LIHUE — A pair of attorneys have followed through on their offer to defend the County of Kauai free of charge in a lawsuit filed last month by three biotech seed companies related to the passing of Ordinance 960. However,
LIHUE — A pair of attorneys have followed through on their offer to defend the County of Kauai free of charge in a lawsuit filed last month by three biotech seed companies related to the passing of Ordinance 960.
However, it comes with conditions. And whether the county accepts the offer is yet to be seen.
On Jan. 27, Teresa Tico, former head of the Kauai Bar Association, and Peter Schey, head of the Center for Human Rights and Constitutional Law, responded to the county’s solicitation for pro bono legal services.
Echoing previous statements, Tico said Thursday that she and Schey believe the bill related to pesticides and genetically modified crops is “sound.”
“We would really love to defend this bill,” she said. “I believe it’s an important bill, not only because it deals with pesticide regulation but it’s about community based management.”
However, their offer did not come without ethical and financial concerns.
The county attorney defines pro-bono to mean “professional work undertaken voluntarily and without payment as well as donation of all related litigation and collateral costs and expenses, including but not limited to court costs, court reporter costs, travel and per-diem expenses, copying expenses, legal research expenses, communication expenses (and) expert fees.”
Questioning that the definition may violate a lawyer’s obligations under the Rules of Professional Conduct, Tico said she contacted the Office of Disciplinary Counsel on Oahu for an opinion.
“I was informed by ODC that the County’s definition … violates Rule 1.8(e) of the Rules of Professional Conduct which prohibits lawyers from paying litigation costs without the client’s agreement to reimburse the costs,” she wrote in her offer to the county.
And even if there were no violation, Tico said that as a solo practitioner she does not have the financial ability to pay all litigation costs.
“Pro bono counsel will donate hundreds of hours of time in defense of the lawsuit and to expect pro bono counsel to also agree to pay an undetermined amount of litigation costs is unrealistic,” she wrote.
Tico also provided a disclaimer regarding the probable outcome of the case, which depicted her disappointment in Kauai Mayor Bernard Carvalho Jr.’s decision in October to release the county attorney’s legal opinion on Bill 2491.
“If selected to defend the County, we cannot provide any assurances regarding the outcome of the case, although we would exercise our best efforts to defeat the lawsuit,” Tico wrote. “Unfortunately, the Mayor’s unauthorized release of the County Attorney’s opinion, which was stamped on both front and last pages “Confidential Attorney Client Communication and/or Attorney Work Product — DO NOT DISCLOSE” severely undermines the credibility of any defenses we or any other attorney representing the County may present.”
In a letter to the County of Kauai Purchasing Department, Schey confirmed his agreement to co-counsel with Tico.
Prospective bidders, however, will have to wait to find out if they have been selected until procurement protest filed by Wailuku, Maui-attorney Lance D. Collins has been settled.
That legal challenge, lodged against the county last week, seeks to rescind the county’s notice and nullify prospective bids.
“Because of the protest that was filed by Mr. Collins everything related to the procurement has stopped pending the result of his appeal,” county spokeswoman Beth Tokioka wrote in an email.
Some of the costs that attorneys must bear as a part of the county’s definition of pro bono legal services in their solicitation violates state ethics laws, Collins claims.
Collins also alleges that county officials violated the Kauai County Charter by not having the County Council authorize the solicitation for special legal counsel.
His case is scheduled to be heard by the state Department of Commerce and Consumer Affairs’ Office of Administrative Hearings on Feb. 21.
Last month, Syngenta, DuPont Pioneer and Agrigenetics Inc., a company affiliated with Dow AgroSciences, filed the complaint in U.S. District Court in Honolulu, which aims to block implementation of the county legislation.
Ordinance 960, according to the complaint “irrationally prohibits Plaintiffs from growing any crop, whether genetically modified or not, within arbitrarily drawn buffer zones inapplicable to other growers, and restricts Plaintiffs’ pesticide use within those buffer zones.”
“The Bill also imposes unwarranted and burdensome disclosure requirements relating to pesticide usage and GM crops that compromise Plaintiffs’ confidential commercial information and unnecessarily exposes Plaintiffs to risks of corporate espionage, vandalism and environmental terrorism,” states the complaint.
Ordinance 960, set to take effect in August, requires Kauai’s largest agricultural entities to disclose their use of pesticides and genetically modified crops, as well as establish buffer zones around sensitive areas.
• Chris D’Angelo, environmental reporter, can be reached at 245-0441 or cdangelo@thegardenisland.com.
