Opinions and Orders

STATE OF MICHIGAN Attorney Discipline Board Grievance Administrator,

ATf . fllEO . I ORNEY DfSCIPLINE BOARD 12 AUG ... , PH 12: 13

Petitioner/Appellant,

v

Valerie Colbert-Osamuede, P 42506,

Respondent!A ppellee,

Case No. 09-46-GA

Decided: August 1,2012 Appearances: Cynthia C. Bullington, for the Grievance Administrator, Petitioner/Appellant Donald D. Campbell, for the Respondent! Appellee before the hearing panel Respondent, In Pro Per, on the review briefs Brian D. Einhorn, for the Respondent! Appellee at the review hearing

BOARD OPINION Respondent is the Chief Assistant Corporation Counsel of the Labor and Employment Division of the City of Detroit's Law Department. This case stems from her involvement in whistleblower litigation against the City ofDetroit and former Mayor Kwame Kilpatrick as well as Freedom ofInformationAct (FOIA) litigation against the city. The hearing panel below found that respondent engaged in various types ofmisconduct, including failure to explain a matter to the extent reasonably necessary to permit her client to make informed decisions in violation ofMRPC lA(b); representation of clients with directly adverse interests in violation of MRPC 1.7 (a); making false statements ofmaterial fact to a tribunal and third persons and unlawfully obstructing another party's access to evidence in violation ofMRPC 3.3(a)(I), 4.1, and 3A(a), respectively; and, knowingly making a false statement of material fact in her sworn statement made to the Attorney Grievance Commission in violation ofMRPC 8.1 (a)(I). The panel ordered that respondent be suspended for 90 days. The Grievance Administrator has petitioned for review and seeks an increase in discipline. Respondent has cross-petitioned and challenges the findings of the hearing panel and raises other claims oferror. We affirm the hearing panel's findings on misconduct and increase discipline to a suspension of 18 months.

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The hearing panel's report on misconduct recites the following facts, at pages 2-3 (with bracketed material in the original): The allegations contained in the complaint arose out of the respondent's involvement in several lawsuits brought in Wayne County Circuit Court against the City of Detroit. The first set of cases, so-called "Whistle Blower" actions, alleged retaliatory actions had been taken by City ofDetroit administrators against employees, and are entitled Brown v City ofDetroit, Case No. 03-317557-NZ [hereinafter the "Brown" matter!], and Harris v City ofDetroit, Case No. 03-337670-NZ [hereinafter the "Harris" matter]. Activities in these cases gave rise to a Freedom oflnformation Act [FOIA] action entitled Detroit Free Press v City ofDetroit, Case No. 08-100214­ CZ [hereinafter the "FOIA" matter]. Respondent, who is Chief Assistant Corporation Counsel of the Labor and Employment Division of the City of Detroit's Office of Corporation Counsel, participated in all of these cases.

! The Brown matter had been consolidated for trial with another "Whistle Blower" action involving Harold Nelthrope. Accordingly, reference may be made interchangeably to either the Brown or BrowniNelthrope matters.

* * * On September 11, 2007, jury verdicts were returned in the BrowniNelthrope matters. (Ex 1, P 51.) On October 17, 2007, counsel for both sides met at the office of a local law firm for the purpose of negotiating the attorney's fees for plaintiffs' counsel through facilitation. At some point during the negotiations, plaintiffs' counsel, Michael Stefani, indicated he had received copies of text messages which indicated the Mayor of the City of Detroit and his Chief of Staff had committed perjury when they testified in the BrowniNelthrope trial. This revelation served as a catalyst for settlement negotiations which ultimately culminated in the settlement ofthe BrowniNelthrope matter, as well as the Harris matter. A draft settlement agreement was prepared at the facilitation meeting, and counsel traveled to Stefani's office where a more formalized agreement was prepared and signed. (Exs 20 and 21.) These agreements included reference to the text messages.

On October 19, 2007, the Detroit Free Press submitted a FOIA request to the City of Detroit seeking information in both the BrowniNelthrope and Harris matters, which was to include "documents, attachments, exhibits, notes or other information related to the settlements." (Ex 27.) On October 27, 2007, the Mayor, Kwame Kilpatrick, rejected the settlement agreement ofOctober 17, 2007. (Ex 30.)

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After an exchange ofnumerous emails beginning on October 29, 2007, new settlement agreements were drafted and dated on November 1,2007,2 which lacked any reference to the text messages. (Ex 55 and 56.) The text messages became the subject of a third document, a confidentiality agreement, which was also signed on November 1, 2007. (Ex 57.)

2 Although these documents were dated November 1,2007, according to the respondent they were actually executed on December 5, 2007. (Tr 1113011 0, p39.)

On November 13,2007, the Detroit Free Press submitted a second FOIA request to the City of Detroit seeking:

The entire settlement agreements in the two separate Wayne County Circuit Court lawsuits between the above-mentioned parties [the BrowniNelthrope and Harris matters]. This request includes but is not limited to all documents, attachments, exhibits, notes, records or other information related to the conclusion of the cases .... [Ex 64.]

In its response to the FOIA request dated December 7,2007, which was granted in part and denied in part, the City provided only the November 1,2007, settlement agreements. (Ex 68.) Thereafter, on January 3,2008, the Detroit Free Press filed suit in Wayne County Circuit Court pursuant to Michigan'S FOIA statute. In its answer to the complaint dated January 24, 2008, the City averred denials of specific allegations, "[F]or the reason that Defendant provided its record in its possession that are non-exempt from disclosure under the Michigan Freedom of Information Act and which are responsive to Plaintiffs request." (Ex 73, ~'s 10, 11, and 17.) Also on January 24, 2007, the City filed affirmative and special defenses stating:

The City of Detroit and its agents did not execute, participate, negotiate, possess, or was [sic: were] otherwise involved in any additional documents related to the settlement of Brown and Nelthrope v City ofDetroit....et al. and Harris v City ofDetroit, et al. (Ex 74, ~ 8.)

As we have noted, the hearing panel found that respondent failed to apprise City Council of settlement temlS first reduced to writing on October 17, 2007, requiring that the plaintiffs and their

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attorney turn over the text messages to an attorney designated by the mayor and "refrain from disclosing to any person or entity the existence or content" of the text messages, and further providing for substantial liquidated damages to be paid to the City should the confidentiality provisions be breached. Respondent also made misrepresentations to the court and opposing counsel in the FOIA litigation to the effect that no agreements other than the November 1, 2007 agreements were known to the City's agents. The panel found misconduct as set forth elsewhere in this opinion. Respondent argues that there is insufficient evidentiary support for the findings and raises other claims of error. Alternatively, respondent argues that the hearing panel's imposition of a 90-day suspension should not be increased. We review a hearing panel's factual findings for "proper evidentiary support on the whole record." Grievance Administrator v Lopatin, 462 Mich 235,247-248 n 12; 612 NW2d 120 (2000). There is proper evidentiary support for the hearing panel's findings ofmisconduct in this case. With respect to the other issues raised by respondent, respondent first argues that the hearing panel chairperson should have been disqualified. The Board Chairperson denied two motions to disqualify the panel chairperson, and the Supreme Court denied respondent's petition for superintending control in an order dated March 5,2010, thereby declining to review the latter determination. We find no error in the Board Chairperson's decisions. Additionally, respondent argues that the panel erred in assessing costs for the fees ofthe petitioner's expert witness. We find no error in the hearing panel's application ofMCR 9.128. The central issue in this review proceeding is whether the suspension imposed by the hearing panel is an appropriate and sufficient sanction for the misconduct established in this case. The Grievance Administrator argues that disbarment is the appropriate sanction for respondent's false statements of fact to the tribunaL Respondent contends that the 90-day suspension should be affirmed. Counts Three and Four of the formal complaint deal with respondent's written and oral representations to a tribunal during the Freedom of Information Act (FOIA) litigation initiated by the Free Press. in an attempt to obtain settlement agreements and drafts resolving the BrowniNelthrope and Harris cases. Count Three alleges that "On or about January 24,2008, in the FOIA lawsuit, through Ellen Ha and Colbert-Osemuede, the City filed responsive pleadings to the Free Press's motion to expedite

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discovery," which stated in part that: "The City ofDetroit and its agents did not execute, participate, negotiate, possess, or was [sic] otherwise involved in any additional documents related to the settlement." \ Count Three further alleges the violation of various rules, among them: MRPC 3.3(a)(1) (false statement of material fact to a tribunal); MRPC 3.4(a) (unlawful obstruction of another party's access to evidence); MRPC 4.1 (false statement to a third person); MRPC 8.4(b) and MCR 9.104(A)(3) (rules prohibiting dishonesty); MRPC 8.4( c) and MCR 9 .104(A)(1) (prohibiting conduct prejudicial to the administration ofjustice); and, MRPC 8.4(a) (which prohibits violating the Rules of Professional Conduct through the acts of another). Count Four alleges that respondent knowingly and intentionally made false statements to Wayne Circuit Judge Robert Columbo, Jr., during a hearing held in the FOIA case on January 25, 2008, and that respondent violated MRPC 3.3, among other rules. The FOIA litigation had its genesis in FOIA requests by the Free Press as early as October 19,2007, seeking "the entire settlement agreements" in both cases, including all documents, whether or not labeled confidential or drafted by City ofDetroit lawyers.2 After receiving only the November 1,2007 settlement agreements, the Free Press commenced the ForA litigation on January 3,2008. By January 24t\ the Free Press had published the text messages, and, on that day, the Free Press filed an emergency motion to expedite discovery and seeking "secret settlement documents, which the Free Press believes directly reference and require the suppression ofthe referenced Skytel text messages.,,3 That same day, January 24,2008, respondent approved the City's response to the emergency motion, which stated: "The City of Detroit and its agents did not execute, participate, negotiate, possess, or was otherwise involved in any additional documents [sic] related to the settlement of [BrowniNelthrope and Harris].,,4 A hearing on the Free Press's motion was held the next day. Herschel Fink, counsel for the Free Press, quoted from the morning paper at the January 25, 2008 hearing before Judge Columbo. Mr. Fink read parts ofan article reporting that Michael Stefani

\ Formal Complaint, paragraphs 91-92. 2 See P's Ex 27 (Oct. 19, 2007 request); see also P's Ex 64 (Nov. 13, 2007 request). 3 Petitioner's Ex 75, p 2. 4 Petitioner's Ex 76, p 3.

-~---~ ---------

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(attorney for the plaintiffs Brown, Nelthrope and Harris) had, on the previous day, acknowledged the existence of "a confidentiality agreement governing secret details surrounding the ex-cops' 8.4 million dollar settlement, which the City agreed to pay after Kilpatrick lied under oath during the trial about the affair. The City's lawyers have said no such agreement exists.,,5 Ellen Ha, an attorney in the City's Law Department and the designated FOIA coordinator, argued against the Free Press's motion to expedite. It is not disputed that Ms. Ha was then unaware ofthe October 17,2007 agreement (or the November 1,2007 confidentiality agreement), and did not intend to mislead Judge Colombo during her argument, which concluded as follows: THE COURT: Okay. Now, what did the language in your answer say in regard to Plaintiff's assertion to "additional confidential documents." If such documents exist, they could only be documents signed by individuals in their private capacity, and not public records subject to disclosure under the Michigan Freedom oflnformation Act. The City ofDetroit and its agents did not execute, participate, negotiate, possess, or otherwise involved in [sic] any additional documents relating to the settlement of ... Brown and Nelthrope vs. City ofDetroit, et aI, and Harris vs. City ofDetroit, et al.

Why did you suggest, at least implicitly, that there might be some individual documents there? Do you think there might be?

MS. HA: There may be, but the City of Detroit did not participate in it.

THE COURT: Okay. Well-­ MS. HA: I can't say honestly here, standing up here, that there is or isn't. * * * THE COURT: Well, but there is some suggestion thatthere might be some private documents from that quote from Mr. Stefani in the newspaper, which makes me believe, ifhe's telling the truth, and I have no reason to believe he is not telling the truth, that there are other documents here.

5 Transcript of hearing on the motion to expedite discovery - Petitioner's Ex 78, pp 5-6.

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MS. HA: And that may be an evidence [sic] that Mr. Fink may have to prove to this Court. I don't think we can - - I mean, with all due respect to the paper, I don't think we can take judicial notice ofwhat the paper said. And it may be, and I'm just speculating, yes, there may be some document that Mr. Stefani participated with the Mayor himself. I don't know. I mean, ifMr. Stefani says it is, then so be it. But I don't have any knowledge to contradict that statement today.6

After a brief discussion about ordering SkyTel to preserve the messages, Mr. Fink made a suggestion that prompted the exchange between respondent and Judge Columbo that is the subject of Count Four: MR. FINK: Your Honor, could I respectfully suggest that you ask Ms. Colbert the same questions you asked Ms. Ha, because I believe she does know exactly the answer to your questions. I do believe she was involved in the negotiation of this. I believe there may actually have been multiple confidentiality agreements, which were changed in response to Free Press FOIA requests. I believe she knows, and I don't think she'll lie to you.

THE COURT: Are there some private agreements out there? MS. COLBERT-OSEMUEDE: I did not participate in the drafting, executing ofany private agreement between the Mayor, Mr. Stefani, Christine Beatty, or anyone on their behalf. So, I am unaware of any extra documents that may exist between Mr. Stefani, Mayor Kilpatrick and his private attorney, and Ms. Christine Beatty and her private attorney. The City of Detroit did not participate in any such documents.

THE COURT: Okay. MR. FINK: The question, your Honor, respectfully to her was, does she know of the existence. And she said she didn't participate in the drafting.

THE COURT: And she also said she was unaware. But let's specifically - - do you know of the existence of any confidential agreements involving the Mayor privately, or Christine Beatty?

6 Petitioner's Ex 78, pp 16 - 18.

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MS. COLBERT -OSEMUEDE: confidential agreements. 7

I am not aware of any

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Petitioner's Exhibit 21 is a document entitled "settlement agreement," signed by respondent in two separate places and on behalf of two parties, "Mayor Kwame Kilpatrick" and the "City of Detroit." That settlement agreement provided for settlement of the BrowniNelthrope and Harris cases, and that Stefani's firm would surrender all text messages for a certain period from the pager leased by the City and issued to Christine Beatty to an attorney designated by the Mayor. It further provided that the Stefani firm and the plaintiffs were bound to keep the existence and content ofthe texts confidential and that the City would be paid millions of dollars should there be a violation of this provision. On January 25, 2008, Judge Colombo also signed an order requiring Mr. Stefani to be deposed regarding any and all settlement agreements in his clients' lawsuits against the city, and to produce relevant documents. That deposition occurred on January 30,2008. On April 4, 2008, respondent wrote to Judge Colombo: Dear Judge Colombo: Since appearing in your courtroom on January 25, 2008, I have become aware that my statements to the Court should be supplemented and clarified.

As you are aware, the City ofDetroit filed a brief in connection with the FOIA case filed by the Detroit Free Press. In the brief, the City maintained that the City of Detroit and its agents did not execute, participate, negotiate, possess or otherwise get involved in any additional documents related to the settlement of Brown and Nelthrope v City of Detroit and Harris v City of Detroit.

In addition, the Court asked questions directly ofme on the record at the January 25,2008 hearing of the Free Press Motion to Expedite.

I have discovered the brief and my answers did not fully reflect all of the circumstances. This letter is submitted to clarify my prior statements.

7 Petitioner's Ex 78, P 18 - 19.

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The responses to the Court's questions were my best recollection at the time and were truthful. However, I have subsequently been reminded of an October 17,2007 document, that I, on behalf of the City of Detroit, did sign. I did not recall that document when participating in the drafting ofthe briefsubmitted to the Court nor did I recall it when responding to questions by the Court at the January 25th hearing.

My memory of the October 17,2007 document was refreshed only when that document was produced as an exhibit during the deposition of Michael D. [sic] Stefani.

Subsequent to the deposition, I have made a search of and found· in my electronic e-mails two items ....

Had I been aware of these items at the time, I would have suggested appropriate adjustments to the brief filed on behalf of the City of Detroit and I would have answered the questions posed differently.

If you have any questions, please contact [my attorney] ... Respectfully submitted, Valerie A. Colbert-Osamuede Chief Assistant Corporation Counsel City of Detroit Law Department8

The hearing panel's report on discipline, and the Administrator's brief in support of his petition for review, appropriately focus on respondent's misrepresentations to the tribunal. The panel report states in part: The misconduct found in this c~se is ofa most serious nature. As our starting point, we begin with Standard 6.1 of the American Bar Association Standards for Imposing Lawyer Sanctions and the rules relating to false statements, fraud, and misrepresent[ ation] promulgated thereunder. The importance ofcandor toward a tribunal or any administrative agency for that matter cannot be overstated. Additionally, the duty of candor toward a client and representation free of conflict are equally important concerns.

8 Petitioner's Ex 92.

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ABA Standard 6.1 advises that: Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration ofJustice or that involves dishonesty, fraud, deceit, or misrepresentation to a court.

ABA Standard 6.11 states:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

Comparatively, ABA Standard 6.12 states: Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

Taking into consideration the factors reflected in Standard 3.0 [primarily the respondent's mental state and the absence of actual injury caused by her misconduct] as well as the mitigating factors set forth below, the panel finds that a suspension is the appropriate discipline in this case. We make this finding for several reasons, notwithstanding the language of ABA Standard 6.12 regarding the taking ofremedial action, and the respondent's attempt to remedy her statements to the court in a letter dated April 4, 2008.

As reflected in the report on misconduct, the respondent's letter to the court was dispatched nearly ten weeks after the false statements, which were addressed in Counts Three and Four of the formal complaint, were made. We also find respondent's explanation for the false statements, which is reproduced on page five of the panel's report on misconduct, fails to satisfy the quality of remedial action envisioned by Standard 6.12. Moreover, Count Five of the

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formal complaint addresses the making ofa materially false statement to the Attorney Grievance Commission for which no remedial action was taken. Given the passage oftime between the making ofthe false statements and the albeit meager attempt to remedy them, coupled with the absence of any remedial activity with regard to Count Five, we find the requirements of Standard 6.12 have been met. [HP Report on Discipline, pp 2-3.]

The panel then considered discipline imposed in other cases before a discussion of the evidence of aggravating and mitigating circumstances, some of which follows: We have reviewed and considered the aggravating and mitigating circumstances delineated in ABA Standard 9.0, et seq. Despite the serious nature of our findings of misconduct, we considered a number of factors that mitigate against imposing a lengthy suspension or disbarment. As an initial observation, we note the absence of any prior history of misconduct or discipline. From the panoply of witnesses testifying on respondent's behalf in the sanction phase of this proceeding, coupled with the absence of any prior disciplinary history, this panel is of the opinion that the misconduct found in this case is aberrant in character. There is simply no evidence on the record tending to suggest that the respondent has engaged in any similar activity professionally or privately. We are also satisfied that it is highly unlikely that similar misconduct will be committed by respondent in the future.