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HomeMy WebLinkAbout2006-11-18LSRC2.rpt Accepted by Selectmen 12/4/2006 Legal Services Review Committee II Interim Report Nov 18, 2006 Introduction and Background The Board of Selectmen asked the Legal Services Review Committee II to undertake its review of the Town's legal services in phases The first phase was, in the words of the Board's charge, to "review the Town's legal activities and needs, evaluate common models for provision of these services , and present to the Board an initial report outlining the advantages of each model for the provision of legal services to conduct and manage the Town's legal efforts " This interim report seeks to respond to this element of the Board's charge The Committee initially convened on July 19, 2006 and has now met a total of six times The members of the Committee are Peter Enrich (chair), Margery Battin, William Dailey, Daniel Griffin, Philip Hamilton, Stephen Politi, Jeffrey Robbins, and Alan Wrigley Marilyn Kolb was initially a member of the Committee but had to step down due to other commitments In addition to the appointed members, most meetings have been attended by Carl Valente, Hank Manz as Selectmen's liaison, Tom Griffiths as School Committee liaison, and Maryann McCall-Taylor as liaison for the Planning Department In its initial meetings, the Committee, guided by research previously conducted by Mr Valente for the Mass Municipal Management Association, identified four primary models through which towns in Massachusetts acquire needed legal services a) in-house staff counsel, b) use of a large proportion of the time of a local practitioner; c) retention of a full-service firm that specializes in municipal work(The primary firm playing such a role in Massachusetts is Kopelman & Paige ), and d) retention of a multi- purpose law firm that services both municipal and private-sector clients The committee identified nearby communities reasonably comparable to Lexington that utilize each of these models and scheduled site visits with one example of each model—Brookline for in-house counsel, Needham for sole practitioner; Burlington for municipal specialty firm (Kopelman& Paige), and Bedford for multi-purpose firm (Murphy, Hesse, Toomey & Lehane) Between four and eight of the committee members and liaisons attended each of these site visits, where we met with the town manager and a varying set of other participants from the visited town. None of the visits included the town's moderator, but Mrs Battin separately conferred with each of the moderators and reported back to the full committee In addition, the Committee invited representatives of the two largest consumers of town legal services who were not represented on the Committee—the Permanent Building Committee and the Board of Appeals—to meet with us to discuss their legal needs, and we held productive meetings with each of their chairs (Phil Poinelli and Judith Uhrig) After conducting the four site visits, we also met with Bill Lahey to discuss the Town's present model for the delivery of services and to review the changes resultant from the switch from Palmer& Dodge to Anderson& Kreiger Findings Our site visits and discussions revealed that each of the four models has some considerable virtues, in some cases more so than many committee members initially anticipated. We were struck by the fact that each of the four communities we visited was very satisfied with the quality of services that it was receiving, and each was convinced that its model served it well and better than the alternatives On closer examination, it was evident that, in every case, the key to the communities' satisfaction lay less in the model for delivery of legal services than in the person who played the lead counsel role and in the nature of the Towns' leaders' relationships with that person. In three of the communities we visited, the same person had been serving in the role of town counsel for between 15 and 25 years, whereas in Brookline the person who had served as town counsel for two decades had recently retired and been replaced by his long-time deputy After reviewing the merits and disadvantages of each of the models, the Committee has concluded that the Town is very well served by its current model, especially in light of the move from a very large downtown firm to a smaller scaled, more specialized firm. Although the other models offer their own strengths, we believe that, on balance, the present model best serves the Town's needs and goals In assessing the various models, the Committee recognized several key considerations, among them. a strong relationship with a senior attorney who serves as the primary legal counsel, clear and comfortable communications between the attorneys and senior town officials, reasonable costs, adequate specialization to cover the range of municipal issues and adequate sophistication and creativity to provide quality representation, availability of adequate back-up when the lead attorney is unavailable Of the other models, the sole practitioner model is probably least well suited to Lexington's situation. Each of the visited communities employing models other than the sole practitioner model had migrated to its present approach from the use of a sole practitioner, and each underscored the benefits of the migration and averred that they would not consider going back. This model places tremendous weight on the multiple skills of the particular individual playing the role, and renders the town highly dependent on his/her continued availability Only rarely will an individual bring the range of skills and knowledge needed to satisfactorily play such a role, and the Committee has grave doubts about whether or how Lexington would be able to identify and secure a person capable of taking on such a role 2 The success of Brookline's in-house counsel approach depends on being able to sustain a large enough in-house legal department to provide the full range of expertise required. In Brookline's case, the counsel's office employs four full-time attorneys plus two paralegals Their sense is that the minimum adequate size for an in-house counsel office would be about three full-time lawyers with appropriate supporting personnel. Brookline is a substantially larger community than Lexington, and it is less than clear whether our size would support a sufficient sized staff. It also appears that the in-house model was the most expensive of the models we considered, although it is difficult to make solid comparisons, given variations in community size, legal needs, and choices about which services to secure from primary town counsel. (In Brookline's case, comparisons are further complicated by the fact that Brookline is self-insured for tort claims and property losses, and a substantial portion of the legal department's time is devoted to managing such claims ) Nonetheless, the in-house model does provide Brookline with the advantages of day-to-day involvement of legal staff in a wide range of town decision-making and from the ability to undertake (or to threaten) litigation without incurring added municipal costs On the other hand, some committee members had questions and concerns about the degree of sophistication and expertise that a four-person in-house staff could provide to the Town. Finally, were this model to be of interest, a critical question would be how the Town could effectively make a transition to an in- house operation, it is less than clear that we could find a person with the requisite skills and experience to lead such an operation in the years that it would take to build up a capable in-house team. The pro's and con's of the specialized municipal firm model were perhaps the most difficult to assess As noted, most of what we heard from Burlington was very positive, although it was difficult to assess how much their experience depended on the fact that Burlington was one of Kopelman & Paige's first clients and that the town has maintained an unusually close relationship, throughout that history, with the senior partner at the firm who has been the town's lead counsel. The evident virtue of this model is that a large firm specializing in municipal law has a wide range of in-house expertise to address the vast bulk of issues with which Lexington is likely to deal. The correlative concern is that, in a large firm with many dozens of municipal clients, individualized attention to a town's particular needs may be diminished in favor of application of standardized, "cookie-cutter" solutions There were also concerns on the part of Committee members about ensuring continuity of services and a centralized overview of the client's multiple needs and concerns when dealing with a firm with a large and changing staff of lawyers, as well as concerns about whether such a firm would offer the same level of sophistication and creativity as a firm that focused on more individualized and custom-tailored services At the same time, it should be noted that, at least based on Burlington's experience, which may be unique in certain respects, this model appeared to be substantially less expensive than the viable alternatives Finally, the Committee saw a great many benefits to Lexington from the model we are currently using—benefits that largely reflect what the Committee perceives as a very positive relationship with Bill Lahey and the impressive strengths that Anderson& Kreiger offers to the Town, although many of the same benefits were also evidenced in 3 Bedford's use of the same model with a different firm and another lead attorney As far as the information available to us suggested, and with the one exception of the Permanent Building Committee (discussed further below), all of the major users of legal services in the Town appear highly satisfied with the services they are currently receiving. We believe that Anderson& Kreiger provides the Town with an impressive combination of individualized attention and sophistication in the specialized fields relevant to municipal affairs The model provides a lead attorney of very high caliber and with a deep knowledge of, and interest in, the Town's affairs, the fact that he is a resident and a former member of a town committee is an added bonus And the firm includes unusually knowledgeable and creative attorneys in the primary fields of concern to the Town. Over the years, this combination has resulted in a level of legal representation that would be hard to duplicate and that has produced many exceptionally favorable outcomes for the Town. While the Town's relationship with Palmer& Dodge served the Town very well (as the report of the Legal Services Review Committee I four years ago detailed), the Committee believes that the transition to Anderson & Kreiger marks a distinct improvement Anderson & Kreiger devotes roughly half of its energies to municipal representation, which means that Lexington will be a far more significant client than we ever could be for a firm of Palmer& Dodge's scale, while also ensuring that the firm will maintain cutting-edge expertise and specialization in municipal law Moreover, the switch has reduced the hourly rates at which the Town is billed, as has been evidenced in the monthly billings since the transition. Beyond these findings relating to the various models, several other points should be noted a. In his meeting with the Committee on behalf of the Permanent Building Committee, Phil Poinelli made clear that he felt strongly that the PBC's needs for expertise in public construction law would be best served by the use of specialty counsel for this function. He indicated that in his professional life, he has become familiar with several Boston firms with specialization in this area, and he recommends that it would be both more cost effective and more protective of the Town's interests to rely on such a firm for future major construction projects The Committee is not at this time in a position to independently analyze this contention, and notes that Bill Lahey feels that Anderson & Kreiger possesses a high-level of sophistication in this area. This is a topic that deserves further exploration, although the most productive next step may well be further discussion between the PBC and Anderson& Kreiger to assess needs and available resources By contrast, the Board of Appeals reported that it was highly satisfied with the services provided formerly by Palmer& Dodge and more recently by Anderson & Kreiger, which reflected a high level of responsiveness and relevant expertise b Aside from the question of how to handle public construction law, the Committee finds satisfactory the present use of outside counsel for certain specialized functions, such as Cable TV, collective bargaining, and bond issuance We note that 4 some of the communities we visited have consolidated municipal and school department legal services in one legal counsel, and believe that this may be a direction to consider in the future, although the present model of separate counsel for municipal and school needs appears to be functioning well (It is worth noting in this regard that Town counsel— in some cases in conjunction with insurance counsel —presently handles non-labor litigation for the school department ) c Whatever model the Town adopts, continuing vigilance will be required to manage the costs of legal services, especially in the face of the complex litigation that the Town frequently faces The Committee believes that one important element of this strategy is reliance on the Town Manager as the gate-keeper for other Town employees' and officials' utilization of legal services We also applaud the transition to monthly and more detailed billings Finally, we encourage a continued role by Town Counsel in advising staff and committees about ways to handle their responsibilities that are likely to obviate the need for expensive litigation and to foster favorable outcomes when litigation cannot be avoided. d. The Committee noted that some of the other towns provided for a regular cycle (e g. every 3 years) of review of the town's legal services This might be a useful approach for Lexington as well. Recommendation For the reasons detailed above, the Committee recommends that the Town continue to utilize the present model of working with a medium-sized firm that represents both municipal and private clients in a sophisticated practice If it would be helpful, the Committee will be happy to meet with the Board to discuss the reasoning behind this recommendation. In addition, we note that Anderson& Kreiger is not the only firm in the Boston area that fits this description. Although our recommendation is based in significant part on the positive experience with Anderson& Kreiger, we understand our charge, in this phase of our task, to be to recommend a model, rather than a particular firm. If the Board accepts the Committee's recommendation with regard to the model and believes it is in the Town's interest to explore other firms who also fit this model, the Committee stands ready to assist However, we believe that the recommendations of the predecessor Legal Services Review Committee with regard to the wisdom of engaging in such a process continue to deserve consideration. The Committee makes no recommendation on this point, since it falls outside of our charge 5 ADDENDUM COMMENTS OF STEPHEN POLITI While I have concluded that the multi-purpose law firm model that services both municipal and private-sector clients is an acceptable model for Lexington, I have also concluded that the full-service firm that specializes in municipal work is an acceptable model for Lexington. The Committee has been informed that approximately 80% of Lexington's legal work falls into the "routine" category and that Lexington is paying the highest hourly legal billing rate of the municipalities that responded to Mr Valente's study for the Massachusetts Municipal Management Association. Additionally, the Committee has identified that annual legal expenditures by Lexington (exclusive of PBC representation) is approximately $100,000 00 higher than each of the nearby communities reasonably comparable to Lexington that the Committee visited. When PBC representation is included (although this may not be a fair comparison because Lexington's recent PBC construction activity has been substantial and this does not appear to be the case with all of the other visited communities), Lexington's recent annual legal expenditures are approximately $300,000 00 higher than each of the communities visited. While I have concluded (as previously stated)that the Anderson& Kreiger model is an acceptable model for Lexington, I do not conclude that our work supports a finding that the transition from Palmer & Dodge to Anderson& Kreiger "marks a distinct improvement" For example, Palmer& Dodge made Norm Cohen available to Lexington, in Lexington, on Wednesdays (half days) and I repeatedly hear that Town Counsel was more readily accessible when Palmer& Dodge was Town Counsel. While Bill Lahey did inform the Committee that he personally is billing the Town at a rate which is lower than his Palmer& Dodge billing rate, it was not clear (at least to me) that substantially reduced hourly rates are in place, "across the board", for all attorneys providing services to Lexington or, more generally, that Lexington's legal bills will be significantly reduced because of the transition to Anderson & Kreiger Finally, although I agree that "Phil Poinelli made clear that he felt that the PBC's needs would be best served by the use of specialty counsel", Phil's message was broader than this i.e my notes indicate that Phil is not satisfied with Anderson & Kreiger's representation (not Just that Lexington would be better served with specialty counsel) 6