U.S. Department of Justice officials two years ago had significant enough “ethical concerns” with the city of Spokane’s legal department that they asked to meet with Mayor Mary Verner, police Chief Anne Kirkpatrick and City Council President Joe Shogan.
But none of the three ever responded, and it’s unclear whether City Attorney Howard Delaney even informed them of the request that an assistant U.S. attorney labeled “urgent.”
Shogan said last week that city attorneys never told him that federal officials wanted to meet.
When shown emails on file in federal court from the U.S. attorney’s office asking Delaney to set up a meeting, Verner said last week: “I have not read this before, and that’s the extent of what I’m going to say about it.”
In June 2009, when the U.S. attorney’s office requested the meeting, federal officials were investigating the death of 36-year-old Spokane resident Otto Zehm and were about to announce the indictment of Officer Karl F. Thompson Jr. on charges of using excessive force and lying to investigators. At the same time, city attorneys were defending officers and the city in a lawsuit filed on behalf of Zehm’s family.
Zehm, an unarmed janitor who had schizophrenia, was confronted by police in a north Spokane Zip Trip in March 2006 after he was wrongly accused of stealing money. He died two days after he was beaten, hogtied and shocked with a Taser. Thompson was the first arriving officer.
Delaney on Monday declined to comment on his office’s handling of the case.
City spokeswoman Marlene Feist said city attorneys appropriately briefed elected leaders.
“You’re asking us to re-create a briefing that occurred 24 months ago and was one of many, many briefings of officials in this matter,” Feist said in an email when asked if attorneys told Verner of the request. “What we can say is that our officials understood the issues that were being discussed at the time.”
Feist added that “it is highly unusual for an attorney to meet with another attorney’s clients.”
Kim Pearson, an assistant law professor at Gonzaga University who teaches professional responsibility, said it’s not unusual for attorneys to set up meetings with clients of other attorneys as long as attorneys from both sides are present.
She added that good practice would have been to inform the mayor, but failing to do so by itself may not constitute a violation of professional rules.
“Ultimately, it’s the city attorney’s role to make a judgment call,” Pearson said.
Attorneys had clashed for months
Federal officials believed city attorneys were interfering with the criminal investigation into Zehm’s death under the guise of defending the city in the civil suit, according to court records from 2009.
“We also expressed concerns that your assistant city civil counsel had placed his interests in the ‘civil liability’ case above the completion of the FBI’s and the DOJ’s search for the truth in its criminal investigation,” Assistant U.S. Attorney Timothy Durkin wrote in an email to Delaney requesting the meeting. Durkin’s letter was largely focused on work by Rocky Treppiedi, a longtime assistant city attorney who also serves on the Spokane School Board.
City attorneys call the concerns “baseless” and accuse U.S. attorneys of having an “overreaching desire to not only manage the prosecution” of the criminal case against Thompson “but the entire civil case and each of the civil litigants herein,” according to a court document the city filed in September 2009.
In the months leading up to the meeting request, federal officials had clashed with city attorneys in part out of their concern that Treppiedi was conducting a “shadow investigation” into the confidential federal grand jury that was examining the case, court records say.
U.S. attorneys noted in court filings in 2010 that Officer Jason Uberuaga, who made a formal statement in the criminal investigation, asked to amend his statement after meeting with Treppiedi. His original statement said that Thompson used force in excess of Police Department policy. After meeting with Treppiedi, Uberuaga said that Thompson may not have used excessive force based on Thompson’s “subjective” beliefs, court documents say. Uberuaga, however, did not change his position that based on video evidence, Thompson inaccurately described Zehm as threatening.
Treppiedi and Delaney denied that they were interfering with the criminal investigation and argued that they had a right to interview their clients – police officials and the city – to fight the civil claim made by the Zehm estate. Later in 2009, they accused U.S. attorneys of “attempting to improperly question witnesses about attorney-client privileged communications.” Federal officials denied the allegation in a later court filing.
Citing the city legal department’s “seeming lack of recent cooperation, interference and open refusal to comply with the DOJ’s confidentiality request,” Durkin asked Delaney to set up a meeting so federal officials could “promptly meet with your clients so that these and other pressing issues can be reviewed, addressed and resolved.”
Durkin declined to comment on the case last week.
In September 2009, U.S. attorneys filed the email correspondence between Delaney, Treppiedi and Durkin from June to support their argument that the civil trial should be delayed until Thompson’s criminal trial is completed. A judge agreed to put the civil suit on hiatus in October 2009.
City Council OKs new legal contract
The city’s legal department has essentially sided with Thompson’s version of events over those of the man who led the department at the time – Assistant Chief Jim Nicks – or other officers who have presented information that could be damaging to Thompson. Nicks told a grand jury that officers violated police policies during the confrontation; the city’s position is that officers followed proper procedure.
The civil case received renewed attention earlier this month when, after the release of a sworn statement by Nicks, Verner signaled a softening of the city’s position. She announced that she has directed city attorneys to move “the Otto Zehm matter toward resolution.”
The U.S. attorney’s office questioned how city attorneys could defend the city, Nicks and eight officers in the civil suit when some of them had provided testimony contradicting the city’s stance that all policies and procedures were followed, according to a document filed in April 2010. Soon after, the city agreed to stop representing Thompson in the civil case but maintained its representation of the others.
The Spokane City Council on Monday dealt with a second potential conflict of interest when it voted unanimously to hire a separate attorney to represent Nicks.
The city will pay up to $75,000 for Theodore J. Angelis of K&L Gates to represent Nicks.
Documents revealing Nicks’ stance on the case and calling into question the thoroughness of the police investigation were first released in March 2010.
Earlier this month, Verner declined to answer why Nicks didn’t get a separate attorney earlier. On Tuesday, however, she said the city was waiting for a signed statement.
“We are processing separate representation for Jim Nicks because he has filed an affidavit that is his sworn affidavit, not something that someone else said he was going to say,” she said. “Because the content of that affidavit puts him in a position that’s a separate legal position from the position of the corporate body of the city, then he requires separate legal representation.”
But Pearson, the assistant law professor, said a conflict of interest doesn’t need to be stated in a sworn document or sworn testimony for the conflict to exist. She added that under professional rules of conduct, an attorney has a duty to stop representing a client if a conflict between two clients arises and there’s a significant risk one might be harmed. The only way to continue representing clients of divergent interests is if they have been fully briefed about the potential problems and have signed statements agreeing to allow dual representation, she said.
The council earlier approved a contract for up to $200,000 for attorney Carl Oreskovich to represent Thompson in the civil matter.
In a court filing, the U.S. attorney’s office has questioned the city for continuing to represent other officers, including Uberuaga and now-retired Detective Terry Ferguson, who are defendants in the civil suit. Court records say Ferguson is expected to testify that there were “glaring missteps and omissions” in the police investigation into the confrontation.
Meanwhile, Breean Beggs, who along with Jeffry Finer represents the estate and mother of Otto Zehm, said last week that he hasn’t heard from the city since Verner announced that she is seeking to resolve the civil case for the sake of the city and Ann Zehm.
“I’m waiting,” said Beggs, who sent the city a letter seeking to restart negotiations some two weeks before Verner’s announcement. “We’ve had no phone calls or letters.”
Beggs, however, said he wasn’t concerned, and noted that Delaney recently was on vacation.
“They seem to take their time. I don’t know what’s going on,” Beggs said. “We don’t know what the plan is. I haven’t got that press release.”