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.
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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
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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
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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.
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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).
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