Not Nitpicking; Misconduct Not Proven

The Michigan Attorney Discipline Board affirmed the dismissal by a hearing panel of ethics charges involving allegedly false deposition testimony 

Respondent was initially charged in a formal complaint with: (1) violating the criminal law, specifically, the Michigan Campaign Finance Act, MCL 169.254 (prohibiting corporate contributions to campaigns and providing that an agent’s actions in violation of this provision shall constitute a felony), contrary to MCR 9.104(5) and MRPC 8.4(b); and, (2) alleging that answers given by respondent while testifying as a witness during a deposition in a civil action were “intentionally and knowingly false and misleading,” contrary to MRPC 8.4(b). Respondent successfully challenged the criminal conduct charge prior to hearing…

Respondent came to be deposed in a civil action for malicious prosecution as a result of his representation of Meijer, Inc., which sought to open a store in Acme Township, Michigan. The Township Board granted a special use permit, then, after the Board’s composition changed as a result of this action, it took actions to slow or halt the development of “big box” stores in the township. Citizen’s groups were formed, litigation, a referendum, and a recall election ensued.

The dismissal order was not clearly erroneous

We are not persuaded that the panel’s findings were clearly erroneous, for at least two reasons. First, to prove the falsity of an answer disclaiming knowledge as to “how big a role” Meijer played in an election, it would have to be established that the person answering had complete knowledge of Meijer’ s activities and “the role” those activities played in the election. We agree with the hearing panel that the proofs were inadequate to the task.

Also, we agree with Mr. Stoepker that the task would be almost impossible to accomplish. The question asks for an opinion or a judgment, not really a verifiable response. The questioner asked whether Mr. Stoepker could tell the questioner “how big a role” Meijer played. The questioner did not ask “what do you know about Meijer’s involvement in the referendum?” or even “what do you know about the role Meijer played?” These are not nitpicking distinctions. The question actually asked matters greatly when it is alleged that the answer is false.

(Mike Frisch)