“O’er lawyers’ fingers, who straight dream on fees….”

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Considering I had never been to Fort Smith prior to December 2013, it might seem a little strange that I have a soft spot for that town.  But I do, for any number of reasons.[foot]For one, I find downtown Fort Smith absolutely fascinating; it looks like someone took the set of True Grit and the set of A Christmas Story, smashed them together, and decided that was perfect and never needed to change.  I can’t even say they were wrong.[/foot] The primary reason for my affinity for Hell On The Border, however, is because my introduction to and interactions with the town have been almost entirely on behalf of men who are great public employees, as well as dear friends, who have been forced to fight “the way things work around here” simply because someone got mad that these men were doing their jobs correctly.

Ah, but I am getting ahead of myself now.  This post is not about my friends in Fort Smith, at least not directly.  This post is about blatant, egregious, and possibly criminal waste[foot]Or, perhaps more accurately, theft.[/foot] of public funds by the law firm of Daily & Woods in their capacity as city attorney for Fort Smith.  So let’s start from the beginning.

Background.

Back on October 17, 2013, I submitted an Arkansas Freedom of Information Act (“AFOIA”) request to the Fort Smith Police Department (“FSPD”), seeking, among other things:

Copies of all reports, memoranda, and other documentation related to the investigation of Capt. Alan Haney’s unauthorized access to computer records related to the investigation of Emily Haney.

A few days later, I received a letter from Sgt. Daniel Grubbs of the FSPD, denying that part of my request.  As Grubbs wrote in the letter:

It is the opinion of this office, backed by the City Attorney’s Office, that the record(s), if any, you have requested did not give rise to a compelling public interest.  Therefore, your request is denied.

This was wrong.  Or “demonstrably incorrect,” if you’re not into the whole brevity thing.  So I sent a response to Sgt. Grubbs on October 25th, copied to Chief Kevin Lindsey and City Attorney Jerry Canfield, explaining why the records should be released.[foot]In pertinent part: “The Arkansas Attorney General has explained that whether employee-evaluation records give rise to a “compelling public interest” must be evaluated based on several facts. See Op. Att’y Gen. No. 2012-149. The following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee’s position within the agency. Id.”[/foot]  I received a phone call from Sgt. Grubbs later that same day, reiterating his position that there was no compelling public interest in the release of those records and indicating that Mr. Canfield had again agreed with this determination.

Now, keep in mind that, under the AFOIA, Mr. Canfield could have asked the Attorney General’s office for an opinion as to whether these records should be released, but he chose not to at this point.  On October 31, I filed suit in Sebastian County, challenging the FSPD’s refusal to release those records.

On November 7, I received a call from Doug Carson, another attorney at Daily & Woods, asking if I would be amenable to the City requesting an AG’s opinion about the records.  I pointed out that this should have been earlier, but agreed to the plan.  On November 8, however, I received another call from Mr. Carson, in which he offered to provide the records and reimburse my filing fee and costs (for a total of $315) if I would dismiss the case.  Considering I only wanted the records in the first place, I agreed.

On November 12, I sent a proposed order to Mr. Carson.  He responded on November 13 with a revised version that removed the details of the settlement because, in his words, he “[did] not see any reason for all of the statements concerning our agreement to be in the order of dismissal.”

Daily & Woods Cashes In.

Given (a) that the AFOIA suit against the FSPD had reached a settlement agreement in eight days from the original filing, (b) an order of dismissal had been signed by me and Mr. Carson within two weeks of the original filing, and (c) the whole thing was resolved on my end for $315, one might reasonably assume that the case was merely a blip on the billing invoices from Daily & Woods to the City of Fort Smith.  After all, D&W is a private law firm that (in theory) does legal work beyond what they do for the city.

One would be wrong.

A few months ago, I requested and received from Fort Smith the 2013 invoices from Daily & Woods as city attorney.  Flipping just through the entries related to the AFOIA suit, which begin on November 1, we see:

Nov-1-13  Re: Police Department.  Received and reviewed FOIA complaint; phone conference with Chief Lindsey regarding same; phone call to Sgt. Grubbs.  1.0 hours.  (WRW)

Nov-4-13  Re: Police Department.  Phone conference with Chief Lindsey regarding FOIA; office conference with Captain Jarrard Copeland regarding same; received and reviewed internal investigation file of Captain Alan Haney.  1.8 hours.  (WRW)

Nov-4-13  Re: Campbell.  Conference with Attorney Carson.  0.3 hours.  (JLC)

Nov-4-13 Re: Campbell v. City.  Review and analyze complaint; legal research; draft and edit motion to dismiss (3 pages); draft brief in support of motion to dismiss (6 pages); telephone conference with Mr. Jones; telephone conference with Sgt. Grubbs; receive and study EEOC documents re related Wendall Sampson charge; conference with Attorney Canfield; conference with Attorney Wade; letter from Mr. Jones; review SWTR article.  5.9 hours.  (DMC)

Nov-5-13  Re: Campbell.  Review complaint; conference with Attorney Carson; review statute; conference with Attorney Wade.  1.1 hours.  (JLC)

Nov-5-13  Re: Police Department.  Received and reviewed email from Detective Smithson regarding FOIA request; phone conference with Chief Lindsey, Sgt. Grubbs, and Detective Smithson; reviewed records of investigation concerning Captain Haney.  1.6 hours.  (WRW)

Nov-5-13  Re: Matthew Campbell v. City of FS.  Received and reviewed email from Sgt. Grubbs regarding opinion of Attorney General on privacy interest; received and reviewed email from Ms. Emily Haney; phone conference with Sgt. Grubbs.  1.4 hours.  (WRW)

Nov-5-13  Re: Campbell v. City.  Further draft and edit motion to dismiss (3 pages) and brief (6 pages); legal research; draft and edit answer (7 pages); telephone conference with Sgt. Grubbs; telephone conference with Chief Lindsey.  3.3 hours.  (DMC)

Nov-6-13  Re: Campbell.  Legal research regarding attorneys fee standard under FOIA; conferences with Attorneys Wade and Carson; proofread motion to dismiss and answer.  2.8 hours.  (JLC)

Nov-6-13  Re: Campbell v. City of FS.  Conference with Attorneys Canfield and Carson regarding Answer to Complaint; exchanged emails with City Administrator Ray Gosack regarding contact with Attorney Campbell.  1.4 hours.  (WRW)

Nov-6-13  Re: Campbell v. City.  Further draft and revise answer, motion to dismiss, and brief; conferences with Attorney Canfield; multiple telephone conferences with Chief Lindsey; multiple telephone conferences with Sgt. Grubbs; conference with Attorneys Canfield and Wade; letter to clerk; letter to Attorneys Canfield and Wade; letter to Chief Lindsey and Sgt. Grubbs.  6.6 hours.  (DMC)

Nov-7-13  Re: Campbell.  Memo from Attorney Carson; memo to Attorney Carson; conference with Chief Lindsey and Attorneys Wade and Carson; conferences with Attorney Wade and Carson.  1.0 hours.  (JLC)

Nov-7-13  Re: Police Department.  Office conference with Chief Lindsey, Attorney Canfield and Carson regarding FOIA request.   1.0 hours (WRW)

Nov-7-13  Re: Campbell v. City.  Conference with Chief Lindsey and Attorneys Canfield and Wade; telephone conference with Chief Lindsey; telephone call to Sgt. Grubbs; receive and study 11/5 FOIA request; two telephone conferences with Sgt. Grubbs; receive and study 37 pages of email correspondence re various City employees and Attorney Campbell; receive and study 30 pages of correspondence from Sgt. Grubbs re various communications in FSPD and with Attorney Campbell; receive and study additional documents for FOIA production (approx. 1/4 inch thick); telephone conference with Attorney Campbell; letter to Attorney Campbell; draft request to Attorney General re FOIA requests from Mr. Campbell; letter from Attorney Campbell.  7.5 hours.  (DMC)

Nov-8-13  Re: Campbell v. City.  Multiple telephone conferences with Sgt. Grubbs; three telephone conferences with chief Lindsey; receive and study Times Record FOIA; two telephone conferences with Attorney Campbell; conferences with Attorneys Canfield and Wade; letter to Attorney Campbell; review requested records.  6.1 hours.  (DMC)

Nov-8-13  Re: Campbell v. City of Fort Smith.  Office conference with Attorney Canfield and Carson.  0.4 hours.  (WRW)

Nov-11-13  Re: Campbell.  Conference with Attorney Carson.  0.1 hours.  (JLC)

Nov-11-13  Re: Campbell v. City.  Letter from Attorney Campbell; telephone call to Attorney Campbell; telephone conference with court clerk; conference with Attorney Canfield.  0.5 hours.  (DMC)

Nov-12-13  Re: Campbell v. City.  Two telephone conferences with Attorney Campbell; telephone conference with Sgt. Grubbs.  0.7 hours.  (DMC)

Nov-13-13  Re: Campbell v. City of FS.  Office conference with Attorney Carson regarding dismissal order.  0.2 hours.  (WRW)

Nov-13-13  Re: Campbell v. City.  Receive and study proposed order from Attorney Campbell; draft and edit substitute order; two letters to Attorney Campbell; letter from Attorney Campbell; conference with Attorney Wade.  0.9 hours.  (DMC)

Nov-14-13  Re: Campbell v. City.  Receive and study City response to Times Record FOIA request; telephone conference with Sgt. Grubbs.  0.3 hours.  (DMC)

Nov-20-13  Re:  Campbell v. City.  Telephone call to Attorney Campbell; telephone call to Chief Lindsey. 0.3 hours.  (DMC)

Nov-25-13  Re: Police Department.  Memo from Attorney Carson regarding Campbell litigation; memo to Attorney Carson.  0.1 hours.  (JLC)

Nov-25-13  Re: Campbell v. City.  Receive and study entered order of dismissal; letter to Attorneys Canfield and Wade; letter from Attorney Wade; letter from Attorney Canfield; letter to Attorney Wade.  0.4 hours.  (DMC)

Nov-27-13  Re: Campbell v. City.  Review information from Attorney Campbell; letter to Mr. Gosack and Chief Lindsey; letter to Mr. Jones.  0.9 hours.  (WRW)

Nov-27-13  Re: Campbell v. City.  Review information from Attorney Campbell; letter to Mr. Gosack and Chief Lindsey; letter to Mr. Jones.  0.3 hours.  (DMC)

Nov-30-13  Re: Police Department.  Reviewed copies of emails produced as a result of FOIA request from Attorney Matt Campbell.  1.4 hours.  (WRW)

That’s 49.3 billable hours at $137.50 per hour, for a grand total of $6,778.75 … in one month, on one case, which settled in under two weeks for $315 without ever requiring discovery, depositions, hearings, or a trial.  On its face, that would seem absurd enough, but, of course, there is more.

Looking back over that list, there are multiple red flags.

  • There are, at minimum, thirteen “conferences” with Sgt. Grubbs and at least fourteen with Chief Lindsey, as well as one each with Capt. Copeland and Det. Smithson.  Twenty-nine conversations with four members of the FSPD?  In a FOIA case that lasted less than two weeks?  How does that even remotely make sense?  After all, once the suit was filed, Sgt. Grubbs’ justification for why he refused to release the records was no longer relevant; he’d completed his duties vis-a-vis responding to the request, and it was now up to the judge to decide whether the records were properly withheld.  [foot]Maybe you touch base with Sgt. Grubbs once or twice, and maybe even Chief Lindsey once, just to get their version of the back story before you start drafting motions and answers.  But twenty-seven times?  What could Sgt. Grubbs — whose only role in this was to either send the records or not, for which he had allegedly already received input from Daily & Woods — possibly tell you on the thirteenth call that was relevant?[/foot]
  • Doug Carson (he is the “DMC” on the list) billed the City for some chunk of 17.1 hours related to drafting and editing a motion to dismiss, brief in support, and answer, all of which totaled a whopping 16 pages.  Once you factor in the case heading and required information and certificate of service at the end of each of those documents, you’re talking about maybe 12 or 13 pages of actual legal work, much of which (in the motion and answer) is simply straightforward, basic assertions or denials in numbered paragraphs.  How that work could take double-digit hours is beyond me.
  • Mr. Carson asked me to draft an order of dismissal after we reached our settlement agreement, which I did.  He billed the City to call and propose the offer to me, billed them for “receiving and studying” that proposed order, billed them for discussing that proposed order with Rick Wade (“WRW”), and billed them for drafting and editing a substitute order.  This is that substitute order.  How in the world can Mr. Carson then with a straight face bill for time on November 25 for “receiving and studying” the order of dismissal?  He wrote the thing.  It’s 56 words long.  I made zero changes.  What “study” was necessary?
  • Also in the “why was that necessary” category, why is the City billed for each of the three attorneys (including Jerry Canfield, who was not technically an attorney of record on this case because he was a named defendant) reviewing the same complaint?  And, honestly, why is the City billed twice for each time one of the attorneys pops into another’s office to chat about the case?  If Daily & Woods’ billing rate is $137.50 an hour for work they perform for the City, do you think taxpayers expect a 12-minute conversation to be billed out at $275 an hour (or, in the case of three of the attorneys talking, $412.50 an hour)?

But here’s the real kicker: those red flags are there for anyone who simply takes the entries on the invoice at face value and doesn’t look any deeper.  Thing is, overall in the November billing, Daily & Woods referenced nine telephone conversations with me: one on November 7, two on the 8th, one on the 11th, two on the 12th, one on the 18th, one on the 20th, and one on the 22nd.

After I read that, I realized that I didn’t recall that many conversations with them, so I pulled my phone records[foot]I’ll upload the phone records after I have a chance to properly redact all of the other information.[/foot] for that period.  The one phone call on the 7th checked out (that’s the one where they called about getting an AG opinon).  The two on the 8th were right (settlement offer then a follow-up phone call to clarify a detail).

But the 11th?  Nope.  None.

The 12th? Only one at 3:55pm, not two.

How about the 18th?  Zero.  The 20th?  Same.  And the 22nd?  Shockingly, also zero.

Why does this matter?  A couple of reasons, really.  At the very least, it makes every reference to a phone conference with anyone on a Daily & Woods invoice suspect; if they are claiming phone calls with me that didn’t actually occur, whose to say they aren’t doing the same with all of those phone conferences with Sgt. Grubbs and Chief Lindsey?  And if they are claiming that many extra calls in the very first month I had any dealings with them, you have to start to wonder how far back and how rampant the practice might be.  It’s certainly a question worth looking into if other attorneys who have dealt with Daily & Woods as city attorneys would be willing to pull phone records and compare notes.

Additionally, though, the made-up calls are what make this whole thing arguably criminal.  Depending on whether these invoices were mailed or emailed, submitting a knowingly false invoice for payment could possibly be construed as either mail fraud or wire fraud.  Even if it is not criminal — which is for someone else to ultimately decide — it’s still unethical.

At the end of the day, though, if you are a taxpayer in Fort Smith, the big picture here is troubling.  You have a private firm, in the capacity of city attorney, who caused the City to get sued by giving them incorrect advice (twice) about how to respond to a FOIA request.  Despite a settlement being reached in eight days from filing, the law firm managed to use that suit to bill over $6,700 in November by unnecessarily duplicating work and, apparently, padding the bill with phone calls that didn’t even happen.

And this is one tiny case in one calendar month over the nearly four decades that Daily & Woods has been city attorney for Fort Smith.  Is it more likely that only this particular case has some questionable billing, and I just happened to be lucky enough to be on the other side of the one time they acted like, or that this is a sign of a bigger problem?

Hopefully, when we take a look at the 2014 invoices in the next post, we’ll have more of an answer to that question.