AZ League Connection

The League's Monthly Online Newsletter

Issue 177: January 2018

Legal Corner: How to Effectively Utilize Your City or Town Attorney

At the League's 2017 Annual Conference, one of the seminars focused on the effective use of your city or town attorney. This article will recap some of that discussion and respond to frequently asked questions about the role of a municipal attorney, and how to create an effective working relationship.

Attorney Qualifications
In Arizona, attorneys are licensed to practice law by the Arizona Supreme Court, and attorney regulation and discipline are overseen by the State Bar of Arizona. Each year, attorneys are required to receive a minimum of fifteen hours of continuing legal education, including three hours of ethics training.

Additionally, attorneys are bound by the Rules of Professional Conduct, which governs attorney-client interactions such as conflicts of interest, confidentiality, and fiduciary responsibilities. Several of the rules focus on an attorney's duty to their client. In the criminal realm, it may be simple to determine who the attorney represents depending on whether the attorney is a prosecutor or is acting as defense counsel. But what happens when your client is a government entity?

Who Does Your Municipal Attorney Represent?
This may seem like a straightforward question, but it is not always clear to council members or the general public. The attorney acts as the legal counsel to the council and municipal departments, and does not directly represent individual council members. This distinction may not lead to frequent problems, but there are times when a particular situation becomes difficult to navigate.

An example is when a council member is trying to determine if he or she has a conflict of interest that requires disclosure and recusal on an upcoming vote. The attorney may provide general information to the council member about the conflict of interest law, but the attorney cannot provide direct legal guidance to that council member on whether he or she has a conflict of interest. In order to acquire specific legal advice about how to proceed, the council member must seek independent legal counsel because the municipal attorney represents the interests of the city or town as a whole and is not the personal attorney for that council member. The attorney cannot advocate for the individual council member's interest and the city or town's position without creating a conflict of interest. In these circumstances the attorney may direct a council member to seek independent advice, which can be frustrating to the member who may not have the resources to solicit independent counsel. However, the attorney is acting within the bounds of the ethical rules and likely, the city or town charter or code.

Working Effectively With Your Attorney
Understanding Your Attorney's Duties
Municipal attorneys have significant responsibilities. In addition to managing the law department, the attorney provides legal advice to the council, manager, directors and other municipal departments; prepares legal opinions; drafts and reviews contracts, ordinances, resolutions and other legal documents; represents the municipality in any legal action; provides staff training; and may attend council meetings. In small communities that contract with a private attorney, these duties are the same, merely extended between multiple cities and towns. These responsibilities must be balanced with their ethical obligations and bar licensing requirements.

It may be helpful to look in your charter or code to determine the scope of the attorney's duties and how the law department is required to conduct business. This knowledge will assist you in knowing what types of questions your attorney can best answer. It is also beneficial to provide sufficient time for an attorney to research and respond to a problem. Depending on the complexity of the issue, legal research can take an extensive amount of time so it is helpful to be cognizant of your city and town's legal resources such as the number of legal staff that are available to work on the problem, the current workload of the attorneys, and how many resources the municipality is willing to expend (e.g. hiring outside counsel with specific expertise).

Respect
Mutual respect is a critical component to any effective working relationship. The League is a resource for your cities and towns; however, the League should not be used to circumvent or overrule your attorney's advice. If you disagree with your attorney, it is important to follow any established internal policies to resolve these matters, including talking directly with your attorney. Elected officials may reject their attorney's legal advice, but it is important to have a full understanding of the legal risk to the city or town before making a final decision.

Communication
Another key component to effective relationships is communication. In fact, attorneys have an ethical rule about communication that requires an attorney to keep the client informed about an agreed course of conduct, and to reasonably consult with, and respond, to requests for information about the status of legal matters.

In order to establish a dialogue with your attorney, it is important to recognize these ethical obligations, and acknowledge the attorney's roles and responsibilities, which may be further delineated in the municipality's governing documents. Ask questions to better understand their roles and their style of interaction. What is the expectation at council meetings when legal matters arise? Whose responsibility is it to intercede when a parliamentary question is raised? When does your attorney want to be brought into a project? It may not be possible for them to be at every council meeting, or every type of board or commission meeting so how do you want your attorney to prioritize the legal department's resources? For litigation matters, will you rely on your city attorney or outside counsel? The answers to these fundamental questions will assist your city or town to establish reasonable expectations for your attorney, and open a dialogue about the attorney's work on the behalf of the municipality.

Addressing Problems
If there is a problem or concern, try to give the attorney the benefit of the doubt, and don't assume that they are refusing to assist you. There could be many reasons why they aren't able to promptly respond (e.g. confidentiality provisions, conflicts of interest, time constraints, etc.). If problems persist and there is a lack of follow-through and the attorney is not responsive to your efforts at communication, it may be necessary to discuss the matter with your city or town manager who is in charge of personnel, and ultimately the council (and outside legal counsel) if there is a breach of contract involving the attorney's responsibilities.

Support Educational Opportunities
As mentioned previously, attorneys are required to have at least fifteen hours of continuing legal education per year in order to remain actively licensed in Arizona. While the State Bar typically charges $150 for three credit hours, there are more affordable options available, including the League's city attorney conference, and other trainings offered through private firms, webinars or attorney organizations. These educational requirements help attorneys to stay apprised of any changes in municipal law, and provide a forum to engage with other attorneys and brainstorm about potential problems and solutions, which will ultimately benefit your city or town.

Conclusion
Your city or town attorney is hired to utilize their legal expertise to represent the interests of the city or town. By examining their contributions, recognizing their duties, and engaging in open communication, you may benefit from a more effective working relationship with your attorney. Although there may be times when you will disagree with your attorney, it is beneficial to discuss any problems directly with the person prior to taking the matter to a higher level. Your attorney is a significant asset to your city or town and hopefully, these suggestions will help support a positive working relationship with your attorney.

 

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