Sunday, February 10, 2013

Principal and Agent

The relationship between an attorney and the client has many different characteristics.  The attorney acts as an advisor seeking to understand the goals of the client, and then outlining different alternatives on how to achieve those goals.  Occasionally, the attorney is merely a scrivener, recording the client’s actions in a manner that puts them in the best light.  In litigation, the attorney is the chief strategist trying to achieve the best result under the constraints of the facts, the law, and the resources the client is willing to spend on the case.  In all events, the attorney is the agent, obligated to perform, within the code of ethics, the principal’s (client’s) directions.

At its meeting as Utility Board on January 16, 2013, City Council directed the City Attorney’s office to prepare for consideration at its next regular meeting on January 22, 2013, a charter proposal to make the Utility Board an elected board.  Recently, I obtained a copy of the presentation City Attorney Chris Melcher prepared for delivery to Council at that meeting concerning that proposal.

The presentation is striking in several aspects.  From the first page it attacks and impugns the direction given to the City Attorney by the Utility Board.  In places it is whining about having only two business days to carry out the direction by the Utility Board.  (In all my years on Council, I do not recall a single incident when former city attorneys Jim Colvin or Pat Kelly complained about the amount of time given to complete a task.)  It is argumentative: Melcher does not take direction from Council, nor does he attempt to objectively outline pros and cons of the proposed action; his presentation is a broadside attack on the proposal.  This is not the work of one taking direction from his client; this is the work of one arguing with City Council.  It is the work of an attorney publicly telling his client where to stick it.

In the past, when a Council appointee committed such an act, the conversation in the back room was instantly transformed from “Should we let the appointee go?” to “How many days does the appointee have left?”  Under the new charter, Council no longer has any authority over the length of the city attorney’s tenure.  Once the appointment is approved, only the mayor can terminate the attorney.  Nonetheless, reading between the lines of Melcher’s memo, it’s easy to see that there is no working relationship, no mutual respect between Melcher and Council.  Perhaps that is why, starting tomorrow, there will be a new person sitting in the city attorney chair when Council meets.

This is a step in the right direction.  I have a lot of respect for Wynetta Massey.  She has worked in the City Attorney’s office for many years.  She is a person of integrity and exceptional legal skills.  Nonetheless, she is still an employee of Chris Melcher the mayor.  When push comes to shove, she will face the dilemma of following orders or seeking to serve Council.  Unless Council is willing to make her its employee, under the city’s current leadership, I fear she is in a situation where she is destined to fail.

[P.S.:  I cannot figure out how to post a copy of the presentation with this post.  If you would like a copy, email me; I will send it to you.  RP]

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