Kilpatrick May Still Have to Answer to the Michigan Bar

The following article from the Michigan Lawyer's Weekly holds out some hope that justice for Mayor Kilpatrick need not be entrusted solely to the trembling hands of Kym Worthy or the Detroit City Council.

Next stop: Disbarment?

Allegations of perjury could land Detroit mayor in hot water with AGC

By Melissa P. Stewart, Esq.

Attorney Discipline
Detroit Mayor Kwame Kilpatrick may pay a hefty price for his attempts to cover up an illicit affair when the dust from his text message scandal finally settles.
He could be forced out of office.

He could face jail time.

He could be disbarred.

While it is still unclear whether Kilpatrick will enter a courtroom as a criminal defendant facing a perjury charge, chances are good that he will never again enter one as "counsel of record."
According to Robert E. Edick, deputy grievance administrator for the Attorney Grievance Commission (AGC), "Generally speaking, anytime there is a suggestion that someone has made misrepresentations to a court, or even has gone so far as to testify falsely under oath, the allegation is considered very serious."

In Kilpatrick's case, "suggestion" is an understatement.

The mayor came under fire recently weeks after the Detroit Free Press dredged up text messages that seemingly show both Kilpatrick and his then-chief of staff, Christine Beatty, lied under oath during the Whistleblower Protection Act case that captivated Detroiters late last summer.

/>During the trial, in which two former Detroit police officers successfully claimed they were wrongfully discharged when they got too close to the skeletons in the mayor's closet, Kilpatrick and Beatty denied firing the officers and denied allegations they had engaged in a sexual relationship.

The jurors didn't buy it, and it appears their instincts were correct.

From the more than 14,000 text messages the Free Press obtained through means "independent" of the related lawsuits, it appears Kilpatrick and Beatty lied.

Not only did the pair document their love affair in great detail in the text messages, but they also openly discussed their decision to fire Brown.

For Kilpatrick, in particular, the misstep could mark the end of his legal career, even if he does, ultimately, salvage his life in politics.

"As President Clinton discovered [when he lied under oath], a person is a lawyer 24 hours a day," said Peter J. Henning, a professional responsibility professor at Wayne State University Law School, referring to the five-year disbarment Clinton received after he lied in a deposition taken as part of the Paula Jones case.

"It doesn't matter in what context the conduct occurs, you can still be sanctioned for it," Henning said.

As such, he continued, if it's ultimately determined that Kilpatrick did lie under oath on the witness stand, "the fact that [Kilpatrick] wasn't acting as a lawyer does not affect whether he can be disciplined."

Enter Edick and the AGC.

Though Edick would not comment on Kilpatrick specifically because the Michigan Supreme Court forbids the AGC from revealing whether a grievance has been filed, he did say, "If a lawyer was found to have committed perjury, there is generally a presumption that he or she should be disbarred."

That is "because lawyers are required to demonstrate a high level of character and fitness to be licensed as a lawyer," Edick said.

Unlike some states, however, Michigan does not permanently disbar a lawyer, no matter how egregious the ethical violation.

Rather, a lawyer is forbidden to practice law for five years, after which he may attempt to regain his license.

According to Edick, though, "as a practical matter ... most lawyers who are disbarred are never reinstated again" because "not only do you have to persuade the discipline system that you have been rehabilitated, but you generally have to retake the bar exam."

In terms of an investigation, Edick said a criminal conviction serves as per se proof of misconduct.

"But, even if a criminal prosecutor declined to [press charges], we can still proceed with our own case," he said. "We have to prove the lawyer committed misconduct that amounts to a crime."
Traditionally, an AGC investigation takes three to six months to make its way before the Commission — six lawyers and three non-lawyer members who meet monthly to decide whether to refer cases to the Attorney Disciplinary Board (ADB) for adjudication.

"In certain situations, though, we are able to streamline," Edick said.

"Obviously, if we are presented with a criminal conviction, then we could probably move very quickly," he said. "If, on the other hand, there were simply media reports as to whether a particular lawyer had committed perjury, and there hadn't even been criminal charges filed, then it would be harder to say when that case may flower into a public complaint within the discipline system."

Regardless of the AGC's specific timeline, it appears almost certain that an investigation into Kilpatrick's alleged perjury is immient, because, as Edick said, the offense "goes to the heart of whether a person is fit to be a lawyer or not."

If you would like to comment on this story, please contact Melissa P. Stewart at (248) 865-3105 or melissa.stewart@mi.lawyersweekly.com.

By definition
MCL 750.423 defines perjury as "[a]ny person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall willfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than 15 years."

Domino effect
Depending on the circumstances, the Attorney Grievance Commission's investigation may not stop with Kwame Kilpatrick.

According to both Peter J. Henning, a professional responsibility professor at Wayne State University Law School, and Robert E. Edick, deputy grievance administrator for the Attorney Grievance Commission, Kilpatrick's attorneys could face their own perjury complaints if they "offered material evidence, and [came] to know of its falsity" but failed to take "reasonable remedial measures" in violation of Rule 3.3 of the Michigan Rules of Professional Conduct (MRPC).

Kilpatrick's lawyers would be subject to discipline "if they knowingly put on perjured testimony ... because it goes to the integrity of the judicial process," Henning said.

However, both agreed that proving actual knowledge of perjury, as required for disciplinary action, is no small undertaking.

"The nub of the problem is proving the state of mind," said Edick, because "someone who is being sued is entitled to have an aggressive defense."

That said, he continued, "Lawyers have to stop short of perverting the fact-finding process at a trial by deliberately presenting false evidence or testimony."

Despite the obvious challenges with proving an attorney's state of mind, Edick said, "It's a very suitable issue that would have to be investigated."

According to him, that investigation would include objective, albeit circumstantial, evidence used to prove that the lawyer has actual knowledge of the perjury.

In order to prevail on a complaint, "we don't need to have the lawyer admit he or she knew the testimony was false," Edick said.

Moreover, he observed, a lawyer's duty to take "reasonable remedial measures" does not end until "after the trial [has ended] and the appeals have been exhausted."

Meaning, if the attorneys involved in the Whistleblower case against the City of Detroit learned of the perjury following the trial — but prior to entering into the confidential settlement agreement — they could be subject to an investigation.

"In terms of ramming through a settlement, coupled with a confidential agreement, we would almost always investigate to make sure that there was no misconduct," Edick said.
But, he cautioned, "One or two small facts really can make the difference of whether something is innocent or should be prosecuted, so we do not prejudge."

Despite multiple attempts to contact them, neither Samuel E. McCargo, who represents Kilpatrick, nor Valerie A. Colbert-Osamuede, who represents the City of Detroit, responded to requests for comment.

Following suit?
Christine Beatty, Mayor Kwame Kilpatrick's chief of staff quit her day job in the aftermath of the text message scandal.

From the look of things, she might have to quit her night job, as well.

Beatty is presently enrolled as a part-time student at Wayne State University Law School, which means she will likely be sitting for the Michigan Bar Exam someday soon.

Character and Fitness Board Chair Robert B. Ebersole would not comment about what effect the text message controversy might have on a possible bar admission application by Beatty, except to say that "each case is evaluated individually."

Character and Fitness Committee member Lawrence J. Acker of Bloomfield Hills, however, said the type of behavior Beatty has been accused of engaging in "can be an indication that the applicant does not qualify to be admitted to the bar."

However, Acker cautioned, "the charge alone would not be a basis to prevent an applicant from passing character and fitness ... [because] the standard is that the applicant demonstrate clear and convincing evidence of their character and fitness to be a lawyer."

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