Legal Corner: Using your Municipal Attorney Effectively
By: William Bock, General Counsel, League of Arizona Cities and Towns
July 2013
Every city and town in Arizona has either a city or town attorney. Sometimes, the attorney is a contracted attorney in private practice.
In other cities or towns, there is an in-house attorney who is likely working under a contract with the city or town council.
In some of the larger cities, there is a city attorney, and a staff of assistant city attorneys. There are no statutory duties set forth
for municipal attorneys. It is possible that your city charter, or your city or town ordinances may have the duties and responsibilities
of your attorney spelled out.
But in general, your municipal attorney has been hired to meet the legal needs of the city or town. Those needs typically include giving
legal advice to the governing body and other boards and commissions; drafting ordinances and resolutions, deeds, contracts and other legal
documents; representing the municipality in legal proceedings and litigation; attend governing body meetings.
There are ways that you can use your municipal attorney to get the maximum benefit from their legal advice and expertise. In all of my
years of representing municipal governments, I would say the number one most helpful practice would be to involve your attorney early
in any project or issue. That will allow your attorney to guide you on a proper legal path, and avoid getting into legal trouble.
Even though it was in a large law office, and may not be possible in smaller cities and towns with only one attorney, I encouraged all
of the attorneys working for me at the city of Phoenix to invite themselves to the management staff meetings in the department or
departments that each attorney represented. That way the attorney could sit and listen, like a fly on the wall, to what the department
was working on. Even if the attorney came just to listen, usually, since the attorney was already at the meeting, people would ask
questions. That interaction allowed the attorney to provide guidance very early in the game, and perhaps eliminate trouble later on.
Following is an article, written by Claire M. Silverman, the legal counsel for the Wisconsin League of Municipalities. She has graciously
allowed me to reprint this article here. It sets forth many tips for using your municipal attorney effectively.
October 2012 Article
Tips For Using Your Attorney More Effectively
The following list is not intended to be exhaustive but, rather, is a starting point for using your municipal attorney effectively.
1. Remember that you and the municipal attorney are on the same team.
The municipal attorney should not be viewed as an obstructionist. It is the municipal attorney's job to protect the municipality by identifying
potential legal problems and to assist the municipality so that it exercises its powers in a lawful manner. If you have specific goals, clearly
communicate those goals to the attorney. It may be that the goal itself is unlawful. In that case, it is better to know that in advance in order
to protect the municipality from liability. However, most often the end goal is legitimate and there are a variety of ways to achieve the desired
result. The means of achieving the goal are less important than reaching the desired result, but using the wrong means can have significant legal
consequences. Consult with the municipal attorney and allow the attorney to identify the various legal ways to achieve the desired result and
the benefits and pitfalls of taking a particular route. Be open to the attorney's suggestions.
2. Remember who the client is.
Municipal officials should bear in mind that the municipal attorney's client is the municipality, acting through its governing body, and not
the individual officers or employees. Because the municipality is the client and it is often unclear who can speak or act on behalf of the
municipality, it can be helpful for both the attorney and municipal officials if the governing body develops clear guidelines regarding who
can contact the municipal attorney and under what circumstances it is appropriate to do so. Individual officers and employees must understand
that they themselves are not the attorney's client and that the municipal attorney may not be able to keep everything told to the attorney
confidential. Moreover, officials and employees should not attempt or expect to persuade the municipal attorney to act in a manner that is
inconsistent with the attorney's obligation to the client, the municipality.
3. Involve your municipal attorney early.
When a municipality does not have in-house counsel, local officials are sometimes reluctant to call the municipal attorney because it costs
money. Although the cost of legal services is a valid concern and it's unnecessary to call the municipal attorney for every little thing, the
best advice is don't be penny-wise and pound-foolish. There are many times when an early request for legal assistance can save money and
unnecessary headaches down the road.
Consult the municipal attorney whenever the municipality or its officers and employees are the subject of or receive legal documents such
as complaints or subpoenas. Legal advice is also warranted whenever municipalities must follow specific statutory procedures in order to
exercise certain powers - e.g., annexation of property, creating tax increment finance districts, imposing special assessments and impact
fees, razing of buildings, zoning and platting matters, revocation of licenses. It's also wise to consult the attorney when failure to
take adequate steps to protect the municipality can result in significant expense for the municipality. For example, in matters relating
to development, failure to secure the necessary protections can leave a municipality responsible for making substantial and expensive
improvements, completing unfinished work or redoing shoddy work.
Finally, it's also a good idea to seek legal advice whenever the municipality will be bound by contracts or other negotiations. With
regard to significant contracts or negotiations, it's important to involve the attorney early, before all the details have been worked
out. Once a deal is ready to be concluded, it gains a momentum of its own and it is very difficult for an attorney who is brought in
towards the end of the deal to have meaningful input. Furthermore, when an attorney is brought in late and then spots a number of legal
issues and potential problems, it is much more expensive to address the problems and remedy them. Moreover, if the potential problems
are not addressed and later become actual problems or lead to litigation, legal assistance becomes truly expensive.
4. Prepare before speaking or meeting with your municipal attorney.
Just as a good lawyer should prepare to meet with a client, a client can and should spend time preparing to meet with an attorney.
Doing your homework before meeting with the attorney will give the municipality the best value for the money it spends on legal services.
The attorney often comes into a situation knowing very little about it. Take time, before meeting with the attorney, to identify and
document the pertinent facts, and to identify what you think the important issues and concerns are. Understand what the municipality's
objectives are and be prepared to explain them to the attorney.
5. Be very clear regarding expectations.
Have a clear idea regarding the importance of the matter and convey those expectations to the attorney. Think about the role you expect
the municipal attorney to play. Should the attorney write a formal opinion letter laying out the relevant facts and explaining the various
options? Should the attorney draft certain legal documents? Is the matter a minor one where the attorney is being used primarily as a
sounding board? Make sure the attorney understands the priority of the matter - low, intermediate or high - and that you explain what
the municipality's time frame is regarding the matter and when the answer or work product is needed.
6. Plan ahead for legal services.
Give the attorney adequate time to research issues and answer questions. Don't demand an immediate response from the municipal attorney
at a meeting. Municipal law is not a compact, well-defined body of law. Rather, municipal law includes a vast number of areas such as
annexation, contracts, employment law, powers of governmental bodies, platting, zoning, open meeting and public record laws, public
utilities (just to mention a few). Provisions relating to municipal law are complex and are sprinkled throughout the statutes, both
federal and state, and in administrative regulations. On top of that, there is often case law where the courts have interpreted these
provisions. The municipal attorney should not be expected to have all the various provisions memorized or to shoot from the hip.
7. Provide the attorney with the necessary resources to do the job requested or clearly limit the scope of the job.
Don't ask your attorney to do a quick review of complex documents or just "look things over." If a review is to be meaningful, it is
necessary to allow the attorney to take the time and measures necessary to do the job. The municipal attorney can commit malpractice by
doing an inadequate job. Therefore, it is only fair to give the attorney some express indication if the attorney's review is intended to
be limited in its scope.
8. Be candid with your municipal attorney
Disclose all the pertinent facts and don't be selective. Although being selective in what you tell the municipal attorney may get you
the answer you want, it may have significant consequences for the municipality later. With careful thought and planning, a good attorney
can deal with bad facts. However, it is very difficult for an attorney to deal with damaging facts when the attorney is blindsided later
in the process. In all likelihood, damaging or unfavorable facts will eventually be revealed, so be candid with your municipal attorney
and make sure the attorney is aware of all relevant facts so he or she can figure out how they weigh in the equation and deal with them
accordingly.
9. Understand that your municipal attorney cannot always give a concrete answer.
Contrary to popular opinion, attorneys do not like to waffle. Attorneys like to be able to advise their clients with certainty but
quite often the law does not provide a clear-cut answer to a legal question. Although your municipal attorney should be able to analyze
the law in a given area and make an educated prediction regarding the likely outcome, there are times when the attorney will not feel
comfortable making a prediction because it is too close for the attorney to call. In those situations, it is reasonable for the attorney
to explain the relevant law and why the question is too close to call. The attorney should also explain the consequences given several
different outcomes.
10. Remember that lawyers are legal advisors, not policy makers.
The municipal attorney is a legal advisor and it is the attorney's job to help the municipality see what the options are and what the
benefits and disadvantages might be of proceeding in a given way. The municipal attorney should not be pulled into politics and should
be allowed to maintain independence and objectivity so that the attorney can give the correct legal answer rather than the desired
legal answer. Once the legislative body has decided which way to proceed, the municipal attorney can then implement the plan and make
sure the municipality carries out its powers lawfully.
Conclusion
The municipal attorney is a valuable part of any municipal team and, when used effectively, can do a lot to help the municipality
carry out its responsibilities and lawfully achieve its goals while at the same time protecting the municipality and its officers and
employees from significant liability.
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