More information was released last week about legal fees in the “Dyas triangle” lawsuit, but it was not obtained from the city clerk’s office as is customary for public records requests.

The information about the hourly rate of attorney’s fees billed by the Hand Arendall law firm to Fairhope was sent by the lead attorney for that firm representing the city in the case.

“Regarding billing rates, the net rates actually paid by the City have been much less than the rates on the file due to offsets from the City’s insurance carrier,” attorney Caine O’Rear wrote to the Courier on Aug. 11. “For example, the ‘rate’ for my time on this file is $300 per hour, but the City itself has actually paid much less than that when applied to the overall hours worked by me.”

O’Rear also stated that Lisa Cooper, another law firm attorney representing the city, had rates of up to $240 per hour.

“However, as with my ‘rate,’ the City would not have paid a net rate anywhere close to this after applying insurance payments to her overall hours,” O'Rear stated.

The lawsuit was filed in April 2008 by members of the Dyas family, claiming the city and Mayor Tim Kant thwarted their efforts to develop property at the intersection of U.S. Highway 98 and Veterans Drive, while allowing development of a similar mixed-use project nearby. A jury trial in the case is scheduled for February in federal court in Mobile.

According to city records, the premiums billed by the city’s carrier for liability insurance since 2008 have been $259,023. The Alabama Municipal Insurance Corp. will defend most cases brought against the city, according to the policy. However, the rates for attorney fees are capped at about $165 per hour in defense of those cases, according to a city official.

It is that difference between the rates charged by the Hand Arendall attorneys to the city, and the amounts paid to the firm by AMIC, that apparently resulted in the “offsets” referred to by O’Rear.

The release of the information by O’Rear was in response to the fourth e-mail sent by the Fairhope Courier to the Fairhope city clerk regarding the hourly rates paid to attorneys representing the city in the case.

“We are writing to note that the city’s Aug. 6 e-mail has again refused to address our request for the hourly attorney’s fee rates for the lawyers representing the city in the case,” the Courier’s Aug. 10 e-mail stated. “Such information is clearly covered by the state public records law and not subject to any exemption or attorney-client privilege, according to the general counsel for the Alabama Press Association.”

The Courier’s first request for the hourly rate information was sent June 30, which was followed by requests on July 15 and Aug. 4. The clerk’s office responded on July 13 and Aug. 6, but in neither of those letters did it provide the hourly rates of O’Rear, Cooper, and another attorney in the case, as had been requested. Instead, both letters referred additional questions to attorneys representing the city.

“If you need to discuss this further, please contact our counsel as previously advised,” the clerk’s Aug. 6 letter stated. “This is appropriate when a pending litigation matter and issues of confidentiality are involved.”

Attorneys for the Alabama Press Association, the Alabama League of Municipalities, and the Fairhope city attorney stated recently that the hourly rate information is subject to the state public records statute.

“The hourly rate and amount of attorneys fees paid are public record,” Lori Lein, ALM’s deputy general counsel, stated in an Aug. 11 e-mail. “What those fees relate to in terms of advice or service provided would most likely be protected by attorney-client privilege. However, the dollar figures paid would be public information.”

The general counsel for the APA stated recently that it was the city clerk’s office that should be releasing public information and from which the public and media should request that information.

“In my opinion, the documents relating to the submission of bills and payment of bills from public funds should be obtained directly from the public entity,” Dennis Bailey, APA’s general counsel, stated in a July 29 e-mail.

O’Rear stated in his Aug. 11 e-mail that the reason the clerk had referred the Courier to him was “because your question regarding rates involves some explanation.”

He also stated that if the city prevails in the case, he would be seeking a court order for reimbursement of all attorney’s fees incurred in defending the case to be paid to the city by the plaintiffs.

O’Rear also questioned whether the Courier had sought information about legal fees from the firm representing the plaintiffs in the case.

“Finally, in order to be fair, (is the Courier) obtaining information on the attorney’s fees and billing rates being charged by the two law firms representing the Dyases in this case?” O’Rear asked. He did not note in his statement that such information would not be subject to the public records statute as the plaintiffs are not a part of city or state government.

A recent article in the Courier reported that the Hand Arendall law firm had billed the city $472,454 for fees in the Dyas case. That information was provided by the clerk’s office in response to the Courier’s June 30 request.

“We have already provided you the information on overall fees invoiced to the City in the case,” the clerk's Aug. 6 letter stated. “I am not sure what public purpose is achieved by your request for us to do additional work to break down fees in a manner which suits your own purpose when you already have the total expenditure by the City.”