— by Sheryl Albritton —
I am compelled to write this letter to share my support for Randy Gaylord’s re-election.
Many have written about a records lawsuit filed in my name, all without benefit of a personal interview. The case did not start about records, it was about the land use code.
I went to an attorney with the expectation land use codes apply the same to each of us and Mr. Power turned it into a records case.
Shortly after signing his contract, he requested I sign a new contract with an associate, a well-known attorney he utilized in records cases around the region. Her contract stated she was lead and he would assist, and both would provide monthly billing statements which was not the case. Mr. Power was lead while co-counsel assisted. Co-counsel sent monthly billing for her small amount of time while Mr. Power never did. Mr. Power also requested I front each of them $2000 for expenses.
The County quickly offered to settle. I was to receive $22,501.00 which I intended to donate, and Mr. Power would receive reasonable attorney fees. Mr. Power asked for attorney fees of $29,942.75 ($330 per hour), which I was not made aware of until the court hearing in Skagit County. The County objected to the amount, and upon learning his charge to handle a single complaint I too was naturally upset. Rather than Mr. Power arguing his own fees, he used co-counsel to defend him and charged me. Ironically, after defending their attorney’s fees, ended up with $51,000 ($27,000 to Power and $24,000 to co-counsel for defending Mr. Power’s attorney fees).
Mr. Power claims to be the candidate of transparency and honesty but his actions reflect his self- interest.
Randy Gaylord has worked on our County’s behalf for years and deserves our votes.
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Sheryl: Sounds like you were ripped off. Of the $22,501 the County offered to you, how much did you actually receive? And of that amount, how much remained in your pocket after paying Power his additional attorney fees? Did you end up with anything?
Agree! No I did not receive any of the $22,501 it was swept up by co-counsel defending his fees. The judgement states I received $979.60 but that was reimbursement for fees/expenses of the $4000.00 fronted.
Let’s add some needed perspective.
I have no preference between the candidates because I don’t know their histories or backgrounds. As far as I know both are good decent me and competent at their trade.
But any lawyer and any non-lawyer client who has had plenty of dealings with private attorneys would want to add a few lines for the sake of balance.
1. Once retained, private attorneys work hourly to think, talk, strategize and perform on the matter for which they were engaged before and after litigation. Sometimes payment is based on the degree of success, or a percentage— regardless of how quickly matters are resolved. Lots of possible
scenarios. Let’s see the fee agreement before drawing conclusions.
2. Private non-profit attorneys who utilize state or federal statutory language to recover hefty sums (their fees) for legal work has been common-place for decades. In fact, I know many environmental lawyers who made small fortunes off of Prop 65 in California going back to the early 90’s —where they palyed the role of private attorney generals who sued private businesses for an ever-growing laundry list of ingredients in their products that were considered sufficiently toxic to command huge fines (and legal fees) and corrective behavior (i.e., corrective behavior to plaintiffs, legal extortion to defendant-businesses) But, non-profit lawyers made good sums to fund comfortable lifestyles.
3. When a private attorney gives up those private money making opportunities whether in the for-profit or not-for-profit realms by entering into the public attorney realm, that should mean something.
4. When public attormeys return to private practice they often make even more money given their connections and well-placed relationships that were established during their tenure as public officials. That’s fairly normal and typical.
5. That a defendant (the County) would object to the prevailing party’s attorneys’ fees (that the county, not the plaintiff, will pay) is a given. It’s different if a Judge has an issue with them. Generally, if the presiding Judge finds no fault with the fees, we are satisfied that it’s not overly excessive or improper.
6. I would be quite surprised if there were not a fee agreement fully executed at the time of engagement that spelled out the hourly fee; many arrangements call for clients to front some costs but all of this should be agreed to in writing in advance. There should be no surprises with respect to these terms.
The facts relayed above appear common-place enough for attorney/client dealings and most attorneys would admit this if their time and effort were implicated.
Finally, if you make an attorney fight for his or her fees that the court does not deem unreasonable and thereby leaves unchallenged, be prepared to pay for more fees if you lose—this works to police and discourage frivolous litigation.
The above doesn’t argue in favor of either candidate.
Perspective based on how attorneys are typically engaged and earn their fees helps to manage the public relations image that can be skewed by those who are not as familiar with the profession as they might otherwise be.
Chris, as Sue Malins asked on another voluminous set of comments you wrote in OI, are your monetary contributions to Orcas Issues, commensurate with the space in this valuable publication? I certainly hope so.
Eleanor—I consider a type of Pro Bono…I really do care about how we think and communicate with one another. I think it helps on all fronts.
Sheryl: Thanks for sharing the unfortunate experience you had after hiring Nick Power as your attorney. You certainly make a compelling case against our hiring him as our County’s attorney.
Bottom line is one needs to send accounting of ones time monthly and follow a contract as written. This is standard so one can see how that attorney is spending his/ her time. He could have defended his own fees.
Chris Graham has explained billing practices which anyone who uses an attorney should be aware of. I have been on the receiving end of actions by Randy Gaylord which were not in keeping with the higher standard of ethics which a prosecuting attorney is held to. In order for ‘Team Randy’ to legitimize an after-the-fact building permit on the shoreline changing a barn into a guest house which sits 17″ from my property line, I was told my boundary line was found to be incorrect. A false statement. I was also told that a private agreement I had with the previous landowner superseded County setback regulations. Another false statement. When I protested to Randy, the County Manager, and the Counsel, Randy’s comment to me in an e-mail was that ‘The County has moved on and so should you’. The County spent years in court defending their false statements as to admit they were false would have deprived their friends of a guest house. The U.S. Supreme Court has ruled that the ‘Prosecuting Attorney must be held to a higher standard than regular attorneys as they represent all the citizens’ — not just their friends or friends attorneys. This was not the case here. I did not “move on” and had the prevailing argument when “Team Gaylord” changed the rules and argued that the original barn did not need a building permit in the first place so it could be developed without any further shoreline regulations or setbacks or other restrictions. This argument is another false statement as I have over 20 acknowledgements from County Staff and appointees over the past 30 years, including Randy himself, that the original barn was permitted and built in the wrong place. In my opinion it is time to dismantle the power of ‘Team Gaylord’ and get a new objectivity in the prosecuting attorneys office. I invite anyone who desires to find out the full story to contact me.
I empathize, truly.
As an attorney myself I also try to keep in mind that my client is likely experiencing the legal situation before him or her for the first and last time in his or her life meaning two things: no question is irrelevant and I should expect confusion and frustration that requires patience and continued clarification. For all that I know, that was your attorney’s posture too.
It would also be fair to see the facts (the fee agreement) before assuming readers can draw conclusions.
Quite relevant here for needed context but left out of my earlier comment for fear of teaching a course on legal fees and practice were:
1. In the USA, the “American Rule” governs (it’s the reverse in the UK and elsewhere where the losing side pays)— here, the default is that each litigant pays his or her own legal fees regardless of who wins.
2. To mitigate this often high access bar to legal representation, many federal and state laws (statutes) include provisions that allow a prevailing party to force the losing defendant to pay the plaintiff’s legal fees. BUT, keep in mind that if the plaintiff loses, the usual outcome is that plaintiff’s attorney has worked, litigated and invested much for no compensation—in other words, the plaintiff (the alleged victim) bore little or no significant risk from the outset with respect to the costs to prosecute his or her claim. Should the attorney who took on that risk and prevailed for his or her client be allowed to have the defendant (not the client) pay his or her attorney fees? State and Federal legislators think so. And this has no bearing on the benefit derived (or objective sought) by the plaintiff’s action. Finally, the obligation to pay legal fees by the losing side can also be agreed to in writing as between private parties. The above are some common exceptions to the above “American Rule.”
3. None other than the good ole’ Abe himself imparted the very wise observation:
“He (referring to a lawyer) who represents himself has a fool for a client”
The frustration here might be better directed to the losing side (the County), assuming your facts are correct, who objected to your attorney’s fees. When attorneys themselves come under attack, they often hand the matter over to a colleague for obvious reasons, not least of which is emotional detachment.
My comments are general in nature for purposes of perspective. Without seeing and verifying all the facts, as a reader I can’t know anything with any certainty.
“One attorney on an island… business’ no good. Two attorneys on an island… business is thriving.
Based upon what Chris Graham has written, there was no incentive for Power to accept the court’s fee decision. Knowing that Sheryl was awarded $22,501, he considered her as his personal piggy bank for his fee challenge knowing he would win no matter what the final fee determination. No wonder she feels deceived. Power’s actions fit a pattern, chase the dollars. More later on how he used the San Juan Island School District as another personal piggy bank.
Not having a dog in this fight, and for the sake of continued clarity and my “real” interest here—i.e., how we fellow citizens think about these kinds of matters—it might be better to answer the following questions.
The answers will likely help with finding a more balanced, less nuanced, appreciation of the competing concerns.
1. If the attorney fees of the prevailing party are objected to, do additional fees on appeal typically continue to accrue to those awarded below at the trial level—whether or not the original attorney defends them, or another attorney he hires takes the case?
2. Is there a rational basis and logical nexus point that justifies comparing the award obtained by a plaintiff at trial, or in a settlement before trial, to the deemed reasonable legal fees charged by her attorney?—would your answer change if the defendant, not the plaintiff, pays those legal fees? Logically, should it matter either way?
4. If a plaintiff does not have the burden of paying for the legal prosecution of her case, is plaintiff reasonable in being upset that her attorney received a sum greater than she at trial, or in a settlement before trial? If so, why? or when?
My apologies Chris I did not mean to start a conversation about the complexities of legal system this one is pretty basic and is about ethical practices and following a contract. Bottom line again, he did not send monthly billing. If your fees were appealed would you hire another lawyer to defend you – NO. This is a decision they made without me. I have worked with/for three lawyers in the past (good land use attorneys) and we just do not behave like this. This is my opinion to share with others which is aside from what others have endured. Do I feel terrible for Michael Durland…100% YES. I do not appreciate the way lawyers and consultants take advantage of islanders which is why I have moved my consulting business home and working here full time. We have to care for people while we are here….there are no uhauls behind hearses.
Totally understand and I hope all works out well for you and your business here on the island. I naturally recoil at the hint of politics—not that there aren’t legitimate issues to contend with. The focus of my comments are deliberately elliptical in how they always revert back to how we as a community “think” and employ “reason” in our interactions. That’s particulary important to me for strengthening the big “D” in our democracy.
Thank you Chris, I am very blessed to always be busy.