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Topic: Stanley years:Arsenic, old friends & politics
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untanglingwebs
El Supremo

After writing a note for the file on the meetings with Turk and his concerns, Davenport was transferred and it was his belief the two incidents were related.

When questioned about Joyce Thomas,prt brought up his conversations with Gilcreast.
Gilcreast came to the FAEC offices on multiple occasions, beginning after Council turned down Gilcreast's contract to renovate the Kennedy Pool. After that Council meeting Davenport indicated Gilcreast spent an hour with him talking about the mayor, Joyce Thomas and the whole situation.

Davenport could not remember Gilcreasts first name but knew he was a contractor and a close friend of the mayors. Because gilcreast met weekly with the mayor, davenport believed the information he relayed came from the Mayor.

Gilcreast allegedly told Davenport that Thomas had wanted his job and that she was a close friend of the mayor's wife and Thomas reported what transpired at the Enterprise office.
Post Tue May 16, 2017 3:14 pm 
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untanglingwebs
El Supremo

Former 5th Ward Councilman Matt Taylor was always on top of the contaminated soil issue in University Park when he was on Council. I spoke to Taylor and Frank Timmons today and Taylor voiced concerns that the contamination has not been resolved despite two past efforts by council to resolve the problem. He said some residents are reporting illness., but it is unknown as to the cause.

Taylor keeps tabs on the ward still and was saddened by the number of foreclosures occurring in University Park. In a cursory search of University park, Zillow showed 5 forecloses and Homes.com showed 6 foreclosures. The median price was $69,900. That means the residents have lost a significant amount of their investment as these homes were sold at market rate.
Post Tue May 16, 2017 5:20 pm 
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untanglingwebs
El Supremo

136 F. Supp. 2d 678 (2000)
Elizabeth BANNER, Plaintiff,
v.
CITY OF FLINT and Carl Hamilton, Defendant.
No. 99-74600.
United States District Court, E.D. Michigan, Southern Division.

December 18, 2000.
*679 *680 E. Michael Morris, Morris & Doherty, Birmingham, MI, Glen N. Lenhoff, Michael E. Freifeld, Glen N. Lenhoff Assoc., Flint, MI, for Elizabeth Banner, plaintiffs.

Brian A. Kreucher, Keller, Thoma, Detroit, MI, Edward L. Parker, Karen E. McDonald, Flint City Attorney's Office, Flint, for Flint, MI, City of, Carl Hamilton, defendants.

OPINION AND ORDER SETTING ASIDE IN PART THE AUGUST 3, 2000 ORDER OF MAGISTRATE JUDGE THOMAS A. CARLSON

ROBERTS, District Judge.

A.

This reverse discrimination case is before the Court on Defendants' and Intervenor Vickie Rose's ("Rose") Objections to the Magistrate Judge's August 3, 2000 Recommended Order[1] on Defendant's Motion for Protective Order to Strike Intervenor Vickie Rose's Deposition Testimony and to Disqualify the Law Office of Glen N. Lenhoff.

As is apparent from the title of the Objections, this instant dispute arose out of the March 7, 2000 deposition of Rose. That deposition was noticed by Plaintiff's counsel Michael Freifeld of the Lenhoff law firm. Defendants and Rose contend that, in taking her deposition, attorney Michael Freifeld and his law firm committed ethical violations.

Based on the papers submitted and the evidentiary hearing held on November 3, 2000, the Court agrees.

B.

Rose is the Employee Health Clinic Coordinator for Flint. She met with Freifeld on what he recalls to be February 4, 2000. The purpose of meeting was for Freifeld to determine whether Rose had a viable lawsuit arising out of her employment with the City of Flint. Toward that end, Rose shared information with Freifeld regarding her then supervisor, Tony Morolla. Rose informed Freifeld that Morolla told her that he would not follow up on white employees' discrimination complaints. Morolla's alleged reason was that the Flint mayor did not want Morolla to upset black employees before an election. Both of these pieces of information are relevant to Banner's lawsuit against Defendants for reverse discrimination.

After hearing her employment complaints, Freifeld told Rose that she did not have an actionable claim. She recalls that *681 he told her that she should contact him if anything new occurred, holding out the possibility of future representation. Freifeld, however, does not recall indicating that he might represent Rose in the future.

Both Freifeld and Rose agree that, at some point during their discussion, he asked her if she knew Banner and if she knew that Banner had filed a lawsuit against the City. Rose did know Banner, because Banner had filed a stress claim with Rose, who receives such claims in her capacity as the Employee Health Clinic Coordinator for Flint. The Freifeld/Rose discussion then turned to whether Rose would divulge the information she had shared regarding Morolla in the Banner lawsuit and in other reverse discrimination lawsuits filed by the Lenhoff firm against Flint.

Rose and Freifeld both testified that he asked Rose to sign an affidavit and that Rose indicated she would like to think about it. However, they differ on whether they discussed Rose disclosing the information in a deposition. Freifeld testified that Rose agreed to the deposition, stating that it would look more involuntary than if she signed an affidavit. Rose denies that she ever agreed to the deposition. She testified that she left Freifeld's office with only an agreement for her to consider signing an affidavit.

Subsequently, Rose was notified by the City of Flint legal staff that her deposition had been noticed in the Banner lawsuit. Rose appeared for the March 7, 2000 deposition without notifying Flint's attorneys about her consultation with Freifeld. However, the attorney for the City of Flint did ask Rose during her deposition whether she had met with counsel from the Lenhoff office, presumably because of the precise nature of the questioning during the deposition, Freifeld's questions mirrored the discussion Rose had had with him during their consultation. Following the deposition, the Flint attorney did not get any other information from Rose concerning her consultation with Freifeld.

Rose's deposition was noticed again, by another attorney with a reverse discrimination case against the City of Flint, for May 12, 2000. Flint was represented by yet another attorney. In a discussion off record, Rose finally told Flint counsel that she had consulted with the Lenhoff firm. Thereafter, Flint counsel interjected numerous objections at the May 12th deposition. However, none of them was based on attorney-client privilege.

Thereafter, on June 27, 2000, Defendants and Rose filed their Motion for Protective Order to Strike Ms. Rose's Deposition Testimony and to Disqualify the Law Office of Glen N. Lenhoff. They argued that Freifeld had violated Rose's attorney-client privilege and that she did not waive her privilege by answering Freifeld's deposition questions. Defendants and Rose requested that the Court suppress Rose's testimony, prevent that testimony from being disclosed to anyone or used in any legal or administrative proceedings, and bar Plaintiff's attorney or other counsel from inquiring into areas in which Rose asserts her attorney-client privilege at any other depositions, court or administrative proceedings.

Defendants and Rose additionally reques
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Last edited by untanglingwebs on Wed May 17, 2017 8:01 pm; edited 1 time in total
Post Wed May 17, 2017 7:54 pm 
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untanglingwebs
El Supremo

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Elizabeth BANNER, Plaintiff,
v.
CITY OF FLINT and Carl Hamilton, Defendant.
Showing page number 2 of 7.

...ted that the Court enter a protective order forbidding Freifeld from contacting Flint's managerial employees. The primary managerial staff member with which Freifeld was alleged to have had improper communications was Gary Lee, one of Banner's former supervisors.
In opposition to the Motion, Plaintiff asserted that Rose waived her attorney-client privilege when she showed for her deposition and answered questions without objection. Plaintiff then argued that her *682 attorneys should not be disqualified or sanctioned even if ethical violations occurred. Finally, Plaintiff opposed the request for a protective order and argued that her attorney's contact with Flint managerial staff was not improper.

Following oral argument, Magistrate Judge Thomas A. Carlson granted Defendants and Rose's request for a protective order, but denied their motion to strike or suppress Rose's deposition testimony and to disqualify Plaintiff's law firm. As for his decision to allow Rose's deposition to be used in this litigation, Magistrate Judge Carlson reasoned,

[E]ven if Ms. Rose subjectively believed her initial communications to attorney Freifeld were to be confidential, her subsequent voluntary appearance at a deposition, knowing that the deposition would be disclosed and used in this case, with no objection to the inquiries at or before the deposition, either to Mr. Freifeld or Defendant City's counsel, and with no attempt to seek other legal advice, constituted a voluntary waiver of any attorney-client privilege or other claim for confidentiality as to what she initially told Mr. Freifeld, and, further, that there is therefore no basis for disqualifying Plaintiff's counsel.
(Magistrate Judge Carlson's August 3, 2000 Order).

Since Magistrate Judge Carlson granted Defendants' request for a protective order pertaining to Flint's managerial staff, their Objections address only the denial of their request to have Rose's deposition testimony stricken and to have Plaintiff's attorneys disqualified.

C.

Fed.R.Civ.P. 72(a) authorizes this Court to set aside Magistrate Judge Carlson's Order if it is found to be "clearly erroneous or contrary to law." In this case, the Court finds that that portion of the Order denying Defendants' and Rose's request to strike her deposition, was clearly erroneous and therefore, will set it aside.

Magistrate Judge Carlson's reliance upon the general rule — that failing to object prior to the disclosure of privileged communication acts as a waiver to that privilege — was misplaced. None of the cases cited by Plaintiff regarding waiver of the attorney-client privilege addressed the nuance of this case: that the deposition examiner seeking to disclose the confidential information is the examinee's own attorney.[2]

That distinguishable nuance is significant because Freifeld's actions, as alleged by Rose, constituted an ethical violation. It has been recognized that "an attorney who cross-examines former clients inherently encounters divided loyalties." U.S. v. Moscony, 927 F.2d 742, 750 (3rd Cir. 1991). Also see Pyle v. Meritor Savings Bank, 1994 WL 156707 (E.D.Pa.1994). Consequently, rules of professional conduct forbid such cross-examination without the client's clear consent.

Attorneys practicing in this Court are bound by the Michigan Rules of Professional Conduct (MRPC). E.D. Mich. Lr 83.20(j). MRPC 1.6 provides:

(a) `Confidence' refers to information protected by the client-lawyer privilege under applicable law, and `secret' refers to other information gained in the professional relationship that the client has *683 requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client; or
(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.[3]
In this case, Freifeld obtained "confidences" as defined by MRCP 1.6(a)
Post Wed May 17, 2017 7:58 pm 
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untanglingwebs
El Supremo

Key point from page 1



"Rose is the Employee Health Clinic Coordinator for Flint. She met with Freifeld on what he recalls to be February 4, 2000. The purpose of meeting was for Freifeld to determine whether Rose had a viable lawsuit arising out of her employment with the City of Flint. Toward that end, Rose shared information with Freifeld regarding her then supervisor, Tony Morolla. Rose informed Freifeld that Morolla told her that he would not follow up on white employees' discrimination complaints. Morolla's alleged reason was that the Flint mayor did not want Morolla to upset black employees before an election. Both of these pieces of information are relevant to Banner's lawsuit against Defendants for reverse discrimination. "
Post Wed May 17, 2017 8:02 pm 
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untanglingwebs
El Supremo

On 11-9-2000 Flint journal reporter Christopher Machniak wrote a story,"Polluted soil not moved-state", in response to concerns about University Park soil being used in demolitions.

James Innes of the DEQ had been the individual overseeing the involvement in construction of the initial 120 homes in University Park. Innes agreed with city plans to fence off a contaminated area in the vicinity of Paige and Saginaw Street, which was located in the northern half of the site.

DEQ officials stated they found no xylene in soil samples of the 15 to 20 locations around Flint. City officials used the dirt to save approximately $19,000 in demolitions. The DEQ had not received any requests to move the soil.
Post Thu Jun 01, 2017 2:19 pm 
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untanglingwebs
El Supremo

"Xylene which could contaminate ground water, is used in solvents and antiseptics. It s derived from coal tar, wood tar and petroleum. The DEQ mandated that no soil be removed from the site after discovering the xylene because it was unsure of the contamination's extent."

Allegedly the public works department officials were never notified by City officials who received the communications regarding potential danger from the DEQ. It became an issue after media reports detailed questions about environmental safety.

An October 1report showed health and environmental experts had conceerns about the high level of arsenic and the role of the City and the DEQ in allowing the homes to be built without cleaning up the arsenic tainted soil. The report detailed the potential risk to children.
Post Thu Jun 01, 2017 2:35 pm 
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untanglingwebs
El Supremo

Although the arsenic levels were nearly twice the safety standard for the state safety standard, the DEQ and the City stated the arsenic was naturally occurring and posed no helth risk. That is why the Flint City Council and the potential home buyers were never notified of the arsenic results.
Post Thu Jun 01, 2017 2:40 pm 
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