Sunday, March 17, 2013

A Question Regarding County Management

When a county gets sued, it hires lawyers to represent it. Normally, the county’s risk management official consults with county counsel and the New Mexico Association of Counties (NMAC) to select a lawyer. That lawyer then reports to the risk management person or in-house lawyer.

But suppose the county counsel is kind enough to agree to handle some of the cases himself, at $150 per hour, and NMAC appoints him. He’s then in the ethically challenging position of overseeing his own work.
As a county official, can he judge his performance as trial lawyer objectively? If the county loses a big case,  how does he evaluate whether the county should sue pat him on the back for a good try or sue him for malpractice?

The outside lawyer defending Doña Ana County in Slevin was County Counsel John W. Caldwell.

I am not saying that he committed malpractice, or that even Clarence Darrow could have won the case.
But serious questions were raised more than two years ago about the situation.

In Alvarado, the plaintiff was a deputy sheriff who drove his patrol car into an irrigation ditch. He claimed he’d been chasing a speeding car. A witness saw him drive into the water but saw no other car. He was terminated, and sued the County.

Sounds like a strong case for the County. Mr. Caldwell wrote on April 15, 2010 "Discovery is over. I think we should prevail at trial."

The County did not even get to trial on the procedural due process claim. The court granted plaintiff summary judgment because although Mr. Caldwell knew that the fired deputy was represented by a lawyer, the County sent an arbitration letter to the man without sending a copy to his lawyer. Mr. Caldwell says the Law Department didn’t send the letter, that Human Resources probably did – and also questions the court’s decision, noting that the plaintiff was a union-member with the assistance of the union, which was obligated to advise him..

The case settled for $42,000.

When an attorney or client misbehaves, the judge can order that client or attorney to pay money, including reimbursement of attorney fees.

In Bravo, the strip-search class action, the County was sanctioned $7,394 because Mr. Caldwell didn’t inform the judge or the opposing lawyers who traveled here for a pointless settlement conference about an settlement idea that the County Commissioners had decided against six days earlier. The Court based the sanction on "the total failure of defense counsel to notify Plaintiffs before the settlement conference."

Mr. Caldwell, who received more than $150,000 for his work on Bravo, disagrees with the order. He notes there had been no order that the county notify anyone, and also that the sanctions were against the county, not against him personally.

Sanctions and plaintiffs’ summary judgments occur in only a small percentage of the cases where litigants request them.

The County’s risk manager sent a memo citing these facts and questioning the relationship to top county management (but apparently not to the County Commission) in 2010, well before the Slevin trial. County Manager Brian Haines later ordered the risk manager to report directly to Mr. Caldwell. As one outside lawyer put it, "The guy who’s usually your quality-control person is reporting to [Mr. Caldwell.]" Mr. Caldwell says that he was not involved in this decision and that it was made months later, for unrelated reasons.

Slevin resulted in a huge judgment against the County. Mr. Caldwell should not necessarily be blamed for that. If he had some fault, so did many others.

Public documents and private comments raise other questions about Slevin. Shortly before trial, Mr. Caldwell filed an untimely motion asking the judge to recuse herself. She declined, both because the motion was so late and on substantive grounds. After trial, Mr. Caldwell renewed this motion, seeking a new trial. The judge denied it again, accusing the County of seeking "a second opportunity . . . to rehash arguments and to dress up arguments that previously failed." As to one county argument, the judge wrote that "to describe it as a stretch would be overly generous." (Mr. Caldwell says that he did not write the post-trial motion.)

If disqualifying Judge Vasquez was important, the County should have moved for it a year earlier. If it wasn’t a good motion, making it later risked irritating the judge for nothing, Mr. Caldwell says he was acting on instructions both in foregoing the motion early on, when it would have been clearly timely, and in filing it later.
More importantly, it appears that Slevin could have been settled before trial within insurance policy limits. It wasn’t. Hindsight is 20-20, so I’m reluctant to second-guess the county here; but there’s a strong appearance that the County didn’t take this case as seriously as it should have.

Even if Mr. Caldwell did a top-notch job on Slevin, the situation isn’t healthy. Although management received an independent legal opinion that the arrangement didn’t violate law or ethical rules, it’s unwise. Having an in-house lawyer help commissioners or management evaluate what the trial lawyer is telling them is important. County counsel or a risk manager can independently evaluate the trial lawyer’s work. They can help keep that work excellent and help the trial lawyer advise decision-makers clearly and effectively.

This unfortunate situation is part of a wider county management problem I’m looking into.

[The foregoing column appeared in the Las Cruces Sun-News this morning, Sunday, 17 March, headlined "County Counsel Shouldn't Also Be Handling Court Cases."  (Probably a better title than the one I typed in above.)  Since I uploaded a not-quite-final draft, there may be minor differences between the column as it appeared in print and the column as it appears above. 
Anyone interested in reading further should go to the Sun-News web-site and read Diana Alba Soular's article.  She gives a good, balanced account, including quotes from an interview with Mr. Fridenstine (the former risk manager mentioned above) and, with more space thant there is in a column, was able to quote extensively Mr. Caldwell's views, which (not surprisingly) differ substantially from mine.   Secondly, to anyone who looks to this site Sundays to read my column, apologies.  I was in the mountains, far away from newspapers and my computer, until this evening.]

A major point Mr. Caldwell makes in rebuttal to the foregoing is that not every entity (public or private) has an in-house counsel or can afford one.  That's true.  However, I'm not sure a large and growing county like Las Cruces should adopt questionable procedures just because some smaller counties may do so or have to do so; and if you have Mr. Caldwell, an experienced litigator, as in-house counsel, and a long list of $150/hr. trial counsel, why wouldn't you rather have someone else handling a major case and Mr. Caldwell coordinating with him or her as needed?  There are several good reasons you'd want to separate the roles, as most any experienced trial lawyer can tell you.

In any case, this is (regrettably) not the only question I have right now about county management.  I'm hearing some allegations that are too consistent and too credible to ignore, and I'm trying to check them out.

Meanwhile, on the drive back we crossed White Sands Missile Range just before sunset and saw not even a single hawk.  Used to be, as our friends kept mentioning during the drive, you'd see a hawk sitting on about every sixth telephone pole, scouting for supper.  If I had time (and more columns) I'd write one called "Where Have All the Hawks Gone?" -- a question we also heard discussed at a recent Audobon Society meeting we attended.

No comments:

Post a Comment