This article primarily covers the relationship between the city/county manager and the appointed city/county attorney and may bear some relevance to working with those who are elected.
A city/county manager, like executives in the private sector, need to work with attorneys and get legal advice to both protect themselves and the entity they lead. Differences between a local government entity and the private sector exist, especially with what can be a somewhat different organizational chain of command, yet the primary goal for any organization’s use of counsel remains efficiency and effectiveness. So how to work best with the city/county attorney? Communicate.
If clients have complaints about their lawyers, it is usually about communication: its style, form, or failure. Communication failures do not belong just to the attorney-client relationship. Having worked in management and represented management for close to 40 years, I think it is fair to say that one of the biggest problems in employer-employee relations involves issues of communication. In the employment context, employees often do not understand what their bosses expect of them, and the employers often do not create an appropriate forum to learn from their employees. Why would we expect attorney-client relations to be any different?
Universally, outside counsel provide a client with an engagement letter (or contract) outlining what the client should expect the attorney to do, describing what the client should do, and establishing the fees for the services. These engagement letters help. Yet most people hire an attorney to help them read and understand contracts and legalese, so the attorney-client relationship begins with paradox—a contract drafted by an attorney designed to benefit the attorney that may use words and discuss concepts the client needs help to understand.
Usually, rules of ethics require the attorney to make certain the client understands the terms of the engagement. Various factors may influence how the engagement will be viewed if the relationship falls apart but do little to help strengthen the relationship between attorney and client. Instead, both the attorney and the client are well served by ensuring that each understands the other’s needs and ensuring that they make themselves available one to the other. With an organizational client, like a local government, there may be many players in the relationship. Often, the attorney does not work directly for the manager and the manager may have little managerial control of the attorney yet must use the attorney’s services.
Tip: Whether you have in-house or outside counsel, you should work together to define roles and responsibilities: what will counsel expect from you what will you expect from counsel; what are the deadlines or time frames for responding; how often should status updates be provided.
Establishing the ground rules of the attorney-client relationship helps eliminate misunderstandings of responsibilities and makes more efficient use of the attorney’s time. When the attorney gets a call from the public works director to review a contract, each has expectations. The director expects the attorney to review the contract and suggest what changes should be considered to make it “legal.” The attorney understands the job as one to review the contract to be sure that the contract protects the government from unanticipated costs, protects the government in the event of dispute, conforms to law, and offers the government the best deal. Only the last is not strictly within the scope of legal advice. What the director expects the attorney to do and what the attorney understands to be the attorney’s role are not necessarily the same. Just as problematic, the attorney may be seen as a hurdle to overcome, rather than a resource. Often, by the time the attorney gets the contract, the line agency—in this scenario, the public works department—has determined that the contract is a good one and the department wants the deal concluded quickly. In local governments that operate inefficiently, it may be the first time the attorney was brought into the discussion. The department may not have asked the attorney to review the bid solicitations or the bids. Already, the government is disadvantaged.
The city/county manager may be under the gun to get the project done, whether it is to extend or build a landfill, jail, courthouse, school, recreation center or road. The department will be pressed to perform on time. If the attorney determines that the contract inadequately protects the government from unanticipated costs or in dispute resolutions, the attorney becomes a stumbling block to achieving goals.
The manager can solve these two problems of communication easily. While sports analogies are not always appropriate, in this case American football proves a perfect example for helping understand the way an attorney can be used as a resource rather than an obstacle. Bring the attorney into the huddle! Just as in football, for the attorney to function properly, the attorney needs to know the ‘play.’ The attorney needs to know what each department’s goals are and the time frame within which those goals are to be accomplished. The agencies need to know at what stage the attorney should be involved. Like building a building, you can order the bricks, but before the foundation has set, you cannot begin building the wall. If conflicting priorities affect the attorney’s availability in fulfilling an agency’s goals, then the attorney and agency must communicate about how they can cooperate to achieve the goal.
Using the public works contract as an example, an efficient government will have the attorney participate in the development of the RFP (or bid documents), a proposed contract will be part of the RFP (or bid documents) and when the attorney offers what some might call “business” advice, the department will be in a much better position to value that advice. Often an attorney may advise the client that nothing prevents the client from agreeing to a term or proceeding in a specific way, but the costs of doing so may be dramatically higher than another course. A wise client recognizes, values, and welcomes that advice even if it determines not to follow it. A wise attorney will welcome the opportunity to provide that advice and will not be upset if the client chooses a different course.
Tip: Involve the law department early in policy, program, and facility development to get advice, ensure goals can be achieved, and increase efficiencies.
With the COVID-19 pandemic still ongoing, municipalities continue to deal with leave requests from employees for various COVID-related reasons. Addressing such requests can be challenging because they may implicate various overlapping laws. In a recent webinar, the International Municipal Lawyers Association IMLA outlined how municipalities should handle these challenges, especially the intersection of the requirements of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the recently extended and expanded tax credits available under the Family First Coronavirus Response Act (FFCRA).
Register for this complimentary webinar courtesy of IMLA with discount code: ICMA -Rec
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