Our solicitor represents us AND the opposing team!!!

Keith Kilgore, our Mount Gretna Borough AND Chautauqua solicitor has been representing MGB in the pursuit of a resolution that would require us to "repay" an alleged $224000 "overpayment."

The trouble is that while he is supposed to be our advocate in this issue, he also is the municipal solicitor for South Lebanon AND North Londonderry--both municipalities that are claiming to be underpaid EIT revenues and seeking Mt. Gretnans' tax dollars to "repay them."

To make matters worse, Kilgore's partner, John Enck also represents both Millcreek and Bethel as their municipal solicitor.

In a recent Boro meeting, our council president acknowledged that kilgore "represents several other municipalities in this issue." But that seemed ok to him--he never mentioned how they dealt with this dual representation or the conflicts it creates. Perhaps they took care of that in a separate meeting and Allwein simply has not availed himself of another opportunity to paternalize us...

Let me show you PA's professional code of conduct that Kilgore, and Enck, are required to follow as licensed PA attorneys:
(you can find it yourself at http://www.pacode.com/secure/data/204/chapter81/s1.7.html)*

Rule 1.7. Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Now, that rule suggests that in Para. b, there is a way to represent both an allegedly underpaid and an overpaid in this situation. But let me present to you paragraph B and draw your attention specifically to (B)(3), which basically states one lawyer can represent two clients where a conflict may exist---BUT NOT WHERE THOSE CLIENTS OPPOSE EACH OTHER in a proceeding. In other words, they can't be direct adversaries.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: [...]

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal;
and
(4) each affected client gives informed consent.

Now, doesn't this appear to present a pretty clear motivation for Kilgore to jump straight to the position "hey give these guys your money, and let's not litigate this--because then I would be representing two adversaries on the opposite sides of a claim that is in litigation."

And, even if you want to say, "well, we really aren't adversaries in a proceeding yet, so its ok for him to do this", then I encourage you to look at this rule's Note 8. This is the question that has to be answered in order for Kilgore, Enck, or any attorney to represent more than one party in this issue. And, let me remind you that adherence to professional conduct rules is NOT an OPTION nor is it an afterthought!

Note 8

(8) Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.

So here, let me say my thoughts outloud:
The only reason that we are NOT in litigation or before a tribunal on this over/under allegation is because it is in the SOLICITORS' best interests--not because it may be in our best interests. I especially think this because to get us out of this issue, it really looks relatively simple--just stop participating in the meetings. Publish a nice, concise letter to whomever is organizing these "repayment" meetings, telling them that,

"while we support the proper distribution and receipt of all tax revenues, we simply can not advise our municipal client to enter into any sort of agreement at this time. However, if more or substantial evidence supporting the allegations of your claim come into your possession, we would be pleased to consider reopening discussions." End of story. No more bills from solicitors' for attending these discussions...

Based on Kilgore's results for us in this issue, I think he has made it abundantly clear that he is materially limited in his ability to consider an appropriate course of action for us--he has laid us Mt. Gretna taxpayers out like a lamb to slaughter, not even formally questioning the veracity and sufficiency of the "overpayment" claim. There is an obvious lack of evidence here, and the only document be presented as "evidence" is a report by a firm selected, instructed, and paid by the "claimant". And, that report itself has some pretty obvious deficiencies that even a first year law student would be able to spot and use to argue for a better position for his clients.

Instead, Kilgore is preserving, without flinching, apparently, his other clients' unproven claims that they have a right to reach into our pockets for more money. How convenient for him, to not challenge the claim, to not have to absolve himself from representing any entity on this EIT issue, and to be able to keep billing all these clients for both his time spent on this EIT issue AND his regular "solicitor" hours. And he will certainly be billing us for his advocacy of our Borough!

Again, our municipal leadership has set us up to foot someone else's bill, assuming they get us into a repayment agreement or raise or taxes or tack on a special assessment through the Chautauqua.

By the way, Kilgore also serves as zone hearing board solicitor for Swatara, Union, Heidelberg, AND West Cornwall Township. Enck serves as zoning hearing board solicitor for Myerstown.
You can confirm this information at http://www.lebcounty.org/lebanon/lib/lebanon/Public_Officials_Directory_2009-REV.pdf

If you would like to find out for yourself whether his representation of both sides suffers "material limitations", you can ask for someone for an answer. You can be discreet, or a straight up P'O'd taxpayer. You can ask these guys for an answer at: http://www.padisciplinaryboard.org/forms/consumer.php

or you can ask more taxpayer rights' types of questions at
http://www.auditorgen.state.pa.us/Department/Info/Investigations/

*To see more rules of professional conduct for attorneys, check out PA Title 204, Chap 81-- a peek of which is at
http://www.pacode.com/secure/data/204/chapter81/chap81toc.html