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HomeMy WebLinkAboutResolution - 2011-R0340 - Amend City Council Rules, Order Of Business, And Procedures - Legal Council - 07_27_2011Resolution No. 2011-RO340 July 27, 2011 Item No. 6.1 RESOLUTION WIII:RI:AS, the City Council has heretofore by Resolution established policies and procedures pertaining to the City Council and of the Cite of Lubbock in a Policies and Procedures Manual: and VvHI'l21:AS, the Cit)- CounL'i€ finds that it Mould be in the public interest to amend certain policies and procedures as set forth in the City of Lubbock Council Rules. Order of 13usirlcss all Procedure nianual, and W 111:R1:AS, pursuant to Seetiun 11[13 ) of said Rules, this proposed amendment has been introduced into the rccord at it prior regular meeting of the City Council, NOW TI11:RI'I1-'DRI BF IT RI:SOI-VI-:1) BY TI11: CITY COUNCIL OF 1111`1 CITY OF LUBBOCK: SFCTION 1: Tf IAT the CitV Council Rules. Order ot' 13usiness and Procedures its set forth in the Policies and Procedures Manual. be amended to include a new section entitled -Guidelines liar the Retention and I firing of' Out dde Legal Counsel" as set forth in Fxhibit "A" attached hereto and incorporated herein by relcrence for all purposes. SFCTION 2: THAT the City Manager, or her designated representative. shall incorporate the above amendlrlerlt into the C'it�' Council Rules. Carder of Business and ProcedU1'es. SECTION 3: THAT the provisions kidded hereby t❑ the City Council Rules. Order of 13usiness and Procedures shall apply prospectively ❑nly, and shall not affect oi- otherwise apply to the retention and hiring, of outside legal counsel initiated prior to final passage. Passed l?y the City C'ouneil this 27th day of July , 2011. ATTFIST: Rcb ca Garza, City 'Secretor APPROVED ASTO Attorney TOM MARTIN, MAYOR APPROVED AS TO FOIRM: John 9��a�, A�ant-"4itorney Q"QFDOCSRES.Rule Change -Outside Counsel Polio. 7.8.1 I .duc Resolution No. 2011—RO340 Exhibit "A" GUIDELINES FOR THE RETENTION AND HIRING OF OUTSIDE LEGAL COUNSEL I. Introduction On occasion, the City of Lubbock ("the City") finds it necessary to obtain outside legal counsel to handle various transactions and/or litigation matters. When it does hire outside legal counsel, the City expects outside legal counsel to achieve the best result for the City in an efficient and cost-conscious manner consistent with the law firms' and the lawyers' ethical obligations. The purpose of these Guidelines is to simply and clearly set forth the expectations of the City as regards the handling of matters by outside counsel and how the time spent should be billed. City Attorney, as used in these Guidelines, means the City Attorney or the City Attorney's designee. I1. Retention of Counsel All outside counsel shall be hired on the recommendation ofthe City Attomey and by final approval of the City Council. No employee of the City, other than the City Attorney with approval of the City Council, may employ or offer employment to any outside attorney on behalf of the City. Until the City Attorney recommends the retention of the outside counsel and the City Council approves the same, and until outside counsel acknowledges receipt of a copy of these Guidelines and agrees in writing to be bound by these Guidelines, retention shall not be deemed complete. There shall be an engagement of services document signed by the respective outside counsel and the appropriate City Council representative each time respective outside counsel is hired. The City Council delegates authority to the City Attorney to execute a contract to retain outside counsel, for amounts not to exceed $10,000.00, without obtaining the prior approval of City Council in instances where, in the professional opinion of the City Attorney, time and circumstances make obtaining prior approval unreasonable and immediate retention of outside counsel is necessary to protect the legal interests of the City. III. Billing The hourly rate for handling each matter for which outside counsel is retained shall be agreed upon in advance and in writing with the City Attorney. On no occasion shall the rate exceed the rates normally charged by lawyers in the City of Lubbock as determined by the City Attorney, save and except for those matters in which outside counsel, by virtue of their expertise, need to be retained at a higher rate. Hiring of local counsel is encouraged whenever circumstances permit. Monthly statements shall be submitted to the City through the City Attorney's office. The City Attorney is charged with reviewing those monthly statements. No statement shall be paid without the approval of the City Attorney. If the City Attorney believes that a statement for any month is excessive for any reason, immediate notice shall be given outside counsel. That portion of the monthly statement that is undisputed shall be paid. That portion of the monthly statement that is disputed shall not be paid until and unless the dispute is resolved as a result of good faith discussions between outside counsel and the City Attorney's office. If it is not resolved the monthly statement shall be submitted to the City Council for their review and appropriate action. The City Council shall make the final decision on whether to pay or not pay any portion of any disputed monthly statement not resolved between outside counsel and the City Attorney. The monthly statement must be prepared with daily entries showing: (a) the date the work was performed; (b) the initials of the person providing the service; (c) a description of the work performed, by single activity; and (d) the actual time in tenths of an hour for each single activity. The end of the monthly statement must include: (a) the full name of each attorney/paralegal; (b) the status of each timekeeper (i.e., partner, associate, paralegal); (c) the hourly rate of each timekeeper; (d) the total hours and total amount charged for each timekeeper during the billing period; and (e) subtotal amounts for both fees and expenses. Insofar as billing for costs incurred is concerned, outside counsel shall be allowed to bill as follows: I . Copies - to be negotiated prior to engagement. If the anticipated number of photocopies is large, steps should be taken, if at all possible, in an anticipated result of savings to the City. The bill from the outside copy service should be sent to the City by the attorney with payment due being made direct by the City to the outside copy service. 2. Courier charges actually incurred (itemized on each bill). Care should be taken to avoid excessive use of overnight mail/delivery, and overnight mail/delivery should only be used when necessary. The handling attorney should attempt to generate his/her work product in a timely manner so that it will not be necessary to send documents via overnight mail/delivery. 3. Postage and long distance actually incurred (itemized on each bill). 4. Airfare (coach rate - itemized on each bill). When appropriate, flight reservations shall be made as early as possible if it will result in savings to the City. S. Mileage — Internal Revenue rates per mile (out of town, city to city only - itemized on each bill). 6. Hotel accommodations (shall be approved in advance by the City Attorney and itemized on each bill). 7. Meals — actual meals up to the per meal cost paid by the City of Lubbock to City of Lubbock Employees (itemized on each bill). Supporting documentation, including copies of credit card receipts or cash receipts for air fare, car rental, hotel accommodations, and meals should be attached to the attorney's monthly statement to the City to substantiate the charge shown on the statement. Court reporters' bills and bills of records retrieval services should be forwarded by the attorney to the City for payment by the City direct to the court reporter or records retrieval service. Prior approval by the City Attorney must be obtained before the following actions are taken: (a) Out of town travel; (b) Depositions of parties and witnesses; (c) Legal research; and (d) Employment of any consultants or expert witness for the City. The City will not pay for double billing for intra-firm conferences, and the time billed will be paid for counsel with the lowest billing rate. Also, as regards travel time, travel time by outside counsel will only be billed, and will only be paid, half time, unless other arrangements are agreed to, in advance, by the City Attorney. For example, if travel to the airport to fly to Dallas and back to Lubbock and then back home totals four (4) hours, only two (2) hours of that time may be billed, and only two (2) hours of that time will be paid. Some matters may lend themselves to flat fee billing versus hourly billing, and the use of a flat fee billing arrangement should be explored and used when practical and where such an arrangement is expected to reduce overall costs to the City. As regards hourly rates, once they have been established for a particular matter, they shall not be increased without the approval of the City Attorney. IV. Case Staffing All firms are encouraged to provide their services in a manner that is professional and cost-effective for the City. However, as hereinbefore set forth, unless prior authorization is given, the City will not pay for multiple attorneys to attend meetings, depositions, court appearances, mediation, or any other matters. This limitation also applies to support personnel. One attorney with any law firm retained as outside counsel for the City shall be designated as the lead attorney in any matter and shall have primary responsibility for each case in which the lawyer and his or her law firm is retained. The case should be staffed economically and effectively. Obviously, a balance should be struck between the efficiency a more experienced lawyer at the firm brings to a given task and the advantages of having the task performed by an associate lawyer or a paralegal who bills at a lower rate. Duplication of efforts within a law firm should be avoided. As specifically set forth hereinafter, there should be no more than one (1) attendee at a trial, hearing, court appearance, arbitration, mediation, deposition, third -party meeting, conference call, or similar event unless discussed and approved in advance with the City Attorney or the City Attorney's representative. V. Budget and Reports Within thirty (30) days of the case assignment and retention of outside counsel, counsel shall provide the City Attorney a written report analyzing the matter in which it has been retained, estimating the time it will take to accomplish the project (if the matter is a transactional matter), or analyzing the claims asserted and appropriate defenses with any other strategy (if the matter is a litigation matter). Counsel shall comment on the strengths and weaknesses of various claims, defenses, and associated elements to prove same, estimate the. amount of damages, and recommend a course of action for prosecuting or defending the case and/or seeking timely resolution. The report shall also include an estimated amount of fees to be incurred for each stage ofthe matter, including, but not limited to, preparation of documents, and, if a litigation matter, discovery, pre-trial motions, depositions, anticipated experts, possible trial expenses, and other information counsel believes is beneficial to the City. Within one -hundred twenty (120) days of assignment, counsel shall provide a second report that updates or modifies any information previously submitted, including expenses, with sufficient explanation for changes. Reports shall then be submitted in at least one hundred twenty (120) day intervals, as needed, to keep the City fully apprised of the developments in and progress of the case and the fees and expenses associated therewith. If expert assistance is needed as regards any transactional matter, or expert testimony is needed for any litigation matter, counsel shall not hire such an expert without first contacting and obtaining the approval of the City Attorney. Invoices for expert fees shall be sent directly to the City for payment and shall sufficiently detail expenses, as limited above. If at any time in the course of handling any transactional or litigation matter, outside counsel believes that his/her estimate of fees and expenses will be more than first or subsequently reported, then outside counsel shall immediately file an amended and supplemental estimate of fees and expenses. Failure of outside counsel to so amend the initial or subsequent estimate of fees and expenses could result in the City refusing to pay the subsequent increase in fees and expenses subsequently billed. VI. Media No comment on any matter shall be given by outside counsel to any member of the public or the media without the prior approval of the City Attorney. VII. Attorney -Client Privilege Outside counsel shall agree that the attorney -client Privilege for all communication, materials, and work production protection shall survive the termination of outside counsel's retention and employment by the City unless disclosure of any matter is required by law. If such disclosure is requested during or after the matter for which outside counsel has been retained is terminated, outside counsel shall notify the City within forty-eight (48) hours of any request. Outside counsel will familiarize themselves with the opinions of the Texas Attorney General with regard to waiver of attorney -client privilege when communicating with third - parties and will take precautions to protect the sanctity of the privilege. All legal research performed and documents developed in connection with the representation of the City shall be the property of the City, and copies must be provided upon request, without charge, other than copying. VIII. Right to Terminate The City may terminate the retention and employment of outside counsel at any time. Upon notice of termination, outside counsel shall surrender all files, materials, and any other matters involved in the matter for which outside counsel has been retained, a final invoice for outstanding work to be submitted to the City within thirty (30) days of termination. Outside counsel may be terminated by the City with or without cause. IX. Conflict of Interest By accepting the City's retention, outside counsel and all of the lawyers in any law Finn retained as outside counsel, warrant and represent to the City that they have no conflict of interest in representing the City for the matter in which they have been retained. If at any time during the retention outside counsel, unexpectedly or not, develops a conflict, that conflict, or even any potential conflict, shall be immediately disclosed to the City Attorney, in writing. X. WHEN THE CITY HAS A CONFLICT OF INTEREST From time to time, the City may find that it has a conflict of interest in handling a case and is thereby required to hire outside counsel. Each conflict may bring its own issues and should be handled accordingly. There are times that the City will be a defendant at the same time one of the City's employees is also a defendant. If such conflict exists and outside counsel is hired, said outside counsel for the employee must adhere to the same billing requirements for outside counsel as provided in each of the Sections outlined hereinabove. The City retains the right to establish the hourly rates of any outside counsel, including those hired under this Section. If it becomes necessary for individual defendants to hire outside counsel of their choice, said individual defendants shall be required to personally pay for any amounts their respective counsel charges above the rates established by the City. If conflict exists, outside counsel's billing statements should not be reviewed by the City Attorney's office. However, as decisions about these matters must be made, all outside counsel undertaking to work for the City agree from the very outset that all billings, expenses and costs required to hire experts, to take depositions, to travel, or for any other cost associated with the case, shall first be submitted to the office of the City's Risk Management. The Risk Manager or her designee shall review and determine the reasonableness of the billing or request submitted. In determining the reasonableness of the billing or the request, The City's Guidelines on Hiring Outside Counsel shall be taken into consideration by the Risk Manager or her designee. If a dispute arises between the Risk Manager and outside counsel, then the matter shall be immediately referred to the City's Third Party Insurance Administrator. Outside counsel agrees to be bound by the Third Party Insurance Administrator's decision and shall agree that said decision shall be a full and final decision in the dispute at hand. Outside counsel and his client, heirs, assigns or anyone acting on their behalf at any time also agree that the Third Party Insurance Administrator's decision is final as to any and all matters connected to or arising out of the dispute at present or in the future and no other action shall ever be taken.