Opinion
2003/12523.
Decided August 29, 2006.
Michael Pilarz, Esq., Buffalo, New York, Attorney for plaintiff, Wiggin Dana LLP.
J. Michael Lennon, Esq., Buffalo, New York, Attorney for plaintiff, Edward C. Cosgrove.
Paul B. Joyce, Esq., Colucci Gallagher, P.C., Buffalo, New York, Attorney for defendant, City of Buffalo.
I. Background
Plaintiff Wiggin Dana, LLP ("Wiggin Dana") and plaintiff Edward C. Cosgrove ("Cosgrove") commenced separate actions to recover the reasonable value of legal services performed by their law firms as attorneys for James W. Pitts, the former President of the Buffalo Common Council. Those actions were joined for purposes of discovery and trial.
Essentially, the plaintiffs contend that the defendant City of Buffalo ("City of Buffalo") is liable for a total of $150,154.86 in attorneys' fees and expenses on the theory that Mr. Pitts had implied authority to retain the plaintiffs to represent him in litigation against the City of Buffalo. That litigation challenged Local Law No. 8, which amended the City Charter to reduce the size of the Common Council from 13 to 9 members and implemented a redistricting program arising from the decennial reapportionment process. Local Law No. 8 also modified the manner in which the President of the Common Council was selected from a separately designated at-large seat voted upon by the electorate to a position elected by the Common Council from among its members.
The City of Buffalo answered, and the parties proceeded with discovery. Thereafter, the plaintiffs filed a Motion for Summary Judgment in the respective actions. The City of Buffalo opposed the motions and filed a Cross-Motion to dismiss the complaints and for the return of the $10,000.00 retainer sought in its counterclaim against Wiggin Dana. The City of Buffalo contends the $10,000.00 retainer given to Wiggin Dana was an unauthorized payment by the City Clerk at the request of Mr. Pitts. Mr. Pitts concedes that the Chief City Clerk paid the $10,000.00 retainer to Wiggin Dana at his request.
The record reflects that many of the underlying facts and the procedural history of the actions are not in dispute. Mr. Pitts executed a separate retainer agreement in August, 2002 with each plaintiff to represent him in litigation challenging Local Law No. 8 (Exhibits G and H to Joyce Affidavit). The plaintiffs commenced a lawsuit on behalf of Mr. Pitts in New York State Supreme Court in September, 2002. Thereafter, the motion seeking an accelerated judgment on behalf of Mr. Pitts was denied ( See Pitts v City of Buffalo, 298 AD2d 1003, 1004). In November, 2002, Local Law No. 8 was approved by the voters and the redistricting provision was implemented. Subsequently, the New York State Supreme Court action was dismissed, and the dismissal was affirmed on appeal ( Pitts v City of Buffalo , 19 AD3d 1030).
In addition to the retainer agreements, the plaintiffs submitted invoices itemizing the legal services provided to Mr. Pitts, in the New York State and Federal Court actions (Exhibit 5 to Pilarz Affidavit and Exhibit B to Lennon Affidavit). The plaintiffs assert that Mr. Pitts had implied authority to engage outside counsel to prosecute the actions, which he has characterized as having been commenced because the resolution and the local law impacted the "fair representation of the citizens of Buffalo [and] were important to the community, in particular the African-American community, and that any change in the form of government in the City of Buffalo be done fairly and legally, especially when positions for city-wide officials might be eliminated" (Pitts Affidavit, ¶ 13). It is undisputed that Mr. Pitts discussed his concerns about the fairness of the legislative process with the Corporation Counsel and that Mr. Pitts attempted to obtain authorization to retain private counsel to represent him in the anticipated litigation. The record reflects that (1) the Corporation Counsel did not certify a conflict of interest and did not authorize the retention of outside counsel, as required by the City of Buffalo Charter; (2) the retainer agreements entered into by the plaintiffs and Mr. Pitts did not comply with the requirements of the City of Buffalo Charter; and (3) Mr. Pitts did not have explicit authority to enter into the retainer agreements and bind the City of Buffalo to pay counsel fees and expenses. The undisputed evidence reflects that the majority of the Common Council voted in support of Local Law No. 8, and that the Corporation Counsel assisted in the drafting of Local Law No. 8, just as the Corporation Counsel assisted in drafting other legislation.
The invoices for legal services were sent directly to Mr. Pitts, who forwarded them to the Chief City Clerk (Pitts Affidavit, ¶¶ 25, 27).
In support of the plaintiffs' motions for summary judgment, Mr. Pitts has stated that he "acted in good faith on behalf of the community of the City of Buffalo and as President of the Common Council to protect the interests of the community and the Common Council with regard to [Local Law No. 8] that was considered to be improper and illegal" (Pitts Affidavit, ¶ 29). It is undisputed that neither of the plaintiffs have sought to recover any of the amounts outstanding for attorneys fees and expenses from Mr. Pitts.
Upon reading and filing the Notice of Motion, dated May 16, 2006, the Affidavit of Michael Pilarz, Esq., sworn to May 15, 2006, and exhibits, the Affidavit of James W. Pitts, sworn to May 10, 2006, and the Affidavit of Alan G. Schwartz, sworn to May 3, 2006, on behalf of Wiggin Dana, and in support thereof, and the Notice of Motion, dated June 16, 2006, the Affidavit of J. Michael Lennon, Esq., sworn to June 16, 2006, and attached exhibits, and the Affidavit of J. Michael Lennon, Esq., sworn to July 12, 1006, and attached exhibits, in support thereof and in opposition to the Cross-Motion of the City of Buffalo, and the Notice of Cross-Motion, and the Affidavit of Paul G. Joyce, Esq., sworn to June 16, 2006, and attached exhibits, on behalf of the City of Buffalo, in support of the Cross-Motion and in opposition to the Motions for Summary Judgment by the plaintiffs, and having heard oral argument on July 19, 2006 from Michael Pilarz, Esq., on behalf of Wiggin Dana, J. Michael Lennon, Esq., on behalf of Edward C. Cosgrove, and Paul G. Joyce, Esq., on behalf of the City of Buffalo, this Court decides as follows:
II. Decision
The issue presented squarely in the motions and cross-motion for summary judgment is whether Mr. Pitts had authority to retain private legal counsel to represent him in litigation he commenced against the City of Buffalo challenging Local Law No. 8. The City of Buffalo relies heavily upon the undisputed failure of Mr. Pitts to proceed in accordance with the procedure set forth in the City Charter for the retention of outside counsel. The record shows, without serious question, that the requirements under the City Charter were not met.
"It is well-settled law that an attorney may not be compensated for services rendered a municipal board or officer unless he has been retained in accordance with statutory authority" ( Cahn v Town of Huntington, 29 NY2d 451, 453 [citations omitted]). "[E]xpress authority, either by statute or by appropriate resolution of the governing body, must be shown to justify the retention of an attorney by a municipal board or officer" ( Id). As stated by the Court of Appeals:
[t]he salient purpose underlying this rule is, of course, to ensure responsible municipal government. Not only is it designed as a safeguard against the extravagance or corruption of municipal officials, as well as against their collusion with attorneys . . . but also, to prevent confusion and contradiction in the direction of the municipality's litigation ( Id at 455).
Despite the foregoing discussion emphasizing the public policy considerations in this inquiry, the Court held that a municipal officer, in certain circumstances, may possess "implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its or his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting" ( Id). The Court explained that the purpose of granting implied authority in such limited circumstances was to "enable the board [or officer] to effect the purposes of its creation and to allow it to properly function" ( Id at 455). However, while the Court recognized a limited exception of implied authority to retain counsel, this was because "the stringent requirements that must be satisfied" would not compromise the general rule requiring express authority ( Id at 455).
After reviewing the submissions, this Court finds that the facts presented do not satisfy the "stringent requirements", articulated in Cahn v Town of Huntington, 29 NY2d 451, warranting a finding of implied authority to retain counsel. The record contains the assertions that Mr. Pitts employed counsel in the good faith prosecution of the action challenging Local Law No. 8. However, those allegations are not dispositive of this inquiry ( See Puka v Greco, 119 Misc 2d 696, 704). It is undisputed that a majority of the Common Council supported Local Law No. 8 and that the Corporation Counsel, as with any other proposed legislation, assisted the Common Council in the legislative process. As noted in Puka, "[t]o permit the retention of an attorney every time one member of the board of trustees disagrees with the majority is certainly not in the public interest and would lead only to confusion and contradiction in the direction of the [municipality's] litigation" ( Id). While it is evident that Mr. Pitts disagreed with the majority of the Common Council concerning Local Law No. 8, there is insufficient evidence in the record to demonstrate that the action instituted by Mr. Pitts was "undertaken in the public interest, and in conjunction with . . . his official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting" ( See Cahn, 29 NY2d at 455).
There is more than sufficient detail in the record showing that the litigation was not commenced in furtherance of the public interest, but rather to protect the personal/private interest of Mr. Pitts in maintaining his position as President of the Common Council. This conclusion is supported, at least in part, by the fact that the majority of the Common Council voted in support of Local Law No. 8 and the voters in the City of Buffalo handily passed the law in the November, 2002 election. Additionally, despite the assertions of the plaintiffs to the contrary, the position of Common Council President held by Mr. Pitts was not eliminated. Rather, Local Law No. 8 simply modified the manner in which the Common Council President was selected, namely from a separately designated at-large seat voted upon by the electorate to a position elected by the Common Council from the members elected in the reapportioned districts.
Further, unlike Cahn, there is no evidence in this record that the City of Buffalo or the Common Council usurped Mr. Pitts' authority or interfered with his ability to properly function in his position as President of the Common Council. Because the litigation was commenced to protect the private/personal interest of Mr. Pitts in maintaining his position as President of the Common Council, the City of Buffalo is not liable for the reasonable value of legal services rendered ( See Leo v Barnett, 48 AD2d 463, 466).
After reviewing the record as a whole, this Court has been persuaded that the voters endorsed Local Law No. 8 and the reduction in the Common Council membership from 13 to 9, and that any litigation commenced on behalf of Mr. Pitts cannot be construed as "undertaken in the public interest" ( See Comins v County of Delaware, 66 AD2d 931, 932). The facts and circumstances presented in this case do not warrant a finding that Mr. Pitts had implied authority to retain counsel to represent him in the underlying litigation. As a result, the plaintiffs' motions for summary judgment seeking attorney's fees are denied, and the cross-motion by the City of Buffalo to dismiss the complaints is granted.
Based on the foregoing analysis, the $10,000.00 retainer paid to Wiggin Dana by the Chief City Clerk at the behest of Mr. Pitts must be returned. Accordingly, the cross-motion by the City of Buffalo to recover the $10,000.00 retainer paid to Wiggin Dana is granted. Plaintiff Wiggin Dana shall pay $10,000.00 to the defendant within forty-five (45) days of the granting of this Decision and Order.
Accordingly, it is hereby
ORDERED, that the motion by plaintiff Wiggin Dana LLP for summary judgment is denied in its entirety; and it is further
ORDERED, that the motion by plaintiff Edward C. Cosgrove for summary judgment is denied in its entirety; and it is further
ORDERED, that the cross-motion by defendant City of Buffalo is granted in its entirety, and plaintiff Wiggin Dana shall pay $10,000.00 to the defendant within forty-five (45) days of the granting of this Decision and Order.
The foregoing Decision constitutes the Order of this Court. No further Order need be submitted.