You’ll remember yesterday I wondered whether, all joking aside, Aguirre’s lawsuit against Willkie Farr would end up leaving the city of San Diego vulnerable to paying the legal bills for that law firm.
After all, the city’s engagement letter with Willkie Farr included a clause that specifically says the city will indemnify the law firm if someone makes a complaint against it unless, and until, that complaint is proven in court to be valid.
I asked for lawyers’ opinions and I got them. You wouldn’t believe it but their analyses tended to correspond to their overall feelings about Aguirre.
First, of course, I did speak again to Assistant City Attorney Don McGrath. I asked what he thought of the clause in the engagement letter and if the city would start to again see invoices from Willkie Farr.
“It doesn’t bother me, if that’s your question,” McGrath said.
He said that he anticipated dealing with this clause at some point in the many hearings and documents that this case will produce.
McGrath said the clause is pointless.
“You can’t indemnify yourself against negligence before you commit it,” he said. “Otherwise, there’d be no lawsuits. You can’t contract yourself out of negligence that may occur.”
But does the clause in the Willkie Farr engagement letter attempt to do that? It says the city has to pay until the negligence is proven.
Here was another interpretation from a lawyer who is often supportive of Aguirre.
While I’ve seen only what you’ve provided, I doubt that the indemnity provision hurts Aguirre in any way. “Indemnity provisions” provide protection against third-party claims. “Releases” and “waivers” provide protection against first-party claims (like the one the city is making). Furthermore, lawyers may not limit their liability for injuries to clients in advance—that is, through releases and waivers prior to the existence of a claim.
OK, that seemed a little more clear. Now for the other side.
Here’s a lawyer’s take. He’s not so supportive of Aguirre usually:
The way I read this clause, is that “until” a final adjudication (this would presumably be a court judgment and a successful appeal) that the actions WF&G were either negligent, tortuous or beyond the scope of the engagement, the City is on the hook for all legal fees and costs and must indemnify WF&G.
So, what this appears to mean is that if the City is going to sue WF&G, they must take a huge financial risk and hope that they are ultimately successful in court on one of the three mentioned grounds. If not it appears they eat all the costs. It also appears that the City would be required to pay the legal bills along the way until they were successful. Mind boggling.
I’ll let a judge try to figure it out, I suppose.
Finally, McGrath made one other point related to my previous post. I had wondered why the city attorney ever sought out authorization from the City Council for some of his legal pursuits. After all, doing that only part of the time just seemed to bolster the idea that he has to do it all the time.
McGrath didn’t necessarily touch on that point, but he explained that he had to take the suit against Willkie Farr to the City Council but only so that the body could approve the contingency contract that the city wants to do with outside attorney Bryan Vess, who will pursue the case.
“That’s the only reason to go: to get Vess’ contract approved,” McGrath said.
So that brings up the final oddity: The city attorney already announced that Vess’ was on the case.
From Aguirre’s news release the other day:
The civil litigation is being prosecuted on a contingent fee basis on behalf of the City by private attorney Bryan C. Vess, who has advanced the costs of the lawsuit.
If the City Council hasn’t approved his contract, is it a bit preliminary for that?