LIHUE — A Maui-based attorney is challenging Kauai County’s attempt to obtain free legal services. The procurement protest, filed Monday by Lance D. Collins of Wailuku, alleges the county’s solicitation to defend Ordinance 960 in federal court, regarding pesticides and
LIHUE — A Maui-based attorney is challenging Kauai County’s attempt to obtain free legal services.
The procurement protest, filed Monday by Lance D. Collins of Wailuku, alleges the county’s solicitation to defend Ordinance 960 in federal court, regarding pesticides and genetically modified organisms, includes unethical legal practices and violates state and county laws.
The county’s responsibility is to hire the most qualified representation when it comes to legal counsel, he said, not one that’s willing to do it for no cost at all.
“I don’t think the government should be encouraging unethical behavior of lawyers,” Collins said.
The county’s solicitation notice seeking pro-bono representation was made public Jan. 17 — one week after Syngenta, DuPont Pioneer and Agrigenetics, Inc., a Dow AgroSciences affiliate, filed a lawsuit in U.S. District Court in Honolulu to block Ordinance 960, formerly Bill 2491.
Collins’ formal protest, however, could rescind that notice.
In most cases, the chief procurement officer is charged with determining the validity of a protest — that person, in this case, is Finance Director Steve Hunt, he said.
“We are reviewing the communication and have no comment at this time,” County spokeswoman Mary Daubert wrote in an email about the protest filed with the county.
Although providing pro-bono legal services is a common practice, one issue lies within the county’s interpretation of it, Collins said.
It is defined, according to the county’s solicitation notice, as “professional work undertaken voluntarily and without payment as well as donation of all related litigation and collateral costs and expenses.”
Those costs include, but are not limited to, court and court reporter costs; travel, per diem, copying, legal research and communication expenses; and expert fees. Some of these costs, he said, are illegal for attorneys to pay for at no charge to their clients.
“The ability to ‘donate’ court costs and litigation expenses has nothing to do with the provision of pro-bono legal services and, in fact, can interfere with the ability of the county to select the best provider … because firms that may be otherwise most qualified may be less qualified by their inability to offer to ‘donate’ court costs and litigation expenses,” Collins wrote to Hunt.
Having a legal firm provide these services, he claimed, also violates state ethics rules, barring lawyers from providing financial assistance to clients except under specific circumstances.
“My suspicision is that if any attorneys file bids, they are going to be unresponsive because they’re all going to say, ‘By our ethics, we cannot do what you’re asking,’” Collins said.
Another concern, he said, is that the solicitation violates the County Charter because the County Council, not the county attorney, is charged with determining whether special counsel services should be retained.
The decision to seek pro-bono services did not go before the council.
“The scope of service as defined by the county attorney requires … actual or prospective bidders and offerors to engage in unethical behavior or business practices, to engage in activity that would create the appearance of impropriety or conflicts of interest and would interfere with the equal opportunity to compete in a fair and open environment,” Collins wrote.
The deadline to receive any prospective bids is scheduled for Friday, according to county documents.
• Darin Moriki, county government reporter, can be reached at 245-0428 or dmoriki@thegardenisland.com. Follow him on Twitter at @darinmoriki.
