HomeMy WebLinkAboutMINUTES - 05181993 - FC.1 r `TO: BOARD OF SUPERVISORS
Contra
Costa
FROM:
Finance Committee
County
DATE: May 18, 1993 jos... ..
qC UN
SUBJECT: REPORT ON NEW PROCEDURES FOR SELECTING LEGAL
CONSULTANTS, OUTSIDE ATTORNEYS, REVIEW OF BILLINGS, CONFLICT
OF INTEREST POLICY AND PRO BONO ACTIVITIES
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
1. Approve the attached procedures for the selection and monitoring of outside
litigation counsel.
2. Consider the establishment of a community task force to review policy and
procedures for the selection and monitoring of outside litigation counsel and
advise the Board of Supervisors on improvements to current policies and
procedures (Split Vote of Committee).
3. Direct the County Counsel to solicit directories of legal firms which are small and
minority owned for future consideration in bidding for legal services.
4. Approve the County Counsel's report on pro bono legal services for county
benefit.
5. Direct the County Counsel and Risk Management to quantify the nature and
extent of pro bono legal services provided to the county over the past several
years and report such services to the Board in the future on a quarterly basis.
CONTINUED ON ATTACHMENT: __YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S): Gayle Bishop Tom Power
ACTION OF BOARD ON may 18, 1593 APPROVED AS RECOMMENDED OTHER X
The Board adopted recommendations 1, 3, 4, 5, 6 and 7, excluding recommendation 2.
Supervisor Gayle Bishop abstained, commenting that she was in favor of public input
in the matter, and she would like to have it continued to another date.
VOTE OF SUPERVISORS
1 HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT- AND CORRECT COPY OF AN ACTION TAKEN
AYES: T, T T, TV & V NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: T T T OF SUPERVISORS ON THE DATE SHOWN.
CC: County Counsel ATTESTED May 18, 1993
County Administrator PHIL BATCHELOR,CLERK OF THE BOARD OF
Risk Management-CAO SUPERVISORS AND COUNTY ADMINISTRATOR
BY
M382 (10/88) ,DEPUTY
r
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6. Establish a county policy on pro Bono legal services which stipulates that a firm
providing pro bono work for the county shall not diminish pro bono work with non-
profit organizations who contract with the county.
7. Approve the County Counsel's policy on conflicts of interest for outside legal
counsel.
BACKGRDUND:
On April 26 and May 17, the Finance Committee reviewed proposals and heard
testimony regarding the selection and monitoring of outside litigation counsel, a conflict
of interest policy and pro bono legal service activities. After due. deliberation, the
Committee adopted seven recommendations on these subjects, but the second
recommendation was included in the report on a split vote.
The Committee also suggested that staff provide information not specifically listed in the
proposed procedures. First, that staff provide the Board with status reports on case and
billing information on perhaps a monthly basis. Second, that the County Counsel
indicate what factors were applied in recommending to the Board that a firm receive a
waiver from the conflict of interest policy.
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PROPOSED PROCEDURES FOR SELECTION
AND MONITORING OF OUTSIDE LITIGATION COUNSEL
I. INTRODUCTION: The following document outlines the proposals
for the Board of Supervisors usual review of the selection
and monitoring of Law Firms or particular attorneys to
contract with the County for the performance of legal
services.
Specific recommendations for the selection and monitoring of
outside counsel .are made.
II. BOARD OF SUPERVISORS REVIEW AND MONITORING OF PENDING
LITIGATION: Staff recommends that the Board 'of Supervisors
as a whole sit as a committee to address pending litigation
matters. Appropriate staff will assist and attend the
committee as required.
III. SELECTION AND MONITORING OF SPECIAL COUNSEL:
A. The implementation and administration of this Part III
will be in accordance and consistent with the County
Counsel's "Contra Costa County Outside Counsel Policies
and Procedures (Rev. 4-93) . " now in force and as
hereafter modified.
B. Special Counsel are attorneys engaged to handle non
recurring legal problems requiring special expertise
not available under current legal contracts.
C. Criteria for selection will be reviewed by the Board of
Supervisors upon recommendations of the CAO (including
risk management as- appropriate) and/or County Counsel.
Criteria for selection should include recommendations
as to:
1. Area of expertise
2 . Experience level required,
3. References,
4 . Complexity, difficulty or sensitivity of the
project,
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5. Trial experience, where appropriate,.
6. Acceptable legal rate.
D. Process of selection:
1. CAO and/or County Counsel prepare a task or case
summary,
2. CAO and County Counsel will investigate and select
at least three top law firms meeting the
experience and expertise requirements necessary
for the particular assignment for review and
recommendation to the Board of Supervisors.
3. Requests for proposals will be prepared by CAO or
County Counsel outlining the required legal
services and the matters required to be addressed
in the response to the request for proposal.,-
4.
roposal4. The responses to the request for proposal should
include a preliminary prospective budget, initial
anticipated hours to be used, level of staffing
and hourly rates and outline of necessary legal
services.
5. The CAO and County Counsel will review the
proposals submitted and present them with their
comments and recommendations to the Board of
Supervisor's for its evaluation.
E. Billing Review for Special Counsel
1. A Supervising Attorney shall be appointed by
County Counsel to monitor the activities and
billings of outside Special Counsel (together with
Risk Management when involved. )
2 . Activities and bills of outside Special Counsel
and task or case status shall also be reviewed by
the Board of -Supervisors at each $50,000.00
increment.
3. County Counsel may recommend additional procedures
for legal task or case reviewing and billing
monitoring for Board of Supervisors for particular
matters.
4. The Auditor shall continue to review the billings
for accuracy and contract compliance, but in a
manner that will not compromise the attorney
client or work product privilege.
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5. At the discretion of County Counsel or the County
Administrator, an independent legal audit may be
recommended for Board of Supervisors approval.
The Board of Supervisors may order a legal audit
at any time either on recommendation of staff or
on their own motion.
F. Case Management for Special Counsel
1. The Supervising Attorney (together with Risk
Management when involved) shall be charged with
the duty of reviewing the management of legal
activities of Special Counsel with any additional
guidelines as are recommended by County Counsel
and approved by the Board of Supervisors.
2. The County Counsel, the County Administrator (or
Risk Management when involved) shall report the
status of cases being handled by Special Counsel
to the Board of Supervisors for its review and
direction on a regular basis, but not less than
three times a year.
IV. SELECTION OF NON SPECIAL CONTRACT ATTORNEYS
A. General tort liability defense for the county has been
generally handled by private attorneys holding
contracts negotiated by Risk Management and approved by
the Board of Supervisors. These contracts generally
are negotiated for periods of up to two years.
Presently there are 16 legal firms providing these
services.
B. The monitoring of outside contract attorneys shall be
in accordance and consistent with the "Liability Claims
Manual (7-90) . "
C. Criteria for selection include the following:
1. Specific experience in the defense of public
entities in one or more of the following areas
a. Medical Malpractice Defense
b. Automobile liability
C. General liability which includes
( 1) civil rights,
(2) employment actions,
(3) inverse condemnation,
(4) road design,
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(5) premises liability,
(6) police procedures.
2. Presently contracted attorneys meet these specific
experience requirements by having at least five
years or more of trial experience. New attorneys
applying for selection should have at least this
level of experience.
3. Trial experience of new attorneys shall produce
records of Jury Verdicts Weekly documenting their
successful trial record and appropriate references
from judges before whom they have tried cases and
plaintiff's and defense attorneys.
4 . Selection of new attorneys shall require an
investigation by Risk Management into the trial
results and experience levels of any new
applicants. Recommendations specific requirements
for selection should be discussed with the Board
of Supervisors.
5. Upon initial selection a new contract attorney
shall serve at least two years probation before
being eligible for the final list.
V. LEGAL SERVICES REVIEW (Contract List Attorneys)
A. Reporting:
1. Upon receipt of assignment, the attorney must
respond in writing, outlining their legal
discovery plan or outline proposed legal services
(in non litigation matters) .
2. The report must include the anticipated legal
budget.
3. The report must include initial liability analysis
and outline proposed additional investigation.
4. Following initial assignment quarterly status
reports shall be required using the format
presently in use under Risk Management
supervision.
5. Copies of all pleadings and correspondence should
be sent to the Liability Claims Manager in Risk
Management and to the County Counsel to the
attention of the Civil Litigation Attorney.
6. Reports of trial dates and other court
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appearances, depositions, motions, and
significant changes in status shall be made
immediately to both Risk Management and County
Counsel as designated above.
B. Billing Controls
1. At the outset of each case, the contract attorney
shall submit a case budget outlining the estimated
costs of the discovery, experts and trial that are
anticipated to be incurred.
. 2. In the event that the proposed budget is to be
exceeded the matter should be referred by staff to
the Board of Supervisors for in depth review of
case progress, strategy and prospects.
3. When any file has reached a total billing of
$50,000.00, the contract law firm shall be _
required to report to Risk Management and County
Counsel.
4 . At each subsequent increment of $50,000.00, the
contract law firm shall be required to advise Risk
Management and County Counsel.
5. In the event, the contract law firm fails to make
a report at each $50,000.00, Risk Management shall
remind them of the need to make such report.
6. Risk Management shall continue to review the
billings of Contract Counsel to make sure that
appropriate billing practices are followed.
7. Billings should be itemized by . 1 hours describing
the activity or service being rendered.
8. No interoffice consultation charges shall be
allowed.
9. Senior Partners can assign work to one associate.
Assignments to more than one associate requires
advance approval from Risk Management or County
Counsel.
10. only one attorney may be bill for attending
depositions, settlement conferences, motions,
trial or other appearances without the prior
approval of Risk Management or County Counsel.
11. No attorney outside the firm to which the case is
assigned may work on the file without prior
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approval of Risk Management or County Counsel.
12. All paralegal time must be itemized and cannot
exceed the negotiated limit (presently 45 dollars
an hour) except in medical malpractice cases.
13. Clerical costs such as word processing, indexing,
tabulating, scheduling and filing are not to be
charged to the County. These activities are
overhead and not properly billable.
14. Each written quarterly status report must conclude
with a total of fees incurred to date.
15. The Auditor's Office shall continue to monitor
legal billings and contract compliance in a manner
that does not compromise attorney client privilege
or work product.
16 . The Board will be requested to continue to Fund
the independent claims auditor for reviews on a
biannual basis if possible.
17 . If Risk Management or County Counsel have any
question about billing practices of a contract law
firm, it shall order an independent legal audit.
C. Pending Litigation Billing Review
1. When any legal billing has reached a total of
$50,000.00 the case shall be referred to the Board
of Supervisors for review.
2 . Periodic reviews shall take place at every
$50,000.00 increment thereafter by the Board of
Supervisors.
D. Case management
1. The Board of -Supervisors will review significant
cases or bills referred to them by CAO or County
Counsel or such cases as the Board of Supervisors,
on its own motion, deems appropriate for review.
2. The staff may request Board of Supervisors review
in any appropriate case.
3. The present system of litigation status reports to
the full Board of Supervisors of pending
litigation shall continue as the above suggestions
are in addition to current practice.
C:\WORK\FINANCB.CM2 6
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ CALJFORNIA
Date: May 7, 1393
To: Board of Supervisors
From: VICTOR J. WESTMAN, County Counsel
Re: Pro Bono Legal Services For County Benefit
By its order, the Board of Supervisors has directed that legal
firms who have performed substantial compensated legal services for
the County during the preceeding three year period should be
requested to indicate their agreement and availability to provide
some pro bono legal services for the County. As directed, this
office has contacted the law firms of Rosen, Bien & Asaro; Crosby,
Heafy, Roach & May; and Morrison & Foerster - all of whom have
indicated they would be willing to provide some pro bono legal
services (or continue that provision) within certain parameters.
All three firms were concerned that they retained their
discretion to determine if any County request for specific pro bono
legal services meets their individual firm's criteria for the
acceptance and performance of such work, no particular conflict
difficulties exist, and their firm resources are availble at that
time for the performance of the requested task.
Concerning the these three law firms, the Rosen office indicated
(subject to the aforenoted parameters) that the firm would be pleased
to provide a reasonable amount of pro bono legal services for Contra
Costa County's benefit. In further discussions with the firm, it was
indicated it was willing to accept some appellate work from this
office in areas involving challenges to County decisions. We are
presently in the process of determining cases and materials to be
submitted to the Rosen firm for its consideration and acceptance on a
pro bono basis.
The Crosby, Heafy, Roach and May law firm has indicated that it
would continue to consider providing pro bono representation of the
County subject to the above-noted criteria as into any particular
proposed legal task. As you are probably aware, this firm on a pro
bono basis has been defending the Board of Supervisors' decision
approving the proposed establishment of a Youth Recovery Facility in
the Marsh Creek area by the Bi-Bett Corporation.
Board of Supervisors 2 May 7, 1993
Finally, the firm of Morrison and Foerster has indicated that it
will consider (in appropriate circumstances meeting its criteria) the
assumption of the provision of some pro bono legal services for
Contra Costa County. We are in the process of considering what
particular legal matter or matters would be appropriate for
submission to that firm for its consideration.
As noted above, all three of these law firms were concerned that
whatever pro bono, work they agree to provide for the County meets
their firms, criteria for the provision of public benefit or civic
duty type legal services. We will proceed to arrange for pro bono,
servicess from these law firms and will report to the Board on the
services provided.
VJW:df
dfIOM: pro-bono
SANPOM JAY ROSEN t TELEPHONE
MICHAEL W.BIEN ROSEN, BIEN& AsARO APR 44161433-6630
ANDREA Q.ASARO 8199
ATTORNEYS AT LAW 3
ALLISON M.ZIEVE EIGHTH FLOOR 1ZTELEFAX
KATHERINE SHER 155 MONTGOMERY STREET 14161433-7104
STEPHEN M.UACOURASIt
ARTHUR L MARTIN(Of Cow*41 SAN FRANCASCO. CALIFORNIA 94104
April 6, 1913
Arthur Walenta, Esq.
Office of the County Counsel
Contra Costa County
651 Pine Street
Martinez, CA 94553
Dear Mr. Walenta:
This is in response to your letter of April 1, 1993. My
firm would be pleased to provide a reasonable amount of 1pro, no
legal services to Contra Costa County. our willingness to
undertake any particular assignment, of course, will depend upon
conflicts checks, availability of firm resources at the time a
request is made, and other such considerations.
I wish to remind you, as well, that as in the past, for more
routine matters, my firm is prepared to represent the County at
substantially reduced rates.
I remains our pleasure to work with the County of Contra
Costa.
Sincerely yours,
ROSEN, IEN & ASARO
I/AR;O
By: a se
SJR:mjs
I MEMBER OF THE CONNECTICUT AND DISTRICT OF COLUMBIA BARS,AS WELL AS THE CALIFORNIA BAR
CROSBY. HEAFEY, ROACH & MAY
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
1999 HARRISON STREET
700 SOUTH FLOWER STRCE%SUITE 2200 333 GUSH STREET,SUITE 2500
LO's ANGELES.CALIFORNIA 000#7 OAKLAND,CALIFORNIA 94612-3573 SAN FR"CISOO,CALIFORNIA 04104-2899
(213)6ee-5000 (510)763-2000 (445)543-6700
FAX(ZLA)age-6080 (415) 986-3400 FAX(415)301-6900
FAX(510)273-8866
RECEIVE0
121993
April 8, 199344jj#ft
°
Victor J. Westman, Esq.
Office of the County Counsel
County Administration Building
P. O. Box 69
Martinez, CA 94553
Re: Pro Bono Cases
Dear Mr. Westman:
I received your letter of April 2, 1993. We will, as we have in the past,
consider representing Contra Costa County on a pro bono basis in
appropriate cases that meet our criteria for such work. We believe programs
such as this offer benefits to our firm as well as to the County.
It is our hope and belief that our normal legal services rendered to the
County are at a competitive rate and that the quality of service and the
results are consistently excellent. Although your letter seems to link the
handling of complex matters that generate over $100,000 in fees with
participation in a pro bono legal services program, we view pro bono work as
a civic duty rather than linked to a volume of business. We would be happy
to consider continued pro bono'representation of the County once the policy
has been more clearly defined.
CROSBY, HEAFEY, ROACH & MAY
PROFESSIONAL CORPORATION
Victor J. Westman, Esq.
April 8, 1993
Page 2
Obviously, we look forward to working with you and the County on both
normal fee contracts and on thoselohn
appropriate or pro bono services.
y trul urs,
E. Carner� �" --
JEC/r
MORRISON &FOERSTER
SAN FRANCISCO ATTORNEYS AT LAW NEW YORK
LOS ANGELES WASHINGTON,D.C.
SACRAMENTO PLEASE RESPOND TO: DENVER
ORANGE COUNTY P.O.BOX SEV LONDON
PALO ALTO WALNUT CREEK,CA 9459644 BRUSSELS
SEATTLE Vt.CSrjVD HONG KONG
101 YGNACIO VALLEY ROAD SUITE 450 TOKYO
WALNUT CREEK,CA 94596-4095
TELEPHONE (510)295-3300 DIRECT DIAL NUMBER
TELER4CSIMILE (510)946-9912
(510)295-3310
May 7, 1993
BYMESSENGER
Victor Westman
County Counsel
Contra Costa County
County Administration Building
651 Pine Street, 9th Floor
Martinez, CA 94553
Re: Pro Bono Legal Services
Dear Vic:
As you know, Morrison&Foerster is extremely proud of its longstanding
tradition and commitment to pro bono service. We understand from your letter dated
April 2, 1993 that the Board of Supervisors may be developing policies requiring law
Cams doing work for the County to provide some legal services to Contra Costa County
on a pro bono basis.
We are enclosing for your information a few copies of our pro bono,
handbook which sets forth this firm's policies and describes its proud tradition as a
leader among major United States law firms in its commitment to providing pro bono
legal services. As this handbook indicates, we provide pro bono legal services
consistent with Morrison & Foerster's pro bono policies, and subject to resolving actual
or potential conflicts of interest. In 1992, Morrison &Foerster personnel performed
115,000 hours of pro bonowork. The average Morrison& Foerster attorney spent 110
hours on pro bono, cases.
h
MORRISON &FOERSTER
Victor Westman
May 7, 1993
Page Two
The firm has dedicated substantial pro Bono services to children's issues,
women's issues, health care, affordable housing, and AIDS. Here in Contra Costa
County, we have been extremely active in the Contra Costa Legal Aid program, and in
substantial contributions to other social and community programs. We have assisted
governmental agencies confronted with emergencies, such as the City and County of
San Francisco after the earthquake in 1989 and the City of Oakland after the fire in
1991.
Morrison &Foerster would of course be interested in participating in a
pro bono program the Board of Supervisors may establish to the extent that the legal
work contemplated is consistent with the firm's pro bono policies, and subject to the
resolution of any conflict issues that may be presented by a particular matter. We-look
forward to hearing from you on this matter.
Very truly yours,
7)�*4t A
David A. Gold
DAG:caj
Enclosures
cc: Pamela Reed, Managing Partner, Walnut Creek office
Barbara Reeves, Chair, Pro Bono Committee
w93643
OUTSIDE LEGAL COUNSEL CONFLICTS OF -INTEREST POLICY
It is the policy of the Contra Costa County Board of Supervisors, on
behalf of the County and all other governmental entities of which it
is the governing board, to prohibit the employment by any law firm
adverse to the County while simultaneously being employed by the
County, unless the Board is advised of, and gives specific consent
to, such adverse employment.
Any law firm responding to a request for proposal or contract offer
shall disclose all present and contemplated employment which is or
may be adverse to the County.
Any law firm which has been retained by the County which desires
employment which is or may be adverse to the County shall transmit a
statement of such desire to the County Counsel prior to undertaking
such employment. The statement shall include a description of the
employment and the reasons, if any, why the County should consent.
The County Counsel will forward the request to the Board of
Supervisors with recommendation for action. '-
If the Board of Supervisors declines to consent to the employment,
the law firm shall decline any such employment or shall not represent
the County. The authority to give consent of the County is not
delegated to any office or employee of the County.
The County recognizes that this policy may exceed the Rules of
Professional Conduct 4-101 and 5-102 of the State Bar of California.
Where applicable, law firms employed by the County shall comply with
such Rules in securing necessary consent from their other clients.
Agency and Department heads are directed to disseminate this policy
to currently employed counsel and include a statement of this policy
in future requests for proposals and contracts with outside counsel.
Specifically, and in addition, a law firm employed as bond counsel
cannot represent, in the bond issue or any other matter, any other
participant in the bond issue without specific consent of this Board.
EXHIBIT L
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