relied on inside counsel to communicate with the City Council.
Given the notoriety surrounding the...litigation and related discipline cases against other attorneys involved, some might suspect or presume that respondent, by virtue of sheer proximity to other alleged or proven misconduct, must have violated a rule of professional conduct or have known all that has been revealed after detailed investigation. In fact, such notoriety, speculation, and tendency toward highsight counsels strongly in favor of strict adherence to our limited responsibilities on review.
The board thus found no error in the panel's findings in support of dismissal of the charges.
As the bar cases against five attorneys involved in this litigation is winding down, charges remain pending before a hearing panel against an attorney in the City Law Department who had handled the process of obtaining the City Council's approval of the deal.
You can check the status of the various Kilpatrick-related cases here. (Mike Frisch)
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