Todd Flood: Bashara attorney's conduct precarious ethical position

Published On: Jun 25 2012 10:30:30 AM EDT   Updated On: Jun 25 2012 01:15:34 PM EDT

Last week, Wayne County Circuit Court Chief Judge Tim Kenny admonished David Griem, lawyer for Bob Bashara, over investigative subpoenas Mr. Griem’s office issued in an effort to obtain certain records.

These subpoenas were issued on regular subpoena forms but said “Investigative” on them.

The fundamental problem with the subpoenas is that no criminal case exists against Mr. Bashara at this time. In addition, only county prosecuting authorities can issue investigative subpoenas; this type of subpoena can never be issued by defense lawyers in a criminal case.

Subpoenas can only be issued by defense lawyers once charges have been filed against their client or clients.  Until that happens, defense lawyers cannot issue subpoenas in a case that does not exist yet.

Upon being asked by Judge Kenny about the subpoenas, Mr. Griem apparently stated the “Investigative” subpoenas issued under the non-existent case name “People vs. Robert Bashara” were done so accidentally.  This situation raises some significant ethical questions.

At all times, lawyers are governed by rules of professional conduct which broadly outline what a lawyer can and cannot do.  In addition, those rules require lawyers and judges to report the ethical wrongdoings of other lawyers or judges, if they have personal knowledge of a violation.

In this case, Mr. Griem issuing apparent investigative subpoenas in a non-existent case, without proper justification, presents an ethical problem because it appears to fall squarely outside the bounds of ethical conduct demanded of lawyers.  And it also creates a potential obligation for the other lawyers involved tangentially in this matter, along with Judge Kenny, to have to report Mr. Griem’s conduct in this case.  Mr. Griem issuing investigative subpoenas in the case “People vs. Robert Bashara” poses a problem for at least two reasons: (1) defense lawyers cannot issue investigative subpoenas, only prosecutors can and, more importantly, (2) there are no pending charges against Mr. Bashara.  For the most part, there are always alternative routes to obtain records but issuing invalid subpoenas in a non-existent case is not one of them.

And Mr. Griem’s explanation that the subpoenas were issued inadvertently also raises ethical concerns.  Aside from whether Mr. Griem’s excuse is believable given the circumstances, an attorney is expected to ensure that everything done in his or her name is appropriate.  The subpoenas are court orders, and Mr. Griem should have either signed them himself or authorized their signing.  Either way, he should have approved them being sent out.  The failure to take due care in making sure that ethical norms are followed can be the basis for misconduct charges.

In the end, Mr. Griem’s conduct, at the very least, put each lawyer, including Judge Kenny, in a very precarious ethical position.  It remains to be seen, if, and when, one of those lawyers will report Mr. Griem's conduct to the Attorney Grievance Commission.

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