THE RIVER RATS

We received some unexpected comments on the most recent installment of our "River of Corruption" series in which we detailed the involvement of eight local attorneys in the Toxic Towers dumping scandal, a.k.a. the River Rats.  No one disagreed that the conduct of these lawyers was abominable.  Instead our respondents were surprised that their deceitful actions were ethically proscribed.  One wag asked me, "Isn't a lawyer a liar by definition?"  It seems, dear readers, that some of you have so low of an opinion of the legal profession that you believe the bar doesn't even bother to set standards for honesty and fair-dealing.

There are in fact standards governing the ethical conduct of attorneys.  In this state those standards are embodied in the Michigan Rules of Professional Conduct (MRPC).  The Michigan Supreme Court is responsible for formulating these standards and disciplining attorneys who do not comply with them.  The Supreme Court has delegated the disciplinary function to the Attorney Grievance Commission (AGC), which is a body composed mostly of attorneys to investigate, prosecute, and discipline their miscreant brethren.  The AGC's record is a mixed bag, as might be expected of a fox guarding the henhouse, but that's another story.  The point here is that, without regard to any failure of the AGC to act (because the final say always rests with the Supreme Court), we tagged each of the River Rats with ethical misconduct that we have found to be in violation of the MRPC.

For example, we cited Dick Wendt for unethically serving two masters to the advantage of one over the other.  While Wendt was representing the City of Grand Rapids in the negotiation of a tax subsidy for the Boardwalk developers, his law firm was representing the developers!  No surprise that City taxpayers ended up with a raw deal.  This is a clear conflict of interest.  Wendt had a duty of loyalty to negotiate (or even refuse to offer) a tax subsidy to the Boardwalk developers that was in the best interest of the residents and taxpayers of the City of Grand Rapids, while at the same time his law firm wanted to obtain the best deal possible for the Boardwalk developers.

So who's Wendt's boss?  The taxpayers or his law firm?  That's a circle he cannot ethically square, which is why MRPC Rule 1.7(b) prohibited Wendt from representing the City in that case.*  Nevertheless, he did so to the disadvantage of City taxpayers when the Boardwalk developers landed a unprecedented $2.5 million tax subsidy for their project.

Another example, we told you that John Ferroli falsely briefed the court in our pending environmental citizen suit against the Boardwalk developers that the facts we alleged were knowingly false.  For Ferroli to ethically make such a charge he had to know with certainty from his own investigation of our claims that what we had alleged was untrue.  Having a difference of opinion is not enough to accuse someone of lying to a court, a very serious charge.  Of course, the videotape, photographic, and scientific soil test evidence is in and has substantiated the factual contentions of our citizen suit, so Ferroli could never have honestly known anything to the contrary sufficient to tar us with making false statements of fact to the court.  False accusations like this are a violation of MRPC Rule 3.3 which forbids a lawyer from knowingly making a false statement of material fact to a court.

So be assured, readers, that we are not complaining about the general nastiness of the River Rats.  We believe their misconduct in the Toxic Towers dumping scandal constitutes specific violations of the Michigan Rules of Professional Conduct.  We have already obtained some judicial findings to support our conclusions, and we expect more will come.  With those in hand, we will then pursue the discipline of these miscreants that is appropriate to their misdeeds.  Stay tuned.

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* MRPC Rule 1.7(b) does allow a lawyer to represent a client despite a conflict of interest if that client gives his informed consent to that representation.  (Even consent is not carte blanche for a conflicted lawyer, because he is required to have a reasonable belief that his representation of the client will not be materially limited by the conflict of interest.)  However, we made a Freedom of Information Act request of the City of Grand Rapids to find out if consent were ever given, and the City certified that there was no record of it.  Nor has Wendt produced any proof of consent.