The second letter, addressed to Curry and Goff and dated June 6, 2019, included a “revised invoice for $19,365, reflecting additional fees incurred since the May 10, 2019 claim.”
“Mr. Frazier, in direct connection with his duties as a supervisor, and in furtherance of his duties in serving the locality, has been required to respond to actions initiated by counsel for the Board of Supervisors,” wrote the pair from the Offit Kurman law firm, pointing out that because of Bragg I Frazier was served with two subpoenas and there’s been a request for his deposition.
“Because there is an obvious and substantial conflict of interest in representation by counsel for the Board in also representing Mr. Frazier, he has had to obtain us as independent counsel,” the attorneys wrote.
In a lengthy and detailed written response to the pair of invoices, Goff informed the BOS that the Virginia Code the claimant invoked to consider its claim “requires the County Attorney to advise the Board if the claim is illegal, not in proper form, or should not be allowed for any other reason.”
That said, Goff pointed out that Frazier “is not a party in Bragg I, as a defendant or otherwise, meaning he has nothing at risk in that case regardless of the outcome.”
Furthermore, said the county attorney, it was a “misnomer” to refer to the attorneys’ invoice as being a “claim” because there is no legal basis for a “right to payment” in this particular case.
Goff also argued that there’s nothing in the cited code about an individual member of the BOS, Frazier in this case, “having the right to employ counsel for themselves on such terms and conditions as they please at the expense of the County.
“Employment of counsel is discretionary with the Board, and the Board has not exercised its discretion to employ the Claimant as counsel for anyone,” Goff wrote. “Section 15.2-1520 . . . is only allowed where the person who is to receive the legal services is a ‘defendant’ in a legal action, and here Mr. Frazier is not . . . Since he is not a defendant in Bragg I, he cannot avail himself of 15.2-1520 . . . to provide a right to be paid.”
Goff added that Frazier “had no authority by signing such an agreement [with his attorneys] to bind the county to do anything,” not to mention his seeking private counsel was “never approved, or budgeted for, by the County. They have never even been seen by the County.
“If Mr. Frazier can do this, he could unilaterally impose on the County onerous terms and open-ended financial obligations that may be in his interest, but not in the public interest,” noted Goff, who also serves as Commonwealth’s Attorney.
Goff also took the opportunity to remind the board that the two attorneys hired to assist the county attorney in representing the five named defendants in the Bragg I litigation bill at the negotiated contract rates of $150 per hour (not to exceed 8 hours per week) and $175 per hour.
According to records obtained by this newspaper, for the 20-month period dating from September 2017 through May 2019, the Rappahannock office of the law firm Walker Jones has charged the county $19,692 for representing defendants in Bragg I — virtually the identical amount the pair of Tysons attorneys are trying to bill the county for 48 hours of work on behalf of Frazier.
“While the Claimant may be worth such [$350-$400 per hour] fees, this fee disparity, and the resulting impact on the County budget, are one example of why any employment of counsel under 15.2-1520 was designed by the General Assembly to be with the Board and at its discretion,” noted Goff. “The Board would want to know what it was getting into before obligating the County.”
Even if Frazier’s legal bill did constitute a “claim,” the county attorney continued, “the nature of each separate item for which a charge is made must be ‘specifically stated.’ All services rendered have been ‘blacked out’ on the bill, and are not specifically stated,” and minus a fee agreement it is “impossible to judge whether they were proper.”
After Goff informed the Offit Kurman attorneys that their “claim” to the Board required it be “verified by affidavit,” attorney Stringham swiftly submitted an affidavit dated June 6th, 2019, stating among other things that the law firm expended 48.5 hours of work on the Bragg I litigation, and that its billing rates of $350 and $400 per hour respectively “are reasonable for this action.”