Tuesday evening’s meeting of the Green Mountain Water and Sanitation District included a renewed effort to bring back Counsel Timmons for two reasons.
1. Timmins missed a deadline to file a request for about $50,000 in costs.
The argument was that we should get Timmins back because Timmins would not have let that happen if she had not been terminated and she was powerless to do anything after she was terminated.
This is not true at three levels.
First. Timmins was still counsel of record on the court docket until Monday. And, apparently, she said nothing to new counsel or the board about protecting that deadline which expired at least a week before.
Second, the following quote from a national legal malpractice insurance underwriter sums up Timmins’ duty to Green Mountain:
“If the client is facing an imminent deadline that may expire before successor counsel can act, a withdrawing attorney must take reasonable steps to extend the deadline or comply with it.”
“Failure to . . . adequately protect the clients interests could give rise not only to potential liability to an abandoned client for malpractice, but also to disciplinary sanctions.”
“By taking reasonable steps to minimize the harm and keeping the termination amicable, lawyers can effectively withdraw from a difficult representation and prevent a bad situation from turning into a larger problem.”
CNA Underwriters “Attorney Withdrawal: The Ins and Outs of Getting Out”.
Third, given Timmins failure to protect this deadline during the transition, it is likely the court will allow a late request. (Timmins had also failed to meet the deadline for filing a jury demand as to the main case and it was likely the Court would have granted the motion she had filed to obtain a jury trial out of time.)
2. The second argument made to try to bring Timmins back was that there is only one chance to win the appeal.
We get to file one brief and she is the only one who can “get it right”.
This is not true for two reasons.
First, the Court of Appeaals will not just have one brief in favor of our position.
What this argument fails to understand is that we have the best brief anyone could have – the court’s thoughtful, solid and comprehensive decision.
The Court of Appeals will give deference to the district court’s findings of fact.
Additionally, the fact that one judge has already decided the issues in our favor provides significant momentum in our favor.
The court’s unbiased decision in our favor carries more “weight” than the parties’ briefs ever could.
(And it is important to note that Timmins failed to take care of getting the other developers’ dismissed in her motion for summary judgment leaving it to the court to tie off the loose ends).
Second, the legal issue is very simple.
In fact, there were no “legal heroics” in making this argument.
The reverse is true.
It would have been legal malpractice NOT to make these arguments.
The TABOR argument was first made by another attorney before Timmins was retained.
The second argument (Local Government Budgeting Act) was not made in Timmins’ motion to dismiss but it was made in the motion for summary judgment after Gessler was retained.
In sum, Timmins breached her duties to her client, compromised the board’s defense of the litigation and actively worked with the recall group to undermine the board at every meeting.
She had to go.
The board now has excellent general counsel and litigation counsel who will work for them instead of against them.
It is time to move on.
John Henderson
John, Greatly appreciate your keeping track of what’s happening at GMWSD regarding the issues surrounding Counsel Timmins and the ongoing litigation, as well as your assessment on arguments presented. I will be listening to the meeting recording to gain my own understanding of the proceedings. Thanks for your time and efforts in keeping the GMWSD residents informed.