June 24, 2009 in City

Dual legal role is under scrutiny

Lawyer defends officer, city in distinct cases
Jonathan Brunt And Thomas Clouse Staff writers
 
Video: Otto Zehm / Zip Trip camera 3
Video: Otto Zehm / Security camera footage
Christopher Anderson photo

Oreskovich
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Spokane’s City Council president called Tuesday for a new look at a lawyer’s dual role in the Otto Zehm case.

Carl Oreskovich is handling the case from two angles: He’s representing the city against a civil lawsuit filed on behalf of the dead man’s mother, and he’s defending the police officer who faces federal charges of violating Zehm’s civil rights and lying about their fatal confrontation.

“The dual representation has to be re-evaluated in light of the federal indictment,” Joe Shogan said.

At issue is whether the city’s best interest in the civil suit also is the best interest of the officer, Karl F. Thompson Jr., in criminal dealings.

On Monday, U.S. Attorney James McDevitt announced that a federal grand jury has indicted Thompson for violating Zehm’s civil rights by “unreasonable use of force” and for lying to investigators after the March 2006 confrontation with Zehm at a Zip Trip on North Division Street.

A legal ethics expert contacted Tuesday said having Oreskovich handle both matters likely is legal, though full of potential pitfalls.

“Can this be done? Yes, probably,” said John Strait, an associate professor of law who teaches ethics at Seattle University School of Law. “I think it’s probably not the safest way to do it, from everybody’s prospective, but it’s not forbidden.”

City spokeswoman Marlene Feist said Tuesday the city conducted a “conflict analysis” before hiring Oreskovich and will do another one as a result of the federal charges.

Mayor Mary Verner said the city vetted Oreskovich’s hiring.

“It’s a matter of looking at the specific circumstances. It’s not automatically a conflict of interest,” Verner said Monday. “This is a matter that has a lot of attention being paid to it and a lot of scrutiny, so that assessment was really made early on.”

Strait said Oreskovich’s dual role opens the door for city officials to pressure him not to settle the criminal case to prevent damaging the city’s defense in the civil case. As a protection, the city would need a signed waiver from Thompson signifying that he is aware and approves of the potential conflict, Strait said.

“If they dotted their I’s and crossed their T’s it’s probably a permissible joint representation,” Strait said. “Generally speaking, I wouldn’t want the criminal defense lawyer looking over his shoulder on the civil cases and vice versa.”

It was unclear whether Thompson has signed any waivers related to potential conflicts. Attempts made to reach Oreskovich late Tuesday were unsuccessful.

City Attorney Howard Delaney said Monday that the city hired Oreskovich, in part, because he is a respected attorney who has experience arguing against police actions. “He brings, frankly, a perspective of the other side of the fence,” Delaney said.

On March 18, 2006, two young women erroneously reported that Zehm stole their money from an ATM. Thompson was the first officer to arrive. Video surveillance showed that Thompson immediately engaged Zehm from behind and began hitting him with a police baton.

Six more officers arrived and joined the struggle in which officers shocked Zehm several times with a Taser and used nylon straps to hogtie him in a prone position. Zehm eventually stopped breathing and died in a hospital two days later.

A lawsuit was filed on behalf of Zehm’s mother, Ann Zehm, by the Center for Justice in March. On Friday – the day the federal grand jury reached its decision – city officials released their response to accusations made in the lawsuit. The city argues that Zehm was responsible for the police confrontation.

Delaney said the timing of the release was based on events in the civil case. Asked whether it also was related to the possibility that criminal charges would be announced this week, Delaney said: “I’m not sure we thought it through that much.”

In October, the Spokane City Council authorized paying as much as $45,000 for Oreskovich’s law firm to defend the city. Last month, the council raised the maximum to $200,000 – an amount officials said would pay for the firm’s services in a civil trial.

Councilman Richard Rush said he was unaware of Oreskovich’s dual role until Monday. He said he agrees with Shogan that representation should be re-evaluated.

Rules prevent the city from paying for Thompson’s criminal representation, although it could reimburse him if he’s acquitted, Delaney said.

Jonathan Brunt can be reached at jonathanb@spokesman.com. Thomas Clouse can be reached at tomc@spokesman.com.

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