Men of Many Hats 

Mayor Herenton balks at paying legal fees to city attorney as bills are audited.

The job description for a city attorney would seem to be clear enough.

"Once you identify the city as the client, then everything flows from that," said Allan Wade, who has been attorney for the Memphis City Council since 1992.

Robert Spence, city attorney for Memphis since 1997, has a similar view.

"A lawyer's allegiance is to his client, and my client is the city," he said. "I think it works pretty well, looking at it that way."

 

Robert Spence

The problem, as the ongoing brawl at City Hall shows, is defining the city's interest when the mayor and the 13 members of the City Council do not agree -- not only about policy but about fundamental issues such as the balance of power and the city charter. What are their roles in the appointment of division directors? What is the city's relationship to MLGW? Can the mayor abolish the school board?

Those questions have put Wade and Spence in the middle of the scrap and strained their relationship with Mayor Willie Herenton. Spence, who leaves his $122,000-a-year job February 20th to return to private practice, has not been asked to give an opinion on the charter as it relates to appointments. But he says he is leaving with no hard feelings.

"I am a vastly improved lawyer, having done this," he said in an interview this week. "And I thank the mayor for it."

Wade, who is paid a retainer of $58,000 a year by the city, plus $400 an hour when he and an assistant are hired on contract, is the council's legal champion and therefore currently on the opposite side of the fence from the mayor. They have worked amicably together in the past, most notably in their resounding win on the toy towns issue in the Tennessee Supreme Court in 1997. But not this time.

"I'm on record suggesting that this issue can be resolved by dialogue between the mayor and council," he said. "The next day I got a letter from the mayor saying he wasn't paying me."

In the latest assertion of mayoral prowess, Herenton froze payments to Wade's former law firm, Baker Donelson Bearman and Caldwell, while the city conducted an audit of charges for work done on contract with the city between July 2001 and November 2003. Payments to another lawyer, Ricky Wilkins, and the firm of Burch Porter and Johnson were also audited.

The audit, obtained by the Flyer this week, found that payments and rates were "reasonable and consistent with other contract rates." But the report said the city "has insufficient written guidance with respect to contracting for special counsel and dual employment for city employees performing professional services." It concludes that this is "an unsound business practice."

 

In a written response to the audit, Spence said Wade was hired to work on "very complex" litigation involving a challenge to the city's franchise ordinance and a challenge to the city's financing agreement for the FedExForum with the Sports Authority. Wade, Spence said, "was the best person to defend the city in these matters" and was cost-efficient because he already knew the facts.

The legal issues are complicated because both Spence and Wade wear several different hats. In addition to their public duties, they are partners in a private practice, Spence & Wade PLLC. Their clients have included public agencies and former public officials as well as high-profile private citizens and organizations. Wade was recently added to the defense team of University of Alabama football booster Logan Young, who is under federal indictment.

As African-American lawyers, Spence and Wade benefit from another fact of modern political life. Most big state and city contracts require that a percentage of the work be given to minorities. That was the case with the legal work for the Tennessee lottery. Although Spence and Wade had been in partnership only a few months, they still got a chunk of the business, thereby helping lottery officials meet their minority hiring goal. Spence said he did not know offhand the amount of their fees.

 

Allan Wade

Wade, again wearing his private-attorney hat, also got a piece of the legal work on the $1.5 billion bond deal between TVA and MLGW. Wade said he was paid $75,000. But if the City Council follows through on its plan to do a "Watergate-style investigation" of Herenton's role in the TVA and MLGW bond deal, Wade will put on his public hat. As City Council attorney, he could play a starring role, advising the council on how to question the mayor and what records to seek. The proceedings could be adversarial, to say the least.

In 2002, Spence represented former county mayoral aide Tom Jones, before Jones pled guilty to federal charges. For a couple of weeks, the city attorney acting as a private lawyer was representing a prominent former public official who was being audited, if not investigated, by the county attorney acting as a public lawyer.

Spence said that was a private arrangement with no public money involved.

In an ongoing case, private attorney Wade represents city attorney Spence in a $1.5 million defamation suit against television stations WPTY and WLMT over a story about potholes in city streets.

Spence says he rarely is presented with conflicts of interest because he is a litigator who does his outside work in a courtroom. He said he made it clear to the mayor that he would not give up his private practice when he took the city attorney job.

"Wherever I am in the world, I'm on 24-7 call for the city," he said. "This job has killed my private practice. It takes up the vast majority of my time."

To further complicate matters, Memphis and Shelby County governments don't have the same policy. County attorney Brian Kuhn is a full-time employee with no outside practice. Moreover, he represents both the mayor and the county commission. The commission does not have its own attorney although from time to time members ask for one.

"By charter, the county attorney is required to be a full-time position," Kuhn said. "The county attorney plays a non-adversarial role. When it gets adversarial, then both sides, quite frankly, ought to get their own outside attorney."

But there are some inconsistencies in the county policy too. The Shelby County public defender is not required to be a full-time position. Before he became county mayor, A C Wharton maintained an active private practice while serving as public defender for several years.

The city of Memphis and Mayor Herenton have run into trouble before due to the loose interpretation of the duties of the city attorney. Spence's predecessor, Monice Hagler, was fired by Herenton after she lost a case in which she represented him in a private capacity.

The city is moving toward making the city attorney a full-time position, at least unofficially. At her confirmation hearing last month, city attorney nominee Sara Hall was questioned by council members about her view of outside legal work. She said she would be a full-time city attorney. In an indication that council members were aware of the storm brewing with the mayor, Hall was also asked to explain her views on interim directors and the division of powers. She hedged her answers but was confirmed anyway.

The job of City Council attorney is, if anything, even trickier because the salaries, egos, and staff of the council have grown so much over the years.

In normal times, the council attorney provides routine legal advice to members on a variety of subjects, sits in on council meetings as parliamentarian, and chats with staff and reporters during the breaks.

Wade, more businesslike than gregarious, is reasonably good at all of them, although not uniformly popular with all 13 of his masters. Until last year he was with Baker Donelson Bearman and Caldwell. One of the firm's founders, Lewis Donelson, was an original member of the City Council and one of 25 citizens who wrote the city charter in 1968. Wade was first hired during the administration of former mayor Dick Hackett in 1988 but was let go after less than a year following a charter controversy. Herenton hired him in 1992 and reappointed him in 1995. But in 1997, the mayor told council members he had "growing concerns regarding the role of the staff attorney for the City Council" and opined that Wade was "not an independent contractor."

Last year they were again at odds over Herenton's aborted plan to have a referendum to abolish the city school board. Then came the controversy over the dismissal of MLGW president Herman Morris and the City Council's rejection of four of the mayor's choices to head city departments. Last week Herenton vetoed a City Council action for the first time in his career.

Wade says that, far from gouging the city, he often works at bargain rates. He says that he put in so many hours in recent months that his fee was roughly only $85 an hour. He couldn't say exactly what his $400-an-hour billings added up to for contract work but noted that the city set aside $100,000 a year for it.

"Whenever they ask me to do something really extraordinary, my position has been that they'll have to pay me," he said.

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