BID Foes Fight City Solicitor Pick in Superior Court

Alan Seewald wants to be the new mayor’s top lawyer, but first he needs to drop a group of high-profile clients who are locked in a legal battle with the city. Alan Scheinman and Eric Suher don’t trust Seewald to keep their secrets, and are trying to block his going to work for their arch enemy in the case, the City of Northampton.

 

By DAVID REID

NORTHAMPTON – ‘Twas the day before Christmas, and Mayor-elect David Narkewicz was shopping for the right lawyer to serve as city solicitor. Time was running out; his two-year term as mayor would start just 10 days later on Jan. 3, 2012.

Among the candidates he called before the holiday was longtime former Amherst town counsel Alan Seewald, 54, a private-practice lawyer and political supporter (Seewald gave $100 to Narkewicz’s 2012 mayoral campaign) whose name kept coming up from people he’d asked for advice.

The two men talked that day; Seewald was told he was being considered, and said he was interested.

Two days later, on Dec. 26, 2011, Narkewicz called back and offered Seewald the job. It was an offer Seewald couldn’t refuse, but one he wasn’t in a position to accept.

Two weeks later, Seewald would be in court trying to eliminate the one obstacle standing in his way.

The BID Lawsuit: An Obstacle to the City Solicitor Job

This was the second time Narkewicz had reached out to Seewald to perform some heavy civic lifting.

In April 2010, then-City Council President Narkewicz appointed Seewald to a Charter Review Committee, and he soon was chosen by his peers to serve as chairman. Last March, Seewald reported back to the City Council that the 1883 charter is flawed, out of date and needs to be completely rewritten.

(Click here to see Northampton Media’s story on Seewald’s presentation of the committee’s report. A charter drafting committee is meeting all week to finalize a document for voters to approve this fall.)

We asked Narkewicz why he picked Seewald to serve as city solicitor, a job that currently pays up to $175 an hour and up to $100,000 a year for the non-staff position.

His answer: “because he [Seewald] is among the most able and experienced municipal lawyers in the Commonwealth of Massachusetts. He’s also a 30-year Northampton resident and taxpayer with a long history of civic and community involvement.”

City records show that City Solicitor Elaine Reall was paid $133,929 in Fiscal Year 2011.  About $90,000 of that was for her work representing the city in lawsuits or advising city officials; $28,000 was for her role as labor counsel; and the remainder, about $15,000, was reimbursement for filing fees and other expenses.

The position is a mayoral appointment not subject to City Council approval, although the legal budget must be OK’ed by the council.

Although he wanted the city solicitor’s job, Seewald – a partner in Seewald, Jankowski & Spencer, P.C. of Amherst who had served as an Amherst town lawyer from 1988 to 2006 – knew couldn’t accept the post right away.

The problem?

For almost two years, Seewald has represented three downtown property owners in their lawsuit against the Northampton Business Improvement District (BID) and the City of Northampton, Seewald’s prospective employer.

The clients – businessman and music mogul Eric Suher, lawyer Alan Scheinman and property owner David R. Pesuit – accused the city of creating the BID in violation of state law. (To see Northampton Media publisher Mary Serreze’s Valley Advocate 2009 article on that controversy, click here.)

To accept the job offer, Seewald knew he would have to withdraw from the BID case.

Seewald Takes Steps To Shed the BID Lawsuit

In a motion he would file with the Hampshire Superior Court late last month, he cited Massachusetts General Law, Chapter 268 A, Section 17 (c):

“No municipal employee shall, otherwise than in the proper discharge of his official duties, act as agent or attorney for anyone other than the city or town or municipal agency in prosecuting any claim against the same city or town, or as agent or attorney for anyone in connection with any particular matter in which the same city or town is a party or has a direct and substantial interest.”

The day after Narkewicz made the job offer, Seewald said, he started making phone calls.

According to his testimony in superior court last week, Seewald spent Dec. 27 checking out his options.

“I spent the day trying to decide if I would accept that appointment and, if so, what I needed to do in order to do so,” Seewald told Judge Mary-Lou Rup in court.

“I spoke with the office of bar counsel [State Board of Bar Overseers]. I spoke with the State Ethics Commission. I spoke with several lawyers who I respect and believed could carry forward in this case to see whether  they would at least consider speaking with the plaintiffs if I were to accept  this appointment.”

The next day, Dec. 28, 2011, Seewald called Narkewicz back. He said he wanted the solicitor’s job, adding that he first had to withdraw from the BID case.

The same day, Seewald drafted an emergency motion he would file later that day in superior court, asking a judge to let him withdraw from the case and seeking a delay in the BID lawsuit until his clients find a replacement lawyer.

Seewald also fired off communiqués to his three clients: an email and a follow-up Federal Express envelope containing a letter to his clients and a copy of his emergency court motion. (To see Seewald’s email and letter to his clients, click here.)

In Hampshire Superior Court last Friday, Seewald explained his desire to accept the city solicitor’s job, and his reasons for filing the emergency motion.

“I was honored to be offered the position, and I would feel privileged to represent this community in that way,” Seewald said in court. He vowed to protect his former clients’ information with a virtual firewall if hired by the city, and to stay away from the BID case altogether.

Legal canons allow attorneys to withdraw from cases if it can be done without “material adverse effect on the interests of the client,” Seewald said. Under the arrangements he proposed, including a stay of the case to bring replacement counsel up to speed, that could be done, he said.

Besides, although all witnesses have been deposed, no trial date has been scheduled and both sides are preparing cross motions for summary judgment, asking a judge to decide the case based on law.

But Seewald said a quick hearing on his motion was needed because the city charter requires new mayors to appoint the city solicitor in January; waiting until the lawsuit is over could take many months, and would scuttle his appointment altogether.

From Seewald’s clients, there was no sympathy for his predicament.

Clients Scheinman and Suher Blast Seewald for “Betrayal”

On one point, everyone who spoke at Friday’s court hearing agreed: the BID lawsuit should be delayed.

The city’s lawyer, Eric Lucentini (City Solicitor Elaine Reall was out of town), said he had no problem with Seewald’s leaving the case, and trusted him to keep client confidences.

BID lawyer Michael Pill (filling in for co-counsel Harry Miles) said he was unopposed to anything in Seewald’s motion. And a delay would be needed anyway, he said, since it will take him a couple months to get up to speed and file his own motion for summary judgment.

But Suher and Scheinman, who attended the court hearing, vehemently opposed the motion.

They described Seewald’s intention to drop them as clients and work for their legal opponents as “a betrayal” of confidence, a lapse of judgment and a violation of ethics.

Scheinman pointed out there was no personal or professional emergency that required a swift hearing on the matter.

“It’s a problem of Mr. Seewald’s own making,” Scheinman told Judge Rup. “It’s not sickness or a death, rather it’s his voluntary act of abandonment of his clients – not just for another job, but to represent their opponent. He should have completed this case before considering taking this job.”

According to Scheinman, Seewald’s withdrawal  from the “very complex and well-developed case” would present real problems for the plaintiffs.

Already, he said, there have been thousands of pages of documents, and hundreds of emails and other filings. Finding a lawyer equipped to handle the case, he said, would be difficult: “Those people don’t come easy.”

Scheinman called Seewald’s secret talks with Acting Mayor Narkewicz a betrayal and said his desire to dump their case was “a voluntary act of abandoning his clients.” Before even talking with Narkewicz, Seewald should have alerted his clients that a job offer was on the table, Scheinman said.

And as for Seewald’s promise to protect his former clients’ inside information while serving City Hall, Scheinman said he doesn’t trust Seewald to keep his word.

“To me that strains credibility,” said Scheinman. “He also promised us he would represent us.”

Emails Reveal Past Tensions Between Seewald and his Clients

To make his point, Scheinman submitted to the court record a February 2011 email exchange between himself and Seewald.

In the first email, Scheinman describes Suher’s concerns that Seewald was too close to City Hall insiders to enthusiastically pursue the lawsuit. (To view the emails, click here.)

In his Feb. 17, 2011 email, Scheinman said Suher, who was paying the legal bills, “worries that your personality and personal politics might prevent you from fully committing your efforts to an outcome that you might find objectionable. . . . at this time, I’ve seen no reason to share this view.”

In fact, Scheinman added, “I find all of the pleadings that you’ve filed to be excellent. . . . I think that your legal scholarship is excellent . . . and while I haven’t always agreed with your opinions, I hold your opinions in high esteem.” But he urged Seewald to speed up filing a motion for summary judgment.

In his response to Scheinman later that day, Seewald reacted strongly.

If Suher “is worried that my personality or personal politics (about which he knows nothing) are impeding my zealous representation in this matter,” Seewald wrote in his email, shifting to capital letters: “THE PHONE BOOK IS FULL OF LAWYERS . . . TELL HIM TO FIND ANOTHER. PAY ME (CURRENTLY $9K IN RECEIVABLES) AND I WILL DISAPPEAR. I’ve been doing this for too long and I’m way to [sic] busy with clients who actually pay attention to their cases to allow a client to question my commitment.”

Whether lawyer Seewald and his clients got along after that is something that remains behind the veil of lawyer-client privilege, which Scheinman lifted only for these emails.

A Lack of Trust, and the Judge’s Pending Decision

But the animosity of Scheinman and Suher towards their lawyer was evident in their courtroom testimony. Simply put, they don’t trust him.

“In spite of his word, in spite of indignant defense of his commitment to us, (Seewald) now wants to abandon us,” said Scheinman. He said Seewald’s “betrayal not only harms us but it creates a bad public impression for our profession’s integrity.”

If Seewald goes to work for the city, Scheinman added, he will be taking intimate knowledge of his former clients’ legal strategies, and the strengths and weaknesses of their case.

Eric Suher Opposes BID Before Northampton City Council from Northampton Media on Vimeo.

Suher said he was “more than dismayed,” and “shocked” that Seewald wanted to drop the case “to work for our opponent” and that his actions showed “a blatant disregard for any ethical standards.”

Earlier in the hearing, lawyer Pill, who represents the BID, minimized the effect of Seewald’s planned departure. He told the judge the BID was the main defendant in the case, not the city, and that its lawyers were handling most of the legal work. He described the city’s role as peripheral to the case.

Scheinman and Suher disagreed. After all, they said, the thrust of their case is that the city illegally created the special BID district, ignoring or flouting state regulations.

“The truth of the matter is this, your honor,” Scheinman told Judge Rup, “our challenge is against what the city did when it adopted this BID.” He said the civil lawsuit alleges the city violated the procedural requirements of Massachusetts General Law Chapter 40 O, the enabling statute, when it gave its stamp of approval to the BID.

“If we were to win this case against the city and not win it against the BID, the BID would not exist,” said Scheinman.

Suher echoed the point, saying the city was the main defendant in the case, and that Seewald’s switching sides would be a blow.

“We would not be here if not for the city’s adoption of the BID enabling legislation,” said Suher.

“I feel our case is greatly prejudized [stet] by the city trying to hire our attorney,” Suher added, describing Seewald’s actions as “a blatant disregard for any ethical standards.” As a layman, he said, “It really smells.”

Scheinman told Judge Rup that he objects to Seewald removing himself from the case, and asked her to keep Seewald’s name as the “counsel of record.” If that were done, it would effectively prevent Seewald from taking the city solicitor’s job.

Scheinman also asked the judge to file a conflict of interest complaint with the Board of Bar Overseers. She refused, adding that her job does not include ruling on whether Seewald had violated ethical standards.

During his earlier comments, lawyer Pill had praised Seewald, saying the two first met when they were lawyers working for the University of Massachusetts legal aid office.

Pill praised Seewald “as a person and as an attorney,” and predicted Seewald would be “the best city solicitor that the City of Northampton would have had in years.” No reflection on former city solicitors, whom he said are great lawyers. “It’s a comment on how good he is.”

And in his final comments, Seewald vowed to keep confidences if he is severed from the BID lawsuit.

“[W]ith regard to taking privileged (information) from these clients and then benefiting the next client with that information, I can assure this court that my first obligation is to the legal profession and to the canons of ethics,” said Seewald. “And I would never violate . . . any confidences of any client.”

Seewald also said his request to withdrawal from the case was not unusual.

“I regret that my clients are unhappy with me,” Seewald told the judge. “But this sort of thing happens all the time when lawyers go into public service,” leaving private practice to take a government position.

Judge Rup said her role was to rule on the requested stay (or delay) in the lawsuit and to decide whether Seewald can withdraw from the case.

To that point, the judge ordered a one-month stay of the BID case, and scheduled a status hearing for 3 p.m. on Feb. 15. She took Seewald’s withdrawal request under advisement, and predicted her decision on that would come “well in advance” of the hearing.

*    *    *

If the judge allows Seewald to take the city solicitor’s job, his former clients could take another tack.

As it is, Scheinman has all but promised to file a complaint with the Board of Bar Overseers, alleging Seewald violated legal ethics by “negotiating” with Narkewicz about a potential job without telling his clients, who were suing the city.

And the former clients could file a civil suit against Seewald for undermining their lawsuit.

In any case, Scheinman, Suher and Pesuit will have to find another lawyer — whether they keep Seewald on the hook as their counsel-of-record or not.

 

© 2011 Northampton Media

David Reid can be reached at dreid@northamptonmedia.com