Gregory McKeithen. (Photo: John Disney/ALM)

Months before a grand jury indicted former Gwinnett County assistant solicitor Greg McKeithen, the Hall County Sheriff's Office had determined the claims against him were unfounded.

Hall County sheriff's investigators closed their investigation of McKeithen on June 10, finding that even though he and defendant Koran Corbin "were communicating" about pending misdemeanor charges against Corbin last May, "It could not be proved that Mr. McKeithen actually represented Mr. Corbin as his defense attorney."

Georgia law prohibits full-time employees of county solicitors general from engaging in the private practice of law. Part-time solicitors are allowed to have private law practices, but they may not practice in their solicitor general's state court or appear in any matter in which their solicitor has exercised jurisdiction.

But McKeithen's cellphones—which were seized during their investigation—were turned over to Gwinnett County District Attorney Danny Porter, according to the report.

A Gwinnett County grand jury handed down an indictment on Oct. 17, charging McKeithen with eight counts of computer invasion of privacy, violating his oath of office and theft. The oath of office violation and theft charges, both felonies, are based on allegations that McKeithen was on the county payroll as a full-time assistant solicitor while running his own private practice in violation of state law.

Porter said this week that the information McKeithen allegedly accessed through a state computer network was restricted to prosecutors. He said McKeithen used his position as a misdemeanor prosecutor to access information about clients that is "outside the normal scope of discovery" for criminal defense lawyers.

But McKeithen's attorney, Kirby Clements, insists that McKeithen "did not continue to practice law" after he joined the county solicitor general's staff last January.

Clements—who worked with McKeithen when both were Fulton County prosecutors—also said that claims McKeithen was hired to defend Corbin are not true.

"He never received any payment. He never engaged in the practice of law," Clements said. "He told this man he couldn't represent him."

Clements also questioned the validity of the Gwinnett indictment if the underlying investigation derived from the seizure of evidence in an unfounded case. "How nothing morphs into something I don't understand," he said. "But, none-the-less, that seems to have happened."

McKeithen, who has a law degree from Stetson College in Florida, ran unsuccessfully for Gwinnett County Superior Court in 2016. He also ran unsuccessful campaigns for county commissioner and solicitor general.

McKeithen resigned as assistant solicitor last May after Hall County began investigating him. He is currently free on bond and intends to plead not guilty at his arraignment, Clements said.

Hall County Solicitor General Stephanie Woodard said the initial designation of the Hall County case as "unfounded" may not have been appropriate. Woodard said she turned McKeithen's cellphones over to the Gwinnett County district attorney because Gwinnett was "a more appropriate venue" to investigate allegations that McKeithen was continuing to represent criminal defendants, even though he was a full-time misdemeanor prosecutor.

Woodard and Porter confirmed that Hall County authorities began investigating McKeithen after Corbin stood before a Hall County judge earlier this year and identified McKeithen as his lawyer. Woodard said the defendant informed the judge that McKeithen, who wasn't present, had told him to enter a not guilty plea.

Porter said that Corbin showed Hall County authorities text messages that he and McKeithen exchanged about his case.

Porter said his office assisted Hall investigators in drawing up the search warrant that resulted in their seizure of McKeithen's cellphones.

But Porter said he also quickly learned that McKeithen had looked up multiple defendants with pending cases—including Corbin—in a prosecution case management system. Porter said prosecutors who access the system are assigned unique passwords and have no expectation of privacy. 

Porter acknowledged that, while Corbin's case was the reason his office began its own investigation of McKeithen, he was not among the defendants whose cases McKeithen is accused of illegally accessing. "It could very well be, in the trial of the case, that the cellphones will not be used as evidence," the DA said.

Porter also said that in charging McKeithen, "We didn't want to get involved in a question of what constitutes the practice of law. … The elements of computer trespass are easier to prove."

McKeithen's indictment is the second handed down by a Gwinnett County grand jury accusing a county official of illegally accessing a private computer network.

Last month, Gwinnett Superior Court Judge Kathryn Schrader was indicted on criminal trespass charges after she allegedly gave three outside parties, including a convicted child molester currently on probation, unauthorized access to an internal court computer network. She and her three co-defendants have pleaded not guilty to the hacking charges. 

Porter recused from the case after the judge contended she hired her co-defendants to determine whether Porter had hacked her private computer files—a claim Porter has denied.