FAIRHOPE, Ala. - Editor’s note: This article is the latest in a series on the cost of private attorneys, how they are hired, and related issues.

With no written contract signed in advance, a Daphne lawyer has provided legal assistance to the city at $300 per hour in a trial scheduled Monday about the proposed construction of a public access deck at Nichols Street between the bay front houses of two Fairhope residents.

The procedure by which the city obtained that assistance last month from attorney Sam Irby is apparently the first test this year of a new policy by which Fairhope will hire lawyers to represent the city in lawsuits.

Fairhope residents Gardiner Green and Thomas Millette sued the city in Baldwin County Circuit Court last July to block the construction of a public landing on bay front city property.

A public landing has been sought there by a number of neighborhood residents since the 1990s. It would be similar to an existing public landing just north of Nichols Street at White Avenue, although it would not have a pier.

The March 14 trial before Circuit Judge Robert Wilters has been pending since Nov. 15, when the trial date was continued to allow additional discovery by the plaintiffs, who are represented by Daniel Blackburn of Bay Minette.

Last month, City Attorney Marion “Tut” Wynne, who will try the case for the city, requested approval from the City Council to hire a private attorney to assist him in the case.

The minutes from the Feb. 14 council meeting state that Wynne was authorized “to hire who he needs attorney-wise for the Green case.” He was also instructed to “ask the firm to submit a letter of engagement which will be brought back to the City Council on February 28, 2011.”

Prior to that Feb. 28 meeting, Wynne spoke with Irby, who wrote a legal memorandum on a complex real estate issue in the case, which was the legal assistance the city sought, Wynne said last week.

That legal assistance was provided by Irby prior to a written contract with him being reviewed and approved by the council.

At the Feb. 28 council meeting, Wynne informed the council that Irby’s rate was $300 per hour.

The council approved the hiring of Irby at that rate, which it capped at $3,000 for services in the Green case.

The council instructed Wynne to bring a written contract for the council’s approval to its March 14 meeting, which will occur the night after the trial took place that morning.

The impending trial date, and that the council only meets every other week, were the reasons the legal work was done prior to the council’s approval of a written contract, Wynne said on March 3.

“Sam has done some of the work, and he is still doing some,” Wynne said. “(Irby) put himself at risk because if it hadn’t been approved he wouldn’t have been paid. I think (he) was kind to put himself at risk and realize that he wasn’t officially hired.”

City’s procedure for hiring private attorneys

A new policy for handling attorney contract was announced by Council President Lonnie Mixon last year, which followed reporting by The Fairhope Courier that uncovered the city had not required written contracts and council approval for at least the past 10 years that Mayor Tim Kant had been in office.

“Any future (attorney) contracts would have to be brought before the council to be approved, as well as the hourly rate,” Mixon stated in a Dec. 31 article of the Courier, adding the council’s goal was to have everything done regarding attorney contracts “to be open and above board and for everybody to know what’s going on.”

Kant told the Courier last year he had inherited the past policy of hiring attorneys without written contracts or council approval from his predecessor former Mayor Jim Nix.

Alabama law requires that all municipal contracts be in writing and that they be approved by the council prior to their performance.

Recently, Mixon restated the new policy in an e-mail to Fairhope resident James Watkins, who publishes The Fairhope Times blog about local news.

“The practices of the past (no written contracts) have been corrected and we now require a written contract,” Mixon stated in the Jan. 31 e-mail. “Thanks for your continued concern and interest. We need more input from the citizenry.”

Watkins said he wrote the council seeking the status of any new policy for handling attorney contracts because the old policy created no paper trail and thus lacked public accountability.

Mixon stated in the Dec. 31 Courier article that a new policy – that is, one of bringing Fairhope’s handling of private attorney contracts into compliance with Alabama law – would be appropriate to discuss at a council meeting this year.

That discussion of attorney contracts by the council during an open meeting has not yet occurred.

“If we’re at the beginning of a case where a lawsuit has just been filed, then we have time to go ahead and enter into an engagement with the lawyer,” Wynne said. “But when you have a trial date on March 14, and you have council meetings every two weeks, you’ve got to move expeditiously and efficiently.”