Owczarski, Jim From: Owczarski, Jim Sent: Tuesday, December 17, 2019 5:53 PM To: Langley, Grant Cc: Bergner, Laura; Horwitz, Miriam; Smokowicz, Jan; Stephens, Adam; Schanning. Mary Subject: Inquiry from Ald. Donovan Good Evening, The below inquiry is transmitted on behalf of Aid. Donovan: You may already be aware of the allegations made by the Milwaukee Police Association in a press release earlier today relating to the Chair of the Board of Fire and Police Commissioners. To repeat them here, in part: On August 14, 2019, Attorney Steven De Vougas, a current member of the FPC, represented Kalan R. Haywood in a criminal investigative interview at the Milwaukee Police Department (MPD). Haywood was interviewed by an MPD detective as a suspect in a sexual assault complaint. Attorney De Vougas CANNOT represent anybody in a criminal matter when the investigating agency is the same agency he oversees as a commissioner. This is a violation of the State Bar?s ethics as well as a violation of FPC rules. How can the MPD detective, or any supervisor overseeing that investigation, not feel intimidated by De Vougas when he literally has the power/in?uence to discipline them, including termination? Mr. Devougas is an attorney and knows the rules, yet failed to follow them, causing a significant appearance of impropriety, to say the least. If and I must stress if the facts as presented are true, would this constitute a breach of either the Rules of Professional Conduct for Attorneys or the rules governing the Board of Fire and Police Commissioners? If the answer is ?yes? in either instance, what is the appropriate remedy? Given the Commission?s present role in deciding whether to grant Chief Morales a new term, this is a matter of some urgency. Your prompt attention to this matter is very much appreciated. Should you have any questions of me, please do not hesitate to contact my office. Sincerely, Ald. Robert G. Donovan 8th District 800 City Hall, 200 E. Wells St, Milwaukee, WI 53202, Telephone 414-286-2601, Fax 414486?8550 MEMORANDUM TO: ROBERT G. DONOVAN, District 8 Alderman FROM: PATRICK MCCLAIN, Assistant City Attorney DATE: January 6, 2020 RE: Question Regarding Possible Rule Violations by Steven DeVougas This memorandum is provided in response to your December 18, 2019 inquiry regarding several recent allegations against the Chairman of the Milwaukee Fire and Police Commission Steven DeVougas. You have asked this of?ce to examine whether Mr. DeVougas?who is an attorney?mviolated either the Wisconsin Rules of Professional Conduct for Attorneys or the FPC Rules when he represented Kaylan R. Haywood during a Milwaukee Police Department criminal interview. Looking ?rst at the FPC Rules, the answer is clearly in the negative. The FPC Rules do not address commissioner con?icts of interest, nor do they contain standards of conduct for commissioners. In short, there is no FPC Rule of which we are aware that Mr. DeVougas could have violated. Turning next to the Wisconsin Rules of Professional Conduct for Attorneys, the most pertinent guidance on this matter comes in the form of a 1977 formal opinion of the Wisconsin State Bar Ethics Committee?opinion E?77?l 1. While these opinions are not binding ethical rulings, they are generally considered authoritative guidance of considerable weight. in sum, opinion E-77-11 concluded that ?an attorney member of a municipal police and ?re commission may not ethically represent criminal or traf?c defendants when the police whom he oversees as a commission member are involved in the prosecution or investigation.? Ald. Robert Donovan January 6, 2020 Page 2 While this analysis suggests that Mr. DeVougas?s actions may have violated the Rules of Professional Conduct for Attorneys, because the ethical canons relied upon by the opinion have undergone signi?cant revisions since 1977, we cannot say with absolute certainty that the same conclusion would apply to the present circumstances. Further complicating the issue is Mr. DeVougas?s claim to have recused himself from representing Mr. Haywood shortly after the MPD investigative interview. If true, this fact would likely mitigate the severity of, and possibly affect the liability for any such Violation. Because analysis of these matters requires the weighing of ethical considerations rather than a straightforward application of law, any de?nitive resolution of these ambiguities would necessarily have to come from the Wisconsin Of?ce of Lawyer Regulation. Should you have any further questions or concerns, please do not hesitate to contact our of?ce. Thank you. C: Grant F. Langley, City Attorney Miriam Horwitz, Deputy City Attorney