Monday, October 24, 2011

Front Royal Town Council Speech 10-24-2011

Friends,
Below is the speech I gave to the Front Royal Town Council tonight. Please feel free to forward this message to your friends. Elimination of the Good Old Boy monopoly is slow to come, but it is coming.
Best regards,
Bill
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Mr. Mayor, Councilmen, good evening.

A letter to you dated 3 October from Doug Napier claimed my email letter to you contained factual errors. Mr. Napier did not identify any factual errors, not one, and specifically did not address my allegations concerning his employment agreement violations and his conflicts of interests.

I allege Mr. Napier is inextricably intertwined with the real estate development operations of former County Supervisor Ron Llewellyn.

I allege County Attorney Napier, on as many as 374 occasions, violated the Virginia Rules of Professional Conduct concerning conflict of interest.

I allege County Attorney Napier, on as many as 374 occasions, violated his county employment agreement prohibiting practice of law with employers other than Warren County.

I allege the reason for County Attorney Napier's resignation is inseparable from the nearly simultaneous resignation of a female county staff member.

On the 20th of May, 2003, County Attorney Napier was appointed, notarized, and empowered as Special Power of Attorney, authorized to handle all aspects of negotiating the interests of former County Supervisor Ron Llewellyn's purchase of Swan Farm, a key property in the creation of the Leach Run Parkway right-of-way. Ron Llewellyn and his wife authorized County Attorney Napier to serve as "[...] our true and lawful attorney-in-fact (hereinafter referred to as "my attorney"), who is hereby authorized for use and in our names individually and for and on behalf of Swan Farm [...]". The document continues with a long list of Napier's duties when acting on behalf of Ron Llewellyn who, nominated by Councilman Holloway, now sits on the EDA Board of Directors. (I have provided each Council Member a copy of this Special Power of Attorney.)

In his letter, Mr. Napier implies all of his private practice legal services were limited to 'pro bono' services to a deserving cause, Habitat for Humanity. Regarding Swan Farm, did Mr. Napier perform these myriad legal services for Mr. Llewellyn for no fees as his October letter suggests? Perhaps Mr. Napier's Federal and State income tax returns will provide the answer?

Let us examine another example of Mr. Napier's lucrative real estate private practice.

In May of 2006, Janie Johnson wrote her Last Will and Testament, witnessed by Kimberly Athey, law partner with Pond, Athey, Athey, and Pond. In the will, Mr. Napier was named as a 10% beneficiary of the Johnson estate at 18 Charles Street. Mr. Napier was also named as Executor.

It is unclear if Mr. Napier is related to Janie Johnson, who died in February, 2008. Mr. Napier collected $10,000 from the sale of 18 Charles Street, plus, as Executor, he paid himself legal fees and expenses of $15,276.85, including an $8,800 repayment to himself for paying the funeral bill. The Commissioner of Accounts audit forced Mr. Napier to return this $8,800 to the estate because, as it turns out, apparently, someone other than Mr. Napier actually paid for the funeral.

Mr. Napier was full-time County Attorney for a period of 8 years and 1 month. Representing as many as 374 private practice clients means, on average, once a week, every week, for 8 years, Mr. Napier was privately employed to practice law. The fees Mr. Napier collected for these services remain largely unknown.

Perhaps the Internal Revenue Service and the Virginia Bar Association will now become interested in Mr. Napier's situation?

I suggest the Town Council delay installing Mr. Napier as Town Attorney until these allegations are resolved.

Thank you.

Tuesday, October 11, 2011

Speech to Front Royal Town Council -10/11/2011

Friends,
Tonight I spoke to the Front Royal Town Council concerning conflict of interest. Please feel free to forward this email to your contacts. These are my remarks:


Mr. Mayor, Councilmen,
Real estate development, speculation, and exploitation is by far the largest industry in Front Royal and Warren County. Our elected leaders offer a rich vein of material to support the belief that our area is controlled by people, whether in or out of office, with an ethical blind spot. The reappearance in office of the same old leaders as well as the ever-present prominence of a single law firm, resurrects for the public the picture of back-slapping Good Old Boys in control. On the recent appointment of yet another old leader to high office, one of your colleagues was quite right to ask whether the council couldn't have found someone else, someone new.

As a member of the Virginia Bar Association and an Officer of The Court, Town Attorney nominee Douglas Napier is subject to the Virginia Rules of Professional Conduct, specifically Rule 1.10 -- the general rule of Imputed Disqualification; Rule 1.11 -- which covers Special Conflicts of Interest for Former and Current Government Officers and Employees; Rule 1.7 -- the general rule on Conflict of Interest, and Rule 1.9 -- Conflict of Interest with Former Clients. I have provided each councilman a copy of these Rules. (reproduced below following these comments)

As County Attorney, it appears that Mr. Napier violated the terms of his written employment agreement -- as indicated by courthouse records -- on as many as 64 separate occasions, that Mr. Napier intermingled his part-time private legal practice with his full-time public office position of County Attorney. Many of Mr. Napier's private clients had official business before Warren County, including the Board of Supervisors where one of his private practice clients, Supervisor Ron Llewellyn, was seated. It appears Mr. Napier did not, as required by the Rules, fully disclose and notify the affected parties of the full role he was playing. Nor, as required by the Rules, did he obtain from all concerned parties their written permission for him to become privately employed and/or continue his joint representation. Where is this record?

Moreover, with Ron Llewellyn's private lawyer, Doug Napier, as Town Attorney, Front Royal will become one side of an apparent special interests triangle.

The second side of this triangle includes 3 elements:

(1) the law firm of Pond Athey Athey & Pond, Mr. Napiers' most recent private employer which includes State Delegates Clay Athey and Todd Gilbert;
(2) Ron Llewellyn, the client himself, whose Senary/Heptad LLC interests can be dramatically affected by town and county decisions;
(3) Warren County, Mr. Napier's public office client of more than 20 years.

The third side of the triangle includes 2 elements:

(1) The Economic Development Authority which is assisting the Town in getting the right of way for Leach Run Parkway, a development of importance to Mr. Llewllyn's interests;
(2) and the Senary/Heptad client, Ron Llewellyn, again, who sits on the EDA Board of Directors.

Is it needless to point out Ron Llewellyn occupies a place on all 3 sides of this conflict of interest triangle?

With regard to the circumstances surrounding Mr. Napier's abrupt resignation in 2006 as Warren County Attorney; if those circumstances were sufficient to motivate demands for Napier's resignation from public office, do the members of the Town Council consider these circumstances have no bearing on his employment as Town Attorney?

I submit for your consideration Mr. Napier is not the best choice to become Front Royal Town Attorney. For the sake of maintaining public confidence in a local government of sound appearance, find someone else, someone new, someone without such history and associations.

In conclusion, let me add this: by campaigning for the seat of Supervisor formerly held by Ron Llewellyn, Vice Mayor Chris Holloway now finds himself in the curious position of simultaneously advocating the interests of Warren County and Front Royal, two governments not known for their cordial acceptance of each others views. Is it fair to ask Mr. Holloway to resign from one or the other activity? When straddling the fence it's difficult to determine which side you are on.
Thank you.

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Source:
Conflict Of Interest - Virginia Rules of Professional Conduct
http://www.law.cornell.edu/ethics/va/code/VA_CODE.HTM

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees

(a) A lawyer who holds public office shall not:
(1) use the public position to obtain, or attempt to obtain, a special advantage in legislative matters for the lawyer or for a client under circumstances where the lawyer knows or it is obvious that such action is not in the public interest;
(2) use the public position to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client; or
(3) accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing the lawyer’s action as a public official.
(b) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the private client and the appropriate government agency consent after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter; or
(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, mediator or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
(f) As used in this Rule, the term “confidential government information” means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.

Rule 1.7 Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another existing client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Conflict Rule 1.9 of Interest: Former Client

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless both the present and former client consent after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to or gained in the course of the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client

Rule 1.10 Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.6, 1.7, 1.9, or 2.10(e).
(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1. 6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The imputed prohibition of improper transactions is governed by Rule 1.8(k).
(e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.