Let's keep this confidential, shall we?
In the first week of May, as 9News viewers got an unappetizing eyeful of Denver employees stuffing their faces with donuts when they should have been on the job, at least someone in the city was working. In fact, that someone at the City Attorney's Office actually picked up the phone and dialed the law firm of Musgrave & Theis, seeking outside advice on how to handle Paula Woodward's latest' blistering of the Department of Public Works.
And money--taxpayers' money--was no object.
This was not the first time Denver officials had tried to blame the messenger for their own incompetence. Or the last. Recently the City Attorney's Office hired the law firm of Bookhardt & O'Toole--underwriter's counsel on the DIA bond issue--to investigate the possibility of suing lawyer/reporter Dan Caplis for libel. And what had Caplis dared suggest? That in failing to disclose the true and sorry status of DIA's construction, the city's bond sales might be illegal. That the Securities and Exchange Commission is currently investigating that very possibility apparently did not dissuade the city from seeking revenge--or remind Bookhardt & O'Toole that it might have a conflict on the Caplis case.
Such crusades do not come cheap. On May 5 alone, one Musgrave & Theis attorney billed Denver 6.1 hours ($762.50 at his going rate, which would buy a lot of donuts) to review the complaint filed by KUSA when the city demanded its unedited tape; to meet with four city officials, including deputy city attorney George Cerrone and Darlene Ebert, a lawyer with the office who'd handled the city's response to two previous Channel 9 reports; to chat with workers at the wastewater management division, the target of this particular series; to speak again with Cerrone--this time on the phone; and to review pertinent legal material.
At the same time, other members of the firm billed 6.7 and 6.2 hours, respectively, for more research and meetings--including internal confabs to "divide up research and draft assignments." The grand total for one day's work: $2,244.
There were many more such days, and legal bills stretching well past $40,000, before the city finally came to its senses and decided to drop the demand for Channel 9's tapes.
The city does not retain outside law firms just when it wants to muzzle the media, though. After hiring Musgrave & Theis (which had already handled some DIA matters for the city) to pursue Channel 9, Cerrone explained that the City Attorney's Office frequently uses legal help and builds those fees into the budget every year.
In the first three years of the Webb administration, the city spent more than $10.5 million on outside attorneys. And that's not counting the millions of dollars lawyers have collected for acting as bond counsels on DIA offerings.
The figure is less impressive when almost half is subtracted for fees paid to the well-connected (and unfortunately named) firm of Patton, Boggs & Blow, for its remarkably labor-intensive work on the Lowry Landfill. And in some cases--say, when Denver is negotiating multi-million dollar deals with United Airlines and BAE, companies whose legal teams have a great deal more savvy than the city's, judging from previous contracts--Denver residents should welcome the injection of outside expertise.
But we may never know again where the city is spending its legal budget--or why.
On Friday, City Attorney Dan Muse--apparently all on his own, without the aid of high-priced counsel--decided that the payments made by his office to outside law firms were off limits to the press...and the public.
"Under the Colorado Public (Open) Records Act," Muse wrote auditor Bob Crider and aviation manager Jim DeLong, "the custodian of the subject records shall deny inspection of records if prohibited by the rules promulgated by the Supreme Court.
"The Colorado Rules of Professional Conduct, adopted by the Colorado Supreme Court, prohibit revealing any information relating to the representation of a client The rules also require attorneys to exercise reasonable care to prevent the attorneys' employees, associates, and others whose services are utilized from disclosing such information.
"Thus, the Open Records Act requires you not to disclose any such information relating to the legal representation of the City and County of Denver, whether such representation is by the City Attorney's Office or Special Counsel retained pursuant to the Charter. Willful and knowing disclosure of such records in violation of the Act constitutes a misdemeanor under Colorado law.
"As City Attorney, I am advising you of your obligations under the Act to prevent illegal disclosure or inspection of records within your custody or control. Such records would include, but not be limited to, invoices or billing statements of Special (outside) Counsel, copies of vouchers, voucher requests, receipts, Form 90s, and summaries of payments."
The letter was copied to Cerrone and Lee Marable, the city lawyer who oversees DIA's legal matters. At the same time, Muse sent another missive to the chair of the Colorado Bar Association Ethics Committee, asking for a second opinion.
They are not easy to come by. Several otherwise reasonable lawyers I contacted declined to interpret Muse's opinion, citing potential conflicts: They, too, had been retained by the City Attorney's Office for legal work.
But you don't need a law degree to make a ruling.
Translated from the legalese, here's what happened: The City Attorney's Office received another request from a pesky reporter--in this case, Channel 7's John Ferrugia, who broke the Caplis story and now wanted the records for all payments to outside legal counsel for 1993 and 1994--and, rather than comply, came up with a startlingly innovative interpretation of the Colorado Supreme Court guidelines that are supposed to govern an attorney's comportment. In order to save those outside attorneys--lawyers collecting millions from Denver each year--from breaking client confidentiality (and the rules), the city will refuse to give out any client information. Even work done by city attorneys for the city will be kept secret--to protect the client, Muse reasons.
You might think that, as a resident of Denver, you are the client.
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