St. Pete Beach pondering lawsuit against former attorney

The city is considering suing its former legal firm after losses have been incurred.
Published September 23 2015

ST. PETE BEACH — The city is considering filing a malpractice lawsuit against its former legal firm, Bryant Miller Olive, which was unsuccessful in defending the city in two separate cases involving Sunshine Law violations.

As a result of those appellate court losses, the city faces paying more than $1 million in court-imposed attorneys fees and court costs, in addition to the more than $2 million it already had paid BMO in those and other related lawsuits.

In both cases, the 2nd District Court of Appeal overturned lower court rulings favoring the city and found the city had violated the state law that guarantees public access to most records and meetings.

An independent Clearwater attorney, Marion Hale, hired by the commission more than a month ago, reported Tuesday that she believes BMO committed malpractice in one of the two cases.

"The City Commission has every reason to rely on her (BMO attorney Susan Churuti), no reason to doubt the information that was given. Bryant Miller Olive breached its duty," Hale said.

She also reviewed court filings and arguments, as well as transcripts of private meetings between the commission and BMO attorneys.

Hale said BMO allowed the commission's private discussion to stray far afield from what was allowed under the state exemptions to the Sunshine Law. She also stressed that commission members, as laymen and not lawyers, could not be expected to understand the consequences of their actions.

City officials expect attorneys for Jim Anderson, who sued the city in the Sunshine Law case, to file for up to $1.4 million in fees and expenses, an amount Mayor Maria Lowe described is a "very intimidating number."

After Hale's report, the commission agreed to explore seeking malpractice damages within the next month. Technically, the city has up to another year to file a lawsuit.

To win such a claim, the city must show, among other factors, that BMO was negligent in how it advised the commission and also must demonstrate a financial loss.

BMO's attorney, Benjamin Hill, was not allowed to speak at Tuesday's meeting, but was told he would be able to present the law firm's position at a future meeting.

When reached Wednesday, Hill strongly defended BMO and said at the time of their private meetings with the commission there were no rules in law or in attorney general opinions providing guidelines for the allowable Sunshine Law exemption for "strategy sessions" relating to litigation expenditures.

The 2nd District Court of Appeal decision now provides such guidance, but he stressed it came "after the fact" and was not available when the disputed closed commission meetings were held.

"Bryant Miller Olive is totally committed to the Sunshine Law," Hill said. "The firm has been in existence for over 45 years and has represented over 150 different municipalities in Florida. The firm exercised its best judgment for St. Pete Beach in an area of the law that is clearly and fairly debatable."

Ironically, the law firm conducted a seminar Tuesday morning for public officials on the Sunshine Law at St. Pete Beach City Hall, which Lowe attended.

The city's current city attorney, Andrew Dickman, also questioned BMO's decision to assign a young, inexperienced attorney to argue much of the appeals case, then bill the city almost $15,000 for 71 hours of pre-trial training.

"This was something that jumped out at me when studying their invoices," Dickman said. "You are a board of directors who have a fiduciary duty to look at this. You have a decision to make."

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