LIHUE — Denied. A review committee rejected an offer from a pair of attorneys to defend the County of Kauai for free in the lawsuit challenging county Ordinance 960 related to pesticides and genetically modified crops. The lone offer to
LIHUE — Denied.
A review committee rejected an offer from a pair of attorneys to defend the County of Kauai for free in the lawsuit challenging county Ordinance 960 related to pesticides and genetically modified crops.
The lone offer to provide pro-bono representation was submitted Jan. 27 by Teresa Tico, former head of the Kauai Bar Association, and Peter Schey, head of the Center for Human Rights and Constitutional Law.
The county said Tuesday it passed on the offer because the attorneys weren’t qualified to handle the case filed last month in federal court.
“The committee found the submission to be non-responsive to the bid requirements, and further determined that the firm did not have the requisite qualifications and experience for the job,” the county said in a press release.
Tico said she was surprised the county felt she and Schey weren’t qualified.
“That’s nonsense,” she said. “We certainly have the qualifications and we made every effort to be responsive to their request.”
The problem, according to Tico, was that the county wanted her to disclose every law firm she has every worked with, as well as every case she has been involved in.
“I’ve been practicing law for 38 years and I couldn’t possibly tell you how many cases I’ve handled,” she said. “However, the number would be in the thousands.”
The pro-bono solicitation was issued in response to offers by several law firms to represent the county free of charge in any lawsuit that might arise from the passage of Ordinance 960, according to the release. On Jan. 30, the day before the deadline for resume submissions, a protest to the solicitation was filed by Maui attorney Lance Collins.
Collins’ protest said the attorneys couldn’t offer all of their work for free and the county was acting unethically by asking them to do so.
That protest was denied by the county on the grounds that it did not conform to requirements contained in Hawaii Administrative Rules because, in part, the envelope wasn’t stamped with the word protest on it, and it wasn’t mailed to the county properly. However, Collins subsequently appealed the denial to the state Department of Commerce and Consumer Affairs.
A pre-hearing conference on the appeal is scheduled for Friday.
Although the appeal is pending, the qualification process for the county to obtain legal representation was completed Monday. The county is allowed to continue the procurement process to move forward, even while an appeal is in motion, if necessary, to protect the substantial interests of the county, the release stated.
“Normally, we would allow the appeal process to run its course,” Finance Director Steven Hunt said in the release. “However, the county is required to respond to the lawsuit filed in federal court over Ordinance 960 on the same date as the pre-hearing conference on the appeal. It is imperative that we secure representation as soon as possible so that we can respond to the lawsuit in a timely manner.”
When reached Tuesday afternoon, Collins said he plans to file a motion today reinstating the freeze until the protest is resolved.
“The federal court will not rule against the county while it goes through the normal procurement process, including resolving any protests,” Collins said. “The county’s secret request for lifting the stay on procurement last week while not informing my office seems to suggest bad faith on the county attorney’s part.”
But the county said it’s finished with the pro-bono solicitation, anyway.
“As a result of the non-responsive bid and the absence of qualified applicants, the pro-bono solicitation has concluded,” the county release states.
The county will now seek to retain a law firm for the defense of the Ordinance 960 lawsuit from a pre-qualified list of attorneys for the current fiscal year, in accordance with state laws.
A request for special counsel funding for $75,000 will be heard by the Kauai County Council during today’s special meeting, which begins at 8:30 a.m. The request was forwarded to the council last week as a contingency in the event that the pro-bono solicitation was not successful, the county said.
If the funding is approved by the council, a contract with the top-ranked firm will be negotiated in a timely manner, according to the release.
In its response to her offer, Tico said the county never addressed her ethical and financial concerns. Questioning that the county’s definition of pro-bono may violate a lawyers obligations under the Rules of Professional Conduct, Tico contacted the Office of Disciplinary Counsel for an opinion.
The ODC told her that the county’s definition violated the rules, which prohibit lawyers from paying litigation costs without the client’s agreement to reimburse those costs, she wrote in her offer.
In her offer, Tico also expressed her disappointment in Kauai Mayor Bernard Carvalho Jr.’s decision in October to release the county attorney’s legal opinion on Bill 2491. She wrote that his decision to do so “severely undermines the credibility of any defenses we or any other attorney representing the county may present.”
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, 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.
