OPEN AND SHUT-UP CASE

The Denver City Attorney's Office handles many legal matters.
None of them are divorces.
But judging from the city's slam-bam response to recent open-records requests, you'd think reporters had been asking City Attorney Dan Muse to spill the beans not just about Bruce Benson, the gubernatorial candidate whose divorce had been sealed in Denver District Court, but also about Muse's split from anchorwoman Reynelda--with the sordid details of Wellington and Wilma Webb's first marriages thrown in for good measure.

That's not what reporters are demanding, though. They're looking for something even more sordid, even more sinister: They want lawyers to rat off other lawyers.

They want to know what the City Attorney's Office hired outside attorneys to do--and how much it paid them to do it.

The public clearly has a right to know. After all, the city is paying those attorneys' bills with taxpayers' money--millions of dollars of it.

But the city is treating this information as though it were more precious then Oklahoma crude, doling it out drop by drop, more grease for that squeaky wheel. And in fact, as last week's events unfolded, the whole deal was certainly oozing...something.

At first the city attempted to shut the door on Colorado's open-records law altogether. In warning City Auditor Bob Crider and Aviation Manager Jim DeLong to refuse reporters' requests for lists of payments to outside legal counsel, in a September 23 letter Dan Muse suggested that to disclose such information might actually be a "misdemeanor under Colorado law." Muse, it seemed, had just taken down his law books and conveniently discovered that the Colorado Open Records Act--designed to protect the public's right to know--was at odds with recent changes in the Colorado Rules of Professional Conduct, which prohibit lawyers from disclosing any information about a client without that client's permission.

Those rules of conduct, laid down by the Colorado Supreme Court, are meant to guide the behavior of lawyers. They are not law.

The Colorado Open Records Act is.
As the client, the city could certainly release those outside attorneys from any vow of confidentiality, thus protecting them from the unlikely--although delicious--possibility that they might be charged with a misdemeanor violation because the city had revealed information about their client, i.e., the city.

Instead, Muse took it a step further, ordering Crider and DeLong to shut their files and zip their lips, not just in regard to the work of special outside counsel, but also concerning work done by the City Attorney's Office for the city. And in the meantime, he told them, he had asked the Colorado Bar Association's ethics committee for a second opinion. (According to that committee, all the queries it receives are--guess what?--confidential.)

Crider got his own second opinion--yes, from an outside attorney--a lot faster. But then, Crider is not a lawyer. He is the city auditor, and he considers the public to be his client. "It is not my intention to break the lawyer/client privilege, but I also feel it is important that the records I maintain in this office be made available and as easily accessible as possible to the public," he wrote Muse last Thursday, adding that he had always taken the position that once a bill was paid, the amount and the voucher itself were public record.

Crider, too, had taken a look at the public-records law and had noted that it allows the courts to resolve the issue of whether a document is public record (as it did in the case of the Benson divorce file). "Dan," he concluded, "as I read this, we have the opportunity to go into court and let a judge decide rather quickly if we can give out the information the press wants."

Muse declined the invitation. By then, Mayor Wellington Webb--who is not an attorney, either, but who preceded Crider as city auditor--had chimed in with his own opinion. "It appears that some information concerning the legal representation of the City and County of Denver by special counsel has already been obtained and has already been displayed to the public," the mayor wrote his city attorney. "Some of this information is inexact and misleading, to say the least." And so, Webb ordered "the disclosure of only statistical and comprehensive financial information concerning the legal representation by special counsel...I emphasize that this action I take today is so that our citizens will have correct and accurate information by which to judge their municipal government and to make decisions regarding it."

With Webb's letter in hand, Muse again wrote Crider, telling him of the mayor's decision and adding that, "through no particular fault of your office, records relating to `legal services' maintained in the Auditor's Office are the source of a great deal of that misinformation." He attached a handy exhibit listing the total paid to outside attorneys during the Webb administration, a grand total of $10,812,584.

So much for "inexact" numbers that might have misled the public. Using figures from the auditor's office--obtained before its muzzling--Westword last week pegged the amount spent on outside counsel at "more than $10.5 million," almost half of which went to Patton, Boggs & Blow for work on the Lowry Landfill case (Muse gives that amount at $5.2 million). And that's not including the fees paid to bond counsels.

In other words, the public received accurate information.
It just did not receive enough of it. And if Webb and Muse have their way, the public never will. They'll never know, for example, why Trimble & Nulan--a law firm that counts connections to Webb and Muse chief among its credentials--was paid $50,000 in April. Or why the venerable 17th Street law firm of Holme, Roberts & Owen collected twelve times that for work related to the airport.

There's one way around this impasse. Someone can sue the city to release the records. And in the ultimate irony, if a judge determines that the records are public, the city must fork over the cost of the plaintiff's attorneys.

More money for outside attorneys.
See you in court.

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