UM blasted for hiring firm to investigate doctor scandal without waiving privilege
By Kim Kozlowski
March 28, 2020
|Dr. Robert E. Anderson|
Photo by Robert Kalmbach
The University of Michigan says it will issue a "non-privileged report" from a new law firm it has engaged to investigate claims of sexual abuse regarding the late Dr. Robert E. Anderson — a move that produced pushback from advocates for the late doctor's accusers.
The investigation will be conducted by WilmerHale under attorney-client privilege to protect the confidentiality of all sexual misconduct survivors and witnesses, the university said, but the findings will be released to the public and the university at the same time.
Regent Ron Weiser — the board chair who recently came forward with his story of abuse by Anderson — said during a phone interview that the attorneys working on the investigation are top-notch, trained investigators and will be reporting to the regents, who work for the public, not administrators who work for the school.
He emphasized that the report that will be prepared for the public will not include names of those who come forward, since not everyone wants to be public about a sexual abuse claim.
Weiser said the report will be released to the public at the same time as the regents get it, and that the board will not see it before the public.
"This is the most transparent report anybody is going to have," he said. "No one is going to have any influence over what it says."
But UM's decision stunned many who are advocating for alleged victims of Anderson, who served as the head of University Health Service and the team physician for the Athletic Department from 1968-2003. He died in 2008.
"The 'investigation' will cost UM millions and prove what we already know: that for three decades, UM's leadership let a known sexual predator prey on its (students)," said former Attorney General Mike Cox, who has filed two dozen lawsuits against the university and Board of Regents.
Cox asked if WilmerHale will "really focus on the corrupt leadership" at UM that allegedly allowed this to happen including past university presidents who "knew about Anderson's preying on hundreds of young men for the past year and only reacted when the press broke the story."
"The focus should be on making the victims as whole as possible, not on self-serving and conflicted investigations that attempt to 'prove' that UM really cares about the victims here," said Cox.
UM President Mark Schlissel said in a statement that the university would “provide a safe and secure environment for survivors to share their stories … and continue to provide resources to support the survivors who bravely share their truth.”
Other advocates of the nearly 300 alleged victims of Anderson said they wanted the university to waive privilege.
"Privilege doesn't protect victims, it protects institutions," said Sarah Klein, an attorney representing dozens of Anderson's accusers, sexual assault advocate and one of the earliest victim of the now-incarcerated sex abuser Larry Nassar. "Hiring yet another law firm sends the message that the university would rather investigate themselves behind closed doors. That is not transparency."
California-based attorney John Manly — whose firm is working with Klein and other lawyers representing more than 100 of Anderson's alleged victims — wondered if UM has more to hide about Anderson than it wants the public to know.
"The way to distinguish yourself and not go down this road is transparency," said Manly, of Manly, Stewart and Finaldi. "They are choosing the wrong road. They are choosing the road of litigation and concealment and self-protection What (they) should do is come clean, immediately get it out, don’t hide it. You can't have it both ways — you can’t have privilege and have transparency."
Colorado-based lawyer Parker Stinar, who represents more than 70 alleged victims of Anderson, added that an investigation under attorney-client privilege to protect the confidentiality of sexual misconduct victims and witnesses is "very deceiving to survivors."
"Once again, the University of Michigan is denying students, alumni and the public with transparency," said Stinar, of Denver Trial Lawyers.
But Weiser said an investigation can be conducted under attorney-client privilege to protect victims and still produce a transparent report.
"There is going to be complete transparency on this, and as a victim I can tell you that will happen," he said.
UM recently severed ties with Steptoe and Johnson, the firm it initially hired to conduct the Anderson investigation, because the firm had defended two prominent men accused of sexual abuse, the late financier Jeffrey Epstein and film director Roman Polanski.
WilmerHale is the samefirm that has been investigating sexual misconduct allegations against former UM Provost Martin Philbert, who recently was removed from his post.
The firm willalsoinvestigateallegations against Anderson.
A March 21 letter of engagement between UM and WIlmerHale showed that the university’s general counsel will serve as the firm's point of contact to obtain information to complete the investigation.
"We will issue a non-privileged public report about the results of our independent investigation of the matter in a manner that protects the anonymity and privacy of complainants and witnesses," the letter said. "The university and the firm will endeavor to protect the identity and confidentiality of complainants and witnesses in the matter to the greatest extent permitted by law."
In the event that the firm is denied access to information, it will highlight that in the report, the letter said. The firm also will not defend any potential claims that are related to the allegations about Anderson.
In a release announcing the decision, UM said it selected the firm to do both investigations because the attorneys with WIlmerHale have a deep understanding of relevant university policies and procedures.
"In addition, although each matter is entirely separate and distinct, the matters may present certain common questions about university policies and procedures," the release said.
Overseeing UM's investigations will be WilmerHale partners Aaron Zebley and Danielle Conley, who work out of the firm’s Washington, D.C., office.
Zebley is a former federal prosecutor and 18-year FBI agent focusing on investigations and national security matters. Before rejoining WilmerHale in 2019, Zebley served as the deputy special counsel under Robert Mueller for the duration of the special counsel office’s investigation of Russian government efforts to interfere in the 2016 U.S. presidential election.
Meanwhile, Conley focuses on high-stakes investigations and litigation involving the federal government, as well as other legal challenges spanning law, government policy and business. She also regularly conducts internal investigations involving allegations of sexual misconduct for companies and organizations.
UM has set up separate hotlines for each investigation: For Anderson, a line that is staffed Monday through Friday, 7 a.m.-5 p.m., 855-336-5900. For Philbert, callers can reach out to a line that is the university's Compliance Hotline and staffed 24/7, 866-990-0111.
UM Regent Denise Ilitch said the university is fully committed to allowing WilmerHale to conduct vigorous and independent investigations of the Anderson and Philbert cases.
Anderson's alleged behavior emerged when Robert Julian Stone, a Palm Springs, California, man shared his story last month with The Detroit News. Stone said he came forward partly because he learned others had filed similar claims with the university, a UM investigation was underway and he feared the allegations against Anderson would be covered up.
Scores of men have come forward and accused Anderson of sexual assault during medical treatment by retaining and speaking through lawyers. Some have also told their allegations through nearly two dozen lawsuits that have been filed
The university set up a hotline that has garnered more than 100 calls from Anderson's alleged victims; more recent numbers were not immediately available.
Attorney Mick Grewal, who represents more than 100 alleged victims of Anderson that include NFL football players, a few women, pilots and UM athletes who were hockey players, wrestlers and divers, said he is cautiously optimistic about the arrangement.
He said that WilmerHale is not truly independent because it was hired by the university and its allegiance is to UM, not the public. An investigation by the Michigan Attorney General's office would be independent because it is accountable to the public, he said.
"The fear is the investigation is going to turn into what happened at Michigan State," said Grewal.
While some alleged victims, including those abused by former MSU doctor Nassar, called on the AG Dana Nessel's office to investigate UM, Nessel said she couldn't unless the university waived privilege.
Those who called on UM to waive privilege cited MSU, which is withholding 6,000 documents from the attorney general's investigation of how Nassar was able to sexually assault hundreds of young female athletes under the guise of medicine over more than two decades. Critics of MSU's claim of attorney-client privilege say it will prevent investigators and the public from ever learning the full truth about Nassar's crimes and how he was able to commit them for so long.