Michigan Rule of Professional Conduct 1.6 states that “a lawyer shall not knowingly . . . reveal a confidence or secret of a client.” Confidences are things that you discuss with your attorney and that are related to the representation. Secrets are everything else that you tell your attorney and that you do not want other people to know. Confidences and secrets are privileged, if they are spoken between your attorney and you without anyone else being present. No one can make your attorney or you reveal a confidence or a secrete.

When you know that your attorney will not reveal your private information, you are free to tell your attorney everything. You do not have to worry about what other people might think or that someone might use your personal information against you. You can have confidence in your attorney’s advice, because you can fully inform your attorney of your situation.

Confidentiality protects you from your attorney, too. Your attorney cannot use your information against you or for her or his own benefit.

Of course, there are limits to confidentiality. You can limit it. You can permit your attorney to reveal things that you discussed in private. You should give your permission only after your attorney has fully instructed you about what will be revealed, to whom it will be revealed, and for what purpose it will be revealed.

Also, confidentiality is limited by legality. If your attorney becomes aware that you intend to do something illegal, your attorney can reveal that. And if you misuse your attorney’s advice and do something illegal, your attorney can reveal how you misused the advice.

Lastly, your attorney can reveal confidential information to defend against accusations of wrongdoing and to collect fees.

In the courtroom, the attorney-client privilege protects your attorney and you from having to reveal what you said to each other. But only your attorney’s integrity protects you everywhere else. I am committed to confidentiality.

I received some positive feedback, some negative feedback, and a number of questions about the case. Here are my answers to the negative comments and the questions.

Was that a technicality? No. Direct endangerment of the safety of another person or of property is an element of the crime of Creating a Public Disturbance. An element of a crime is one of the things that the prosecution must prove to convict a defendant. Nothing could be more elemental than an element. Nothing could be less technical than an element. (Not that I have anything against winning on a technicality, by the way.)

Didn’t I have an obligation to present the Prosecutor with the additional element earlier than the middle of trial? No. It is the Prosecutor’s job to know the law. I did not trick him. We all have access to the same statutes and cases. The prosecutor should not have charged my client with a crime that he did not commit.

Don’t I feel bad about wasting the Court’s time and juror’s time by having a jury trial on a charge that should have been thrown out beforehand? No. First, it was not my choice. I have no problem complying with my clients’ wishes to exercise their Constitutional Right to a trial.

Second, my client had no incentive to not go to trial. The only thing the Prosecutor offered my client by way of deal was that he would not charge my client with the two-year felony of Resisting and Obstructing a police officer. In other words, the Prosecutor offered my client nothing. So there was little incentive to not try the case. (The Prosecutor had as much evidence of R & O as he had of Creating a Disturbance. I would have won that case the same as this one.)

Third, I trust the Prosecutor and police officers to try to get convictions. Sometimes, a conviction comes at the cost of the truth. What do you think would have happened, if I had told the Prosecutor that he needed to prove that my client physically endangered someone to get a conviction? Do you think that the officers would have “remembered” that my client physically endangered them? My client did not want to find out.

Fourth, double jeopardy attaches when the jury is sworn in. At the moment the jury was sworn in, the prosecution was locked in to the charge of Creating a Public Disturbance. The prosecution could not later charge my client with another similar crime. So all we had to do was win this one case, and my client was in the clear.

Why was the Prosecutor so mad? In case you couldn’t guess from last week’s post, the Prosecutor was extremely angry with me. He said that I was practicing “bullshit law”; and I’d better change my ways, if I was going to keep practicing in that jurisdiction; and all the rest of it. I assume that the prosecutor was embarrassed. Creating a Public Disturbance seemed like the easiest charge in the world to prove. Also, the Prosecutor had no warning at all. I dropped Gagnon, the case with the additional element, like a brick. Also, because jeopardy had attached, the Prosecutor had lost his opportunity to change the charge to something he could have won. Lastly, it seems like the Prosecutor must have thought that things would have gone differently than they went, had he known about the additional element. But the only way things could have gone differently is if the witnesses would have testified differently than they did. But the witnesses told the truth. Didn’t they? . . .

Was my guy guilty of something? Who cares. He was a fifty-year-old ex-Marine who was drunk as a skunk, yelling at the police, demonstrating martial arts techniques, and crying about his girlfriend. No one took him—a Marine—seriously enough to think that he presented a physical threat to them, despite his threats to the contrary. Alcohol had made him a shadow of himself. A paper tiger. Cut the guy some slack.

Therefore, my answer to the question, “Are you Disturbed?” is, “No. I am proud.”

The Prosecutor presented the following facts at trial. Two police officers testified that, for about fifteen minutes at 2:00 in the morning, my client was drunk and yelling profanities outside of a bar. The officers stated that they were on the defensive the entire time. Yet, they had mercy on my client and sent him to the hotel at which he was staying, which was located across a large parking lot.

Fifteen minutes later, one of the hotel managers called the officers to the hotel lobby. Both on-duty hotel managers testified that, the entire time my client was in the lobby, he yelled, cursed, and disturbed hotel guests. Apparently, my client had also threatened to beat up the officers, if he saw them again. Lastly, my client had punched one of the managers in the throat.

The officers and the managers testified that my client would not submit to arrest. Instead, he defiantly stood still. So one of the officers pulled out his Taser and trained the aiming laser on my client’s stomach. Only then did my client submit to arrest.

After presenting those facts, the Prosecutor rested his case. Then, I motioned for a directed verdict. That means that I asked the Judge to dismiss the case, because there was no evidence to support the charge of Creating a Public Disturbance. The Judge granted my motion and dismissed the case.

The reason the Judge granted my motion is the Prosecutor did not present evidence proving a fourth part (or element) of the crime. You see, it is not enough to show that someone (1) created a disturbance while (2) being intoxicated (3) in public. According to the case of Michigan v. Gagnon, 129 Mich.App. 678, 341 NW2d 867 (1983), the Prosecutor also had to show that my client (4) “directly endangered the safety of another person or of property.”

I knew about the fourth element all along. The Prosecutor did not.

Here are the additional facts that I brought out to show that my client directly endangered neither property nor someone’s safety. The officers and the managers testified that my client did not destroy or even use any property.

But what about the fact that the officers were on the defensive outside of the bar? The officers testified that, while on duty, they are always on the defensive during every interaction with individuals. Implication: there was nothing about my client’s actions or attitude that caused them to be especially concerned about their physical wellbeing.

What about the punch to the throat? The manager who had been “punched” in the throat admitted that he acquiesced to my client’s demonstration of a defensive fighting technique, which my client had learned when he was a Marine, so that the manager would know how to defend himself in a fight. Implication: the manager was so unafraid of my client that he allowed my client to touch his throat.

What about the fact that the managers called the police on my client? The male manager testified that he remained in the lobby in close proximity to my client for the entire time my client was there. The female manager testified that she returned to the lobby and close proximity to my client after she called the police. Further testimony revealed that she had waited ten minutes to call the police. Both managers testified that they were free to leave my client’s presence at any time. Implication: the managers did not seek cover from my client, because they were not afraid of him.

What about my client’s numerous and bellicose threats of violence toward the police? First of all, the witnesses testified that the threats were directed at the police alone and no one else. Implication: no one else had a reason to be concerned.

Second, my client did not follow through on the threats. He was making the threats the entire time—from when he was outside of the bar to when the police arrived at the hotel. Every witness testified that my client never make any aggressive movements toward anyone or anything, including themselves. He simply stood still when the police approached him to arrest him. Implication: his threats were not credible.

Third, every witness testified that my client was highly intoxicated. Implication: he was not capable of carrying out his threats or of harming anyone—except perhaps himself.

Lastly, the witnesses testified that, interspersed between numerous threats were reminiscences of my client’s service in the Marine Corps, sobs about my client’s failing relationship with his girlfriend, and demonstrations of martial arts techniques which were meant to ensure the safety of the audience. Implication: the threats were as serious as his stories, sobbing, and demonstrations.

Therefore, despite the fact that the officers said that my client acted aggressively toward them and the managers said that he made them uncomfortable, the evidence showed that they did not believe that he directly, physically endangered them. Verbal abuse and threats—while uncomfortable—do not necessarily portend physical violence. That is why, after hearing the testimony, the judge dismissed the case.

A WORD OF CAUTION! To all of you who want to go out and get rowdy, because you think that you are immune from prosecution as long as you do not directly physically endanger anyone or anything, think again. There are numerous crimes with which you could be charged other than the crime of Creating a Public Disturbance, such as Disturbing the Peace or Loitering. The Gagnon case is correct to require more than a mere public disturbance, because the term “public disturbance” does not mean anything in itself and, thus, it means anything could be a public disturbance. But Gagnon applies only to this particular charge (MCL 750.167(e)), not to every open-ended charge out there. There might be other cases like Gagnon, correctly limiting those other charges. But there might not. Do not find out the hard way.

My office is accessible to many local communities and courts.  I am just down the road from Comstock Park and Northview.  I am just north of East Grand Rapids and northwest of Forest Hills.  I am about twenty minutes from the courthouses in Grandville and Walker, which comprise the 59^th District Court.  I am about fifteen minutes away from downtown Grand Rapids and the 61^st District Court and the 17^th Circuit Court.  The 62-A District Court, which services Wyoming, is fifteen minutes away.  I am about twenty-five minutes from the Kentwood District Court, 62-B.  I am about one mile away from the 63^rd District Court, which is located at Knapp Street and the East Beltline.

My location saves you money.  You do not have to drive far to see me.  I do not have to drive far to see you or get to court.  Lastly, there are no parking fees here, like they have in downtown Grand Rapids.  So it doesn’t cost you anything to stop by.

Accessibility and affordability. … My location is not a bad metaphor for my firm.

Nathaniel J. Kaleefey (P72186)