July 27, 2014
Today’s Cincinnati Enquirer featured a significant article on our firm and our public interest law practice. In all, I think writer James Pilcher did a fair-to-good job with the story. But of course they are trying to sell papers, and thus create “controversy” where none exists.
We were invited by the new, reform-minded Board in the Northwest School District to submit a proposal for legal services. We assembled a great team and a strong proposal, and won the bid. The entire process was conducted with RFPs and in public. Our team won a majority vote for the contract. The notion that there was something improper in the process or the selection is entirely unfounded.
First, some balance about my firm, and for this I don’t at all fault Mr. Pilcher. He would have no way of knowing what else my firm does. Our firm generates lots of headlines for our Public Interest Law work. But less newsworthy is our important and significant transactional practice (corporate work, real estate work and estate planning work) and our commercial litigation practice (commercial dispute resolution, bankruptcy, and property tax valuation work). These each comprise a projected 40% of our firm’s income, and public interest litigation about 20%.
We carefully and aggressively pursue the practice of law in these two areas, with significant success. Our attorneys who practice in these areas are every bit as accomplished as our public interest lawyers.
Then, the public interest arena. It seems the reporters’ storyline of late has been the amount of fees we reap from this work, and it is significant. But the work underlying each of these victories is significant as well and spans many years. And, importantly, in each instance in which we have been awarded fees, the Congress or the Ohio legislature — for important policy reasons — has many years ago authorized or mandated “fee shifting,” meaning the losing government entity pays our fees in the end. This litigation falls in the following categories:
- Violations of the US Constitution;
- Illegal expenditures of tax dollars by cities and counties in Ohio;
- Other illegal conduct by cities and counties in Ohio;
- Violations of Ohio Open Meetings laws; and
- Violations of Ohio Public Records Laws.
In each instance, either the governmental entity settled a claim, in which cases the fee awards are usually very small, or they fought to defend their unconstitutional or illegal conduct, unnecessarily running up fees and expenses that they full well they knew they would have to pay if they lost.
The legislative decision to allow or require fee shifting is important as a matter of public policy because without “fee shifting,” the government entities would get away with their illegal conduct, and no one could afford to challenge their conduct in these areas.
Such is the case with Ohio Public Records Law. The Ohio Supreme Court in two decisions in January effectively neutered what was a well-written statute by all but eliminating attorney fee awards. That’s their decision, but as a matter of public policy few attorneys will pursue this area of law until the statute is fixed. Thus, state and local governments now will be able to avoid disclosing public records.
Later, we will write in more detail about a few of these public interest cases, but I wanted to specifically address two mentioned in the sidebar to the article: Preschool Development v. City of Springboro and the Kings School District case.
The Preschool case was a Fifth and Fourteenth Amendment “takings” case of which we are especially proud. The City of Springboro one day — with no advance notice to our client — closed our client’s “curb cut” on S.R. 73, the main route through the City, and required them to access their preschool building through a defective easement (not a public road) on adjoining property. The City had, with this precipitous action, significantly impaired the value of our client’s property.
When we were retained, we first gave Springboro the chance to settle — pre-litigation — by fixing what they had done. Instead, the City decided to fight to the death over the issue. We sued at the Ohio Supreme Court — and lost! And then proceeded into Federal Court in a procedurally and substantively difficult case. After about three or four years of legal battles, Judge Spiegel ruled in our client’s favor and he was made whole, including all of the legal fees expended to fight this battle. Only weeks after this important decision, our client succumbed to a prolonged battle with cancer.
Another battle mentioned in the article is about the five special needs children we represent in the Kings School District that — with the full knowledge of the administration – were abused day in and day out by the teacher in their classroom. The cover up extended into the administration, the County Sheriff and Prosecutor, and the Ohio Department of Education. These parents could not possibly afford to litigate these claims — and stop this kind of abuse — without some hope of fee shifting or financial recovery. How else is this type of behavior to be remedied?
So, the whole story cannot be told by these “in depth” articles in the newspaper, but we love what we do and enjoy making a difference for our clients in the public interest law arena.