One of the issues facing fire service leadership is when to call an experienced attorney to assist the department in mitigating a problematic legal issue in their department. Every fire department chief has interacted with an attorney on a routine rather than emergent legal issues facing the department. Those range from labor contracts, policy creation, purchasing fire apparatus or firefighter safety gear, acquiring property and building new station to working on complex legal issues of annexations or mergers of departments and services.
As attorneys, our job is to work with department appointed or elected officials to avoid the rough seas of personnel issues, policy violations, vehicle accidents, to harassment or discrimination claims that are problematic to the department. Attorney’s jobs are to work with the department to look long term and foresee legal issues that may cause long term and short term harm the department. We also work with fire departments to mitigate those problems that arise from internal and external sources.
In my experience I have found there are no real legal emergencies facing a fire department. You say, “not true” because just the other day ---------------. If you examine the root cause of an “legal emergency”, it is based on the inaction of the Fire Chief or elected officials by not taking affirmative action to identify and solve the problem early-on based on your established polices or through past similar experiences. Hopefully there is a good outcome but if not, then a call to your attorney is necessary and the earlier is better to help you work through the problem and unravel the knot of additional problems created by the actions of the fire chief trying to do the right thing.
I stress the need for comprehensive, up-to-date and enforceable policies that are actually enforced. A good set of policies helps the fire chief and department avoid a lot of un-necessary problems.
So, let’s examine the process as to when to retain the services of an attorney in an “administrative 911 emergency”:
Retaining legal counsel – retention of legal counsel is a formal process where you hire an attorney to represent you or your department. I suggest that you look first to the municipality, district or private retained council already available. Many times, those organizations already have a person on staff or retainer that can assist in these situations. Avoid “lawyer shopping” to find the best answer to your problem. I get those calls and I ask, who else have you talked to? They usually say they talked to their current counsel but did not like the answer. Sometimes, the attorney you call may be representing the opposing side and you may have violated a client confidentiality and at worst gave away your problems and solutions. Also there is no attorney client privilege established if the attorney you are having this casual conversation is not retained, they are free to discuss your issue with anyone interested in the current department problem.
Investigate thoroughly and document adequately – before resolving a situation, the Chief must provide a thorough investigation of the situation. Remember there are two sides of every story and it is the responsibility of the chief to provide that investigation. You can do that internally or hire an investigator or an attorney to perform the investigation. NEVER be the judge and jury, especially on personnel issues as you will violate the employees Constitutional protections. Document the issue to an exacting detail as you cannot rely on your memory three or more years from the date of the event if there is a lawsuit and trial. My rule of thumb is to document enough to not rely on your memory and to place the retained attorney in your shoes so they know exactly what has occurred when it occurred. This is a process necessary to document everything over the many days the problem is occurring until the resolution of the problem. Keep those documents in a secure place, and DO NOT discuss the details of the documentation with anyone and especially discussing the issue over your email system or in other correspondence.
Be the competent fire chief – I can appreciate the “good fire chief” trying to help the department by managing a legal situation by themselves until there is resolution or if the problem then turns too difficult to resolve then turns to the attorney to assist in resolution. I can also appreciate the other type of fire chief who is quick to pull a trigger on a legal issue with a poor outcome and then go to the attorney to unravel the issue they created – usually later than earlier. I prefer the first, but can appreciate the complexities of chief’s personalities that can make an attorneys day.
For the lawyer – who is the client? Is there attorney client privilege if an attorney does the investigation? Is there “work product” created from the investigation thereby the content and results of the investigation and outcomes are protected under the work product rule during the investigation and is that protected? Ah, the compound question with the answers that follow - The attorney needs to be laser focused on the question of “who is the client?” With the multilevel complexities of fire departments providing services for cities, towns, fire districts or private fire departments, there needs to be an identification of the client by the attorney. Sometimes, with multiple phone calls, that may be difficult, but that is the attorneys responsibility. Is there a “privilege” to the attorney client relationship and the answer is yes. Privilege protects all communications between a professional legal adviser and his or her clients from being disclosed without the permission of the client. Is that conversation protected from a FOIA or Public Disclosure and the general answer is yes but as always there are exceptions to the rule. Finally the “work product rule” is a principle that provides qualified immunity to the work product of an attorney from discovery or other compelled disclosure.
In closing, Fire Chiefs want to do the right thing – sometimes they confuse the issue, do the wrong thing, thereby creating another more complex issue. Here are a few tips:
Preventing legal fires is your job. Work hard to avoid these events, work closely with your retained legal counsel and listen to their advice. Only you can prevent Legal Fires.
Fire Law Court Blog – 5/17/19 – Murphy, Varone and Pinsky. http://www.blogtalkradio.com/fireengineeringpodcast/2019/05/16/fire...
Wex Legal Dictionary – Work Product Rule. https://www.law.cornell.edu/wex/attorney_work_product_privilege