Musings: Calling All (Free) Lawyers

Kauai County is now accepting applications from attorneys who are willing to wage a pro bono defense of its highly publicized pesticide/GMO disclosure bill.

Pioneer, Syngenta and Agrigenetics (DOW) filed a complaint in federal District Court last Friday seeking to overturn Bill 2491 (now Ordinance 960). The agrochemical companies — three of five agricultural enterprises on Kauai affected by the new law — claim it's discriminatory, pre-empted by state and federal law, irrational and a violation of the county's own charter.

As the bill was making its way through the County Council and past a mayoral veto, a number of attorneys promised a pro bono defense if the county got sued. Now it's time for them to ante up.

In a Nov. 5, 2013 guest commentary in The Garden Island, bill co-sponsor Councilman Gary Hooser wrote, “We have taken prudent steps to cover our legal bases.” He went on to claim:

Local attorney and former head of the Kauai Bar Association Teresa Tico, and nationally known attorney and head of the Center for Human Rights and Constitutional Law Peter Schey, have both agreed in writing to defend the County of Kauai pro bono should Bill 2491 be challenged in court.

In addition, Paul Achitoff of Earth Justice and George Kimbrell of The Center for Food Safety have also offered in writing their pro bono representation of community groups who would join as intervenors in defending the county position.

Achitoff was previously quoted as saying “he believes the county attorney was biased in his analysis, overestimating the strength of the seed industry’s argument. “A lot of his opinion reads as if he cut and pasted from the industry’s lawyers, rather than doing some real work and figuring out how is this case really likely to be decided in court,” Achitoff said.

I'll be curious to see how Achitoff drafts his response to the actual complaint. Assuming, of course, he is selected to work with the county attorneys he previously tried to discredit.

Though the county previously used pro bono legal services in the dispute between the Police Commission and the mayor over who has authority to discipline the chief, it's not a common occurrence. I asked county spokeswoman Beth Tokioka how the process would work:

Allow me to preface our response with an explanation of how legal services must be procured pursuant to State Procurement Law.  Legal services fall under a category of "Professional Services,"  as defined in HRS 103D-304 and Hawaii Administrative Rules Sub Chapter 7,  for which we issue an annual solicitation of firms who wish to be considered for special counsel services during the fiscal year.  This solicitation must be issued in June of any given year, and the list of firms who respond and are deemed qualified for consideration will be developed for consideration for the period of July 1-June 30 of the following year.  Should funding for special council services be approved at any time during the year, the list is reviewed and a selection committee will meet to rank firms based on the needs of the case.  The issues pertaining to cost are subject to negotiations between the Office of the County Attorney and the highest ranked law firm.  While pro bono services are rare, there is nothing in the procurement code that disallows a selected law firm or attorney  from offering pro bono legal services.

The use of pro bono attorneys for special counsel purposes is not the norm.  In the case of the Kauai Police Commission, the firm hired to provide special counsel services to the commission was selected via this process and was initially paid for its services.  Once the initial ruling came from the court, the firm offered to provide services for appeal on a pro-bono basis.  The important thing to remember in this instance is that the original procurement was NOT for pro-bono services.  The contract was amended in February 2013 to reflect the extension on a pro-bono basis.

In the case of Ordinance 960, the issue of pro bono special counsel services is clearly beyond the norm in terms of procurement.  During the course of the debate and deliberations  with regard to Act 2491, representations were made by certain law firms that defense services would be provided to the County pro bono, in the event that the County was sued.  As stated earlier, the County procures all professional services special counsel requirements (of which attorneys for special counsel are included) in June of each fiscal year for the subsequent fiscal year.    Again, this is required by statute.   A new procurement for the same services can be pursued if the department head conveys to the procurement officer that new or unmet needs have arisen that mandate a new procurement.  In the case of the anticipated special counsel needs for Ordinance 960, it was determined that the potential for pro bono legal services met the requirements  of a “new” condition, thus allowing for a subsequent competitive procurement to pursue such services.   As such, the County will be letting a formal and competitive solicitation for professional services to pursue the services of pro bono special counsel to defend the County regarding Ordinance 960.  The solicitation is being let competitively to provide the opportunity for all interested  law firms to submit resumes and letters of intent for consideration.  

Please note that in our solicitation, "pro bono" will be clearly defined as “professional work undertaken voluntarily and without payment as well as donation of all related litigation and collateral costs and expenses, including but not limited to court costs, court reporter costs, travel and per diem expenses, copying expenses, legal research expenses, communication expenses, expert fees.”

In the event that there are no qualified responses to this new solicitation, we will need to then revert to the previously solicited list of qualified firms and negotiate fees with the highest ranked firm out of a selection committee process. 

I, and many others, including the county attorney's office, have criticized serious weaknesses in the bill, which was drafted and endorsed by pro bono attorneys who deemed it “bullet proof.” So what if they were wrong in their assessment? Or what if they simply don't have the legal chops to wage a winning defense against the chem corps' team of formidable attorneys? Who will pay then?

I posed that query to Beth, and got this response (emphasis in the original):

The Plaintiffs in the case “pray that [the] Court: award Plaintiffs their reasonable attorney’s fees and costs” amongst other things. This means that the County as the Defendant would be responsible for such amounts.

Meanwhile, the Council has agreed to reconsider the resolution authorizing an Environmental and Public Health Impacts Study (EPHIS) — the mechanism that is intended to assess whether the practices of the biotech seed companies are harming people and nature.

As I've previously reported, the EPHIS is extremely wide-reaching, proposing a scope of work far beyond the $100,000 allocated for the process and the remaining one-year life span of the authorizing resolution.

Councilwoman JoAnn Yukimura expressed concerns that the Council had gone too far afield in directing a joint fact-finding group to examine and report on findings regarding “economic impacts, food sustainability and environmental justice.”

Her colleagues agreed on Wednesday to revisit the resolution, which is set for a special meeting on Jan. 22.