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Holden v. Police Board of the City of Chicago

August 02, 2001


The opinion of the court was delivered by: Justice South


Appeal from the Circuit Court of Cook County. The Honorable Stephen A. Schiller, Judge Presiding

On July 19, 1982, plaintiff became a member of the Chicago police department as a police officer, and a detective approximately eight years later. While employed by the police department, plaintiff attended and graduated from law school. After passing the bar exam in 1991, plaintiff opened a private practice. Plaintiff met Alderman Jesse Evans (Evans) after he began practicing law and eventually became Evans' family attorney, handling various family matters for him.

On January 5, 1996, while at the hospital witnessing the birth of his child, plaintiff saw a television newscast concerning Evans' possible involvement in the Operation Silver Shovel corruption probe. He immediately telephoned Evans to inquire about the investigation. Plaintiff spoke with Evans' wife, who informed him that Evans was not home. Plaintiff told her that if there was anything he could do to help, she should let him know. On January 6, 1996, plaintiff visited Evans' home and spoke with him regarding the investigation.

On January 8, 1996, plaintiff arranged a meeting between Evans and three prospective attorneys - Michael Koch, Michael Monico, and retired judge George Leighton - to assess their abilities and experience for possible representation of Evans. Plaintiff was present at each of these meetings to assist Evans and also sought advice on whether there would be any conflict of interest should he chose to represent Evans in any future matters concerning the federal government's investigation. Plaintiff also contacted Lieutenant Matula of the Chicago police department and an attorney from the city's attorney's office concerning possible conflicts of interest. Both Matula and the attorney told plaintiff that he should investigate the matter himself. After these meetings Evans decided to retain Monico as his attorney.

On August 10, 1998, the superintendent of police filed charges of misconduct against plaintiff with the Police Board of the City of Chicago (the Board) for allegedly failing to notify the department of information he received from Evans regarding his illegal activities, for proffering incredible testimony in the United States District Court, for failing to answer questions asked by Sergeant Karen Rowan during an interview in December 1997, and for failing to cooperate with Federal Bureau of Investigations (FBI) Agent Joseph Karmik's investigation. The charges were for violation of Rules 2, 3, 6 and 21 of the police department. *fn1 The superintendent requested that the Board discharge plaintiff from his duties with the police department as a result of these violations.

The hearings for plaintiff's discharge were held on February 17 and 18, 1999. Koch, Sergeant Rowan and Agent Karmik testified on behalf of the superintendent against plaintiff.

Koch testified that he received a telephone call from plaintiff prior to January 8, 1996, requesting that he meet with plaintiff and Evans. He testified that plaintiff asked him if he was familiar with Operation Silver Shovel and that he had a close friend who was going to be indicted and wanted to speak with him concerning this issue. During the January 8 meeting plaintiff, according to Koch, was very comforting toward Evans and Evans wanted plaintiff to remain with him during this meeting because he seemed very emotionally distraught. Koch testified that it was his opinion that no attorney-client relationship existed between plaintiff and Evans due to his presence in the room. Koch stated that plaintiff told him that he was present at the interview as a friend and that he might be a potential character witness.

Koch further testified that in this meeting and in plaintiff's presence Evans admitted to taking illegal bribes. Evans informed Koch generally of his meeting with the FBI, and they discussed a videotape the FBI possessed of Evans taking bribes. Koch discussed the federal sentencing guidelines with Evans and possible variations of sentencing that could be imposed on him. Evans then requested that Koch meet with David Rosenbloom from the United States Attorney's office concerning a possible plea bargain.

Koch testified that while Evans and plaintiff were still in his office, he called Rosenbloom and set up a meeting to discuss a possible plea. Rosenbloom informed him of the conversation he had with Evans.

Koch took one page of notes during this meeting, which was considered by the Board. It included notations regarding the attorney-client privilege, a possible plea bargain and sentencing categories. The Board also considered a letter from Koch to an assistant United States Attorney, dated November 22, 1996, which stated that he had met with Evans and plaintiff, that he informed them that any assertion of privilege might have been waived due to the presence of a third party, and that Evans acknowledged that the conversation was not privileged and requested that plaintiff remain in the room. In the letter, Koch declined to discuss the contents of the meeting and refused to produce his notes due to the possibility that the attorney-client privilege might be asserted.

Several hours after plaintiff and Evans left Koch's office, plaintiff called Koch and told him that they had chosen another attorney to represent Evans. Koch later testified against Evans on behalf of the federal government.

Agent Karmik testified that he conducted an interview of plaintiff on November 1, 1996. During that interview, Agent Karmik stated that plaintiff informed him that he was not representing Evans in an attorney-client capacity and had never represented him due to a possible conflict of interest. Agent Karmik stated that when he questioned plaintiff about the substance of his conversations with Evans, plaintiff refused on five different occasions to divulge this information based upon attorney-client privilege. Agent Karmik testified to plaintiff's unwillingness to disclose what Evans had told him during their meeting, citing attorney-client privilege. Agent Karmik also testified that plaintiff stated that Evans never admitted to him that he had taken any bribes or committed any crime of any type. Agent Karmik further testified that the content of the conversations between plaintiff and Evans was necessary for the government's investigations.

In December 1997 and February 1998, Sergeant Rowan of the Internal Affairs Division of the Chicago police department testified that she questioned plaintiff regarding his involvement in the Silver Shovel investigation with Evans. Sergeant Rowan sought to determine whether plaintiff had obtained any information concerning Evans' wrongdoings in derogation of his duties to the police department. When Sergeant Rowan asked plaintiff questions regarding any possible admissions Evans ...

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