For the past 13 years, our city has been getting legal counsel from Rod Kaseguma and his Bellevue law firm. By all accounts, he and his colleagues are superb attorneys, and while the hourly rates may seem high to those who don’t buy legal services every day, they are, in fact, strikingly modest. As long as the city engages outside legal counsel, we don’t think it could do better.
Yet as the city’s legal costs soar, mostly because of the volume of litigation, we think it’s high time to revisit our sole reliance on outside counsel, and to bring at least some legal work “in house” through an on-staff attorney. The reasons have nothing to do with competence, everything to do with structure.
Retained counsel answer the questions asked of them. But that presupposes somebody knows what the question is, or that there even is a legal question. In-house attorneys, on the other hand, aren’t dependent upon somebody else’s spotting a potential problem. They can become part of the city’s problem-solving team – suggesting legally viable approaches up-front, rather than being in the reactive mode of defending what the decision-makers have already decided.
For example, the problem of battling the homogeneity typified by fast-food restaurants might have been approached through legally permissible rules on signage and building appearance, much easier to defend legally than the fast-food ordinance that led to the Papa Murphy’s suit. Preserving green space, wildlife habitat and recharge areas might be approached by tuning up rules on lot coverage and critical areas, rather than hacking through the difficult and costly legal thicket of an open-space set-aside.
The city often – maybe almost always – can accomplish what it wants to in a legally acceptable way. But to do that, it needs legal thinking in its department-head meetings as surely as it needs the perspectives of budget, planning and law-enforcement. City hall needs someone to whom staff, department heads and council members have instant access – simultaneously, if need be.
We acknowledge the concern that whoever occupies such a position – particularly if that person is a Bainbridge resident – will bring a point of view based on who and what the attorney already knows, who appointed him or her, and whatever leanings that person may have on island issues.
While those observations may be accurate, they are just as pertinent to the municipal judge, the hearing examiner, the city administrator, planning director, finance director or public works director, all of whom live on the island. While they all bring their own knowledge, associations, predilections and biases to work every morning, they also bring with them their obligations to set those biases aside and discharge their duties in a professional manner. We see no reason why an attorney would be any different.
Fortunately, going in-house isn’t an irrevocable decision. The city would still need a relationship with outside counsel – preferably with Kaseguma’s firm – and could always revert to the present arrangement. In fact, the best possible way to test the waters would be if Kaseguma himself or one of the other attorneys that do a lot of Bainbridge work would agree to come in-house for a year or two on a test basis.
The city’s outside attorneys are the best it can find. But as the crush of litigation suggests, there may be a better answer. The in-house alternative deserves a look.
