Act 188 of 1954 (“Act 188”) is a statute that many townships use to finance many improvements using special assessments ranging from lak...Read More
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Michigan townships currently receive legal counsel from more than 250 attorneys and law firms around the state. Township attorneys and law firms come from all parts of Michigan, and reflect a broad range of sizes, fees, services and experience. This E-Letter offers practical advice on what kinds of information you should request and consider when your township is trying to choose a township attorney, and how you can decide which attorney or law firm may be right for your township.
When you hire township attorneys or other professional services, using competitive bidding on price alone is not advisable. Qualifications-based selection is the preferred method for choosing attorneys and other professionals. This method allows the retention of professional services from the most qualified firm, with secondary emphasis on price.
One problem with using price alone is that a low bid may reflect a lack of knowledge or experience. When hiring attorneys, you rarely know what your specific legal needs will be at the time the proposals are received. Since your possible legal needs are often ambiguous in the beginning, bids are frequently too low, too high or conditional. You should expect your chosen attorney to help you define your goals, and then help you to achieve them. Price bidding has no direct relevance to defining or achieving your legal objectives. Price bidding also discourages high-quality service.
REQUEST FOR PROPOSALS (RFP)
The selection process should begin with an RFP, which should disclose as much detail about your needed services as possible. More information in your RFP will allow attorneys to make more complete and relevant proposals. Send the RFP to attorneys and firms recommended by other townships (call around to other township officials or the MTA). At a minimum, the RFP should solicit relevant information about the attorneys, their particular qualifications and experience with the kinds of matters you will likely face, and their fees and costs. You should also consider requesting the information discussed below.
Experience. Ask each attorney candidate to provide brief resumes for the attorneys who would provide legal services to the Township. It’s important that you know the background of the lawyers who will actually be working for you, not just one lawyer who may be managing and delegating work to less experienced lawyers, since ranges of experience within a law firm may be considerable. Each attorney candidate should also provide a brief history of its representation of townships. How many years has the attorney or firm been representing townships? If the candidate is a law firm, ask them to state the average number of years of township representation for their partners (owners) and for their associates (employees).Expertise. Not every lawyer is equally experienced in all areas of law. Ask each candidate to provide a summary of the attorney’s and law firm’s experience in the following areas, which are common legal issues faced by townships: general law of townships and charter townships; zoning and land use law; public sector labor and employment law; environmental law; condemnation; public utility, public works, and construction law; practice before the Michigan Tax Tribunal; elections; real property acquisition; litigation of claims against townships; drafting and enforcement of township ordinances; property tax assessment and collection; telecommunications law; annexation and detachment; and appellate law. If you are looking for an attorney to handle a particular kind of problem, ask them to list similar matters they have handled, including the townships they represented, and review their performance by calling their past township clients.
Responsiveness. The biggest complaint most township officials have with their attorneys is “they take too long to get back to me.” Granted, not every problem can or needs to be solved today. But townships face demands, and there are times when you simply must get quick action. You must be sure that you will be treated as an important client of the attorney and firm, and that your matters will not be put on the “back burner.”
Will the attorney candidate always be available and accessible when your township needs legal action or advice? Can the candidate respond immediately when such responses are necessary? If your principal attorney is unavailable, or becomes incapacitated, is there a competent backup attorney in the candidate’s firm who can move quickly to fill the gap? How deep is the “bench” of the legal team that is representing you? Be sure to ask about this when you talk to each candidate’s references.
Reputation. Several state and national organizations rate attorneys and give special recognition to very high-quality lawyers. Most established attorneys and law firms are rated by Martindale-Hubbell, which rates lawyers and law firms on a 1 -5 scale (5 is “Preeminent”): (http://www.martindale.com/Find-Lawyers-and-Law-Firms.aspx). Another rating service is Avvo, which uses a 1-10 scale (10 is “Superb”): (http://www.avvo.com/find-a-lawyer). Michigan Superlawyers recognizes the top attorneys in each of 70 practice areas in Michigan: (http://www.superlawyers.com/advanced_search). Best Lawyers in Americasimilarly lists the top lawyers across the nation in a long list of practice areas: (http://www.bestlawyers.com/Search/) Ask your attorney candidates if they are rated or listed by these organizations.
References. Ask each attorney candidate to list all or a representative selection of the townships they have represented, together with contact information. Before hiring any lawyer, you should talk to these references about their experiences with the lawyer. You can gain a lot of useful information from references, who might help you decide whether an attorney is right for your township.
Fees. How and what will the Township be charged for each candidate’s services? Most township attorneys charge for the bulk of their services based on hourly rates. Of course, you want to know what those rates will be. But sometimes the stated hourly rates are not that helpful for a number of reasons. A lawyer may have a low hourly rate, but not be very efficient. Will he or she need to spend hours researching a matter because of a lack of experience and expertise with such matters? An attorney with a clear command of a legal issue may charge you less, even if the hourly rate is higher. And here is an unpleasant truth: not all lawyers use 60 minute hours; some state low hourly rates and then “mark up” their hours to adjust for the claimed “value” they provide you.
Talk to the candidate’s past township clients about the attorney’s invoices. Ask the attorney for estimates of total fees before work is performed. Don’t be afraid to ask for and explore alternatives to hourly billing for legal services, such as a flat fees or not-to-exceed fees. Examine your attorney’s bills carefully, and do not be afraid to ask questions if you are confused about why services may be costing more than you anticipated.
Costs. Fees do not tell the whole story. What kinds of costs and disbursements will the attorney charge you in addition to the hourly rates? Do the hourly rates include all the “overhead,” or will you be charged extra for things like mileage, car rentals, faxes, emails, computerized research, telephone charges, meals, overtime and photocopies? These can add up significantly. There are some legitimate costs you should expect to reimburse in addition to legal fees, such as costs for expert witnesses, title work, messenger and overnight delivery services, process servers, court transcripts, court and government filing fees, outside printing, certified mail, publication and other third-party charges, but be sure you know what they are.
Also consider that some law firms will provide you extra services that are included in their hourly fees, at no additional charge. This may include services like newsletters, bulletins, important email alerts, free workshops, webinars, training videos and even social events. Some attorneys also contribute their time and financial support to the MTA and MATS, which benefits your township. They may be speakers for MTA and MATS workshops, provide complimentary responses to questions on MTA’s Community Connection, sponsor MTA and MATS meetings, write articles for the MTA magazine or participate as an MTA allied service provider or MATS business partner.
Technology. To deliver affordable and high quality legal services, some township attorneys make a significant investment in improved technology. Legal research that used to take hours or days can now be accomplished in minutes through proprietary legal research databases. Document assembly systems can allow lawyers to prepare custom documents in a fraction of the time previously required. When combined with a high level of expertise, these technological innovations can greatly reduce your cost of legal services. Communications technology is also important for township attorneys. Email has become essential to affordable legal services, as is having “smart” cell phones. High-definition video telecommunications systems allow lawyers to participate in remote meetings, saving the substantial costs of travel time and mileage. Ask your candidates about their technological investments and capabilities, and how they can be used to reduce your overall legal expenses.
Security also goes hand-in-hand with technology. Attorneys should implement adequate security measures to protect confidential information, such as social security numbers. They should have a shredding policy for written documents. Digital data should be protected by authentication and encryption, and must be regularly backed up so that hardware failures or attacks will not cause the loss of essential data.
Conflicts of Interest. Always inquire about a lawyer’s potential conflicts of interest. Ask them to describe any actual or potential conflicts of interest they may have in representing the township. If an attorney practices in your local area, does he or she represent existing private clients who might have disputes with your township in the future? Ask what system the attorney uses to avoid conflicts of interest with townships. Request each candidate to describe their recent or proposed litigation against townships or other municipalities to assess whether there might be a chance of a conflict. Conflicts of interest can be difficult and expensive, since they may require your attorney to withdraw from representing you when you need an attorney the most. Under the rules of attorney ethics, if one member of a law firm has a conflict of interest, every member of that firm has the same conflict, so you cannot avoid the conflict by switching to a different attorney in the same firm.
Discipline and Malpractice. You should perform due diligence to determine whether the attorney or firm has a history of professional discipline or malpractice. Ask each candidate to list any recent (within five years) malpractice suits in which the firm or any of its attorneys was found to be at fault. Also request each candidate to report any state bar grievances against the firm or any of its attorneys within the last five years in which disciplinary action was taken.
Other Issues. If other considerations are important to your township, don’t hesitate to ask about them. For example, is the firm is an equal opportunity employer? Do they follow the state bar’s statement of goals for minority hiring and retention? What contributions do the firm and its members make to civic, bar and charitable organizations, including volunteer and leadership activities?
DEVELOP A SHORT LIST
After you collect a number of proposals from various attorneys and firms, you need a system to review all the information you have gathered. One good approach is to appoint a committee to review the proposals. The township board should provide the committee specific evaluation criteria in making their selections. Some candidates may not meet minimum requirements, and can be eliminated early. The committee should eventually select a small number of the best candidates (3-5) for further interviews.
RANK THE CANDIDATES
Working from the committee’s short list, the entire township board should interview each of the candidates. If the candidate is a law firm, be sure to interview the attorney or attorneys who will actually be working for you. Contact each candidate’s references and past clients. If the purpose of the engagement is a specific type of legal project, consider visiting past project sites the candidate has handled and talk with community members about whether the projects were successful. After eliminating any candidates who are not well-qualified, and based on open board discussions about the comparative advantages and disadvantages of each candidate, the township board should rank the remaining candidates by board consensus from top to bottom.
NEGOTIATE THE AGREEMENT
Starting with the highest-ranked candidate, the committee and that candidate should work together to better define the scope of services that the attorney will provide. The committee and the chosen candidate should attempt to agree on appropriate budget constraints, goals and schedules, and further refine the scope of services if necessary. All of this needs to be incorporated into an agreement between the township and the attorney, together with agreed-upon fees and costs, so that the attorney can be retained to represent the township. If unable to reach an agreement with the top-ranked candidate, begin negotiation with the next-ranked attorney, until an agreement is reached with one of the candidates.
— Bill Fahey (517) 381-3150 firstname.lastname@example.org
Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
Copyright © 2014 Fahey Schultz Burzych Rhodes PLC
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