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HomeMy WebLinkAboutItem C: City Legal Services - Who's the Client? ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Work Session: Who is the City Attorney’s Client? Obtaining Second Opinions on Legal Matters Meeting Date: April 9, 2007 Agenda Item Number: C Department: City Attorney Office Staff Contact: Glenn Klein www.glenn.klein@harrang.com Contact Telephone Number: 682.5080 ISSUE STATEMENT This work session is in response to questions from the Council about two issues related to legal services. First, who is the City Attorney’s client: the City Council, City Manager, or the City as a legal entity? And second, if the council desires to obtain a second legal opinion, how should that be accomplished? BACKGROUND The council previously has held work sessions related to some aspects of the City’s legal services. The two prior work sessions most closely related to the subject of this work session are the council’s discussion of conflicts of interest and the council’s referral of a Charter amendment related to an in- house city attorney. In 1999, the council asked for a work session on how the law firm addresses conflicts of interest involving the City. At that time, the council received evaluations from two attorneys – Robert Fraser (past president of the Oregon State Bar) and Brad Tellam (a Portland attorney specializing in legal ethics) – both of whom concluded that the firm’s handling of conflicts of interest comports with the State Bar’s requirements and that the law firm was handling conflicts correctly. Mr. Tellam participated in the council’s work session on that topic. In 2002, the council referred to the voters a number of Charter amendments (following the Charter Review Committee’s review of the Charter). One of the proposed Charter amendments would have required the City Manager to appoint an in-house city attorney to serve as chief legal advisor to the City Council and the manager. That Charter amendment was not approved. Who is the Client? Some councilors have suggested that it appears that the City Manager, rather than the City Council, is the client of the law firm. As the discussion below explains, the Oregon Rules of Professional Conduct (the rules adopted by the Oregon Supreme Court that govern the conduct of attorneys) provide that the client is the municipal corporation known as the City of Eugene, rather than any one part or official of the City. Rule 1.13 of the Oregon Rules of Professional Conduct (ORPC) states: “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” It is the L:\CMO\2007 Council Agendas\M070409\S070409C.doc City, as a legal entity, rather than its officers or employees, that constitutes the client. One of the legal ethics specialists at a continuing legal education course gave the following hypothetical and answer: “QUERY: Suppose that a particular level of government – such as a county – has not only an elected board of county commissioners but also an elected assessor and an elected sheriff. Does county counsel then have three clients for conflict- The entity at issue is still the county of-interest purposes? The answer is no. and not the board members, the assessor, or the sheriff.” (Emphasis added.) More recently, another one of those specialists wrote an article for the Oregon State Bar Journal entitled “Drawing a Bright Line: The ‘Who is the Client?’ question.” In that article, the author states that Rule 1.13 “adopts the ‘entity approach’ to corporate representation: a lawyer representing a corporation is deemed to represent the corporation rather than its individual shareholders or officers.” Later in that article, the author specifically addresses governmental entities: “Under RPC 1.13(a), the entity approach applies to governmental representation and the ‘client’ is the governmental entity and not its constituent members.” The Salem city attorney, in a presentation to city officials, explained how the representation of the city itself does not mean the city attorney also represents individual employees or elected officials: “Representation of the municipal corporate entity does not mean that the attorney, as a matter of law, represents individual elected officials or public employees. In certain instances, representation of the corporate entity may include aspects of the attorney/client relationship which appear, to include representation of individual elected officials or public employees. As an example, the ABA Model Code of Professional Responsibility takes the position that when a ‘constituent’ of an organizational client communicates with the organization’s attorney in the constituent’s ‘organizational capacity,’ that communication is protected by attorney/client privilege. This representation is limited, however, to those aspects of the individual elected official and public employees which are in an ‘organizational capacity.’” The client of the law firm is the City of Eugene, not the City Manager or any other individual officer or not employee. The firm’s duty of loyalty is to the City Manager or City Council specifically, but to the municipal corporation. While the work the firm does usually is requested by the City Manager or city staff, the work also is often dictated by the council itself. Below are some examples that demonstrate this concept in practice. ?The City Council requested a work session on the concept of a givings tax. When that matter came back to the City Council, the City Manager recommended that no further action be taken. The council, however, directed that additional work be performed. We (together with city staff) performed that additional work, came back to the council, and then received additional direction from the council. Each time we came back to the council, our analysis was guided by the direction from the council, rather than what had been the City Manager’s initial recommendation to cease work. ?When the City Council raised questions more than a decade ago about the performance of a previous city manager, we worked with the City Council officers and Mayor on the process for L:\CMO\2007 Council Agendas\M070409\S070409C.doc evaluating the manager, and ultimately on the process for terminating the relationship. In that situation, the City Charter granted to the council the power to supervise, hire and fire the city manager. Our client – the City of Eugene – can only act, like any other public or private corporation - through its officials and employees. When it is the council that is acting (as in the situation just described), we work with the council, rather than the manager. Regardless of whether we are working with the City Council, City Manager or City staff, when our legal opinion is requested, our duty is to provide the most accurate opinion that we can. At times, the law is clear and we will state what the law requires. At other times, the law is not clear; in that situation, we will identify how we believe a court would rule on the matter and what we believe is the likelihood that the court will agree with our opinion. When our opinion is requested, we provide just that: our opinion. Neither City staff nor the City Manager (and, as discussed below, nor the City Council) can direct what our opinion will be. It is important to remember that attorneys have at least two very different roles in our work for clients: (1) legal advisor; and (2) legal advocate. In our role as legal advisor, our task is to inform our client of our opinion on, for example, what a law means or how to accomplish an objective in a lawful manner. In our role as advocate, our role is to persuade others (often a judge) that our client’s position is correct or that our client’s action was lawful. Thus, while a client can instruct an attorney as to a legal position to take in litigation (unless the attorney believes that such a legal position is frivolous, in which case the Rules of Professional Conduct prohibit the attorney from taking that position), when a client seeks legal advice, the attorney is supposed to render a legal opinion based on the attorney’s best professional judgment about what the law is, rather than on the client’s instruction as to what the legal opinion should be. At the December 13, 2006, City Council meeting, Councilor Bettman objected to one of the legal opinions our office issued to the council related to the police auditor’s office. Councilor Bettman stated that the city attorney memorandum (related to the potential of personal liability) was based on what the manager thought the Charter amendment meant, rather than on how the council interpreted the Charter amendment. (Councilor Bettman’s actual comments can be found in Attachment A.) Those comments appear to assume that when we issued our opinion, we were acting in our role as “advocate,” rather than in our role as “advisor.” The opinion we issued was requested by City Councilors as to the possibility of personal liability. Our duty in that situation was to give our opinion as to what we believed a court would find with respect to that question. If a court would defer to the council’s interpretation of the earlier-adopted Charter amendment, then it would have been appropriate for us to do the same; our task, after all, was to inform the council as to what we believe a court would conclude. However, a court will not defer to the council’s interpretation of the Charter, any more than a court will defer to the legislature’s interpretation of the Oregon Constitution. The question that must be answered, according to numerous decisions of no the appellate courts, is what the voters intended when they adopted the amendment. The question is t what the council (or the legislature) intended when the measure was referred, or how the council (or legislature) would like the amendment to be interpreted. If the issue had arisen under a different set of circumstances – for example, a suit against the City – our role would have been as an advocate. As an advocate, we would take positions in court consistent with the adopted City Council policy. However, we were not in court. Instead, members of the council wanted to know what their personal liability might be. In rendering our opinions, we did not consult L:\CMO\2007 Council Agendas\M070409\S070409C.doc with or get any direction from the City Manager (or any other city employee) as to what our opinion should be. In addition, we answered that question in a confidential legal memorandum, in part so that our legal arguments would not be available to members of the public who might want to use our opinion as ammunition to file a lawsuit against one or more councilors. In sum, our duty of loyalty is to the city entity, not to any particular city officer or employee. We strive at all times to give the City and its officers and employees the benefit of our considered legal judgment. The City is not well served if its legal counsel shades its opinions or sugarcoats its advice. It is important to remember that our role is to assist the City to achieve the policy objectives set by its responsible officials in ways that are lawful. No city official or employee should expect to control our legal judgment, but every city official and employee is entitled to our best effort to implement the City’s policy goals and objectives. Second opinions The second question for this work session is how the council can obtain a second opinion if the council is dissatisfied with an opinion from the City Attorney’s Office. In this situation, the council should adopt a motion directing the City Manager to obtain a second opinion. The City Manager then can request another law firm to examine the question and write an independent opinion on the issue. RELATED CITY POLICIES None. COUNCIL OPTIONS None. The purpose of this work session was to provide information and an opportunity for discussion. CITY MANAGER’S RECOMMENDATION None. This is a work session only. SUGGESTED MOTION None. This is a work session only. ATTACHMENTS A. December 13, 2006, comments by Councilor Bettman FOR MORE INFORMATION Staff Contact: Glenn Klein Telephone: 682-5080 Staff E-Mail: glenn.klein@harrang.com L:\CMO\2007 Council Agendas\M070409\S070409C.doc ATTACHMENT A Councilor Bettman’s comments during the December 13, 2006, council meeting “I wanted to bring up an issue because we have slated a work session early next year regarding the role of the city attorney and I, since the memo was brought up and discussed and you talked about it, the underlying assumption of the memo, I feel like I can address it now and I wanted to remark on the fact that the city attorney wrote a memo for the City Council based on the opinion of the city manager after City Council adopted a resolution saying, taking the charter language and saying ok City Council has ultimate authority if there is any ambiguity in the charter, the City Council’s authority is such that we can determine what that interpretation is which we did via resolution and then city attorneys went ahead and adopted an opinion based on the opposite opinion. So, if the city attorneys were representing the city, which includes city policy, then it seemed to me that the underlying assumption of that memo should have been that the Council has the authority to delegate the hiring of staff, hiring and firing of staff to the police auditor. So, I see that as a major breach. I see that as basically reinforcing my opinion that the city attorneys represent the city manager and not the city as a whole because when those interests bifurcate what the attorneys chose to do, is represent the city manager and not the city as a whole. It’s adopted city policy that the charter interpretation is that Council has that authority and you took an opposite stance and I wanted it on the record and so that when I bring it up at the process session regarding who the attorneys work for, I’ve already brought up if people say well you didn’t bring it up at the time. Well, I’ve brought it up. It’s on the record. Thank you.” L:\CMO\2007 Council Agendas\M070409\S070409C.doc