Part II: Why are the Citizens Paying an Outside Law Firm to do the City Law Department’s Job?
GRAVITAS . . . . Fair and Brutal Opinion (Trapped by Facts)
About Contributing Journalist Scott J. Graves in his own words
Scott J. Graves, Esq., B.S. Biology, M.S. Pharmacology, J.D. Law – Father, Born-and-Bred Gardnerien-American, Gardner Native of Acadien Heritage, Gardner High School Class of 1982, Gardner Citizen-Voter, Gardner Homeowner/Taxpayer, 30-year Gardner Business Owner, 30-year Gardner Lawyer, former 16-year Gardner City Councillor, former Gardner City Council President, and former Gardner City Solicitor and Head of the City of Gardner Law Department.
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March 3, 2022
First of all, when a city employee is named in a court case as a city employee, that does not mean that he is personally involved – it’s just the opposite. That’s what the Mayor and Walsh do not understand, or won’t tell you.
The U.S. Supreme Court has made this clear. Here we will explain for you, our loyal reader and concerned Gardner Citizen. In Kentucky v. Graham, the United States Supreme Court ruled that city employees like John Flick (named as City Solicitor) are mentioned in court cases in their official capacities (as City Solicitor) as a way to make a claim against the municipal entity (the City of Gardner in this case). The Supreme Court says that it’s the municipality, not the official, who is the one who is in the case – even though the official’s name is in the case.
As the Supreme Court said, “it is not a suit against the official personally – the real party in interest is the entity” – and the “entity” is the City of Gardner in this case. Of course, Massachusetts follows the U.S. Supreme Court. See McCann v. City of Lawrence, for example.
No one is contesting this. It is not debatable.
So, no one knows what the Mayor and Councillor Walsh are talking about when they say Flick (and Kolodny) are “conflicted.”
Conflicted how? Conflicted why?
Believe me, we have asked. No one will tell us. They just ignore us.
There was an information leak which tells us a lot about why no one will offer us answers. The Mayor of Gardner, Michael Nicholson, leaked out an attorney-client email which concerned one of our requests for information about this mysterious “conflict.” In that leaked email, the high-priced outside law firm that you, the Citizens, are paying a fortune to represent Flick & Kolodny said that it is “none of the City Councillor’s business” what the “conflict” is.
Now, remember, this high-priced outside law firm wouldn’t have a job here in Gardner unless this mysterious “conflict” actually exists. How convenient to say “it’s none of your business” why there is a “conflict.” The conflict exists because it just does. How convenient. Shut up, and pay.
Meanwhile, Flick & Kolodny, in the fetal position wetting their bunk beds, just keep cashing their $125,000 per year (plus benefits) paychecks from you, the Gardner Taxpayers.
So, let’s see if we can do a Frank Columbo and figure out some clues about what your Ruling Class might be talking about when they yell: “conflict!”
A lawyer is not “conflicted” unless the Rules of Professional Conduct say so.
The Rules of Professional Conduct regulate the conduct of attorneys. So, if this mysterious “conflict” exists, it is in the Rules.
So, let’s take their one excuse. Again, their one excuse is that Flick and Kolodny are “conflicted” because Flick’s name was mentioned in Graves’ Public Records Law case in Superior Court.
Let’s take that one excuse and go through all of Rules to try and find the Rule they are relying upon. This will be fun – better than wetting our beds, for sure.
Rules 1.1 through and including Rule 1.6 do not apply, they have nothing to do with the Mayor’s excuse.
Rule 1.7 – This Rule 1.7 prohibits Flick from representing his client, which is the City of Gardner, if doing so will be “directly adverse to another client.” First of all, again, their only excuse for this “conflict” is that Flick’s name was mentioned in the court case. So, Rule 1.7 doesn’t apply. Second, Flick as City Solicitor only has one client in this case – the City of Gardner. So, “another client” as stated in Rule 1.7, doesn’t apply at all. There is no other client for Flick. Flick’s not trying to protect another client, and Flick’s not trying to protect himself – because he has nothing personally or individually to do with this case. So, no problem here.
Rules 1.8 – 1.10 don’t apply – for the same reason as just given. The Mayor’s excuse doesn’t have anything to do with these Rules.
Rule 1.11 doesn’t apply because it has to do with former city lawyers, and private clients – these have nothing to do with the Mayor’s excuse.
Rules 1.12 through 1.18 – not applicable to the Mayor’s excuse.
Rules 2.1 through 2.4 – not applicable to the Mayor’s excuse.
Rules 3.1 through 3.9 – not applicable to the Mayor’s excuse. But, we’ll look closer at Rule 3.7 anyway, for grins and giggles. Rule 3.7 prohibits a lawyer from being a witness at the trial of the case. Even if the Mayor was using that Rule as his excuse, which he isn’t, there can be no witnesses and no trial in this case. It’s not that type of case. This Rule simply doesn’t apply to the Mayor’s excuse.
Rules 4.1 through 4.4 – not applicable to the Mayor’s excuse.
Rules 5.1 through 5.7 – not applicable to the Mayor’s excuse.
Rules 6.1 through 6.5 – not applicable to the Mayor’s excuse.
Rules 7.1 through 7.5 – not applicable to the Mayor’s excuse.
Rules 8.1 through 8.5 – not applicable to the Mayor’s excuse.
That’s all the Rules. None of them apply to this situation given the Mayor’s one excuse for the existence of this mysterious “conflict.”
Since we are Columbo, let’s keep looking for clues for this mysterious and secret “conflict.”
Take the State Conflict of Interest Law, M.G.L. c. 268A.
The only sections that could possibly apply in our situation are sections 17, 19, 20 and 23.
Section 17 doesn’t apply because Flick only has one client – The City of Gardner. He’s not trying to protect some other client. So, no problem here.
Section 19 doesn’t apply because Flick, if he was doing his job, would be representing the City of Gardner in this case, and that’s his job – so no problem with Section 19.
Section 20 doesn’t apply because there is no side contract with financial benefits – it would just be Flick doing his job as City Solicitor. No problem there.
Section 23 doesn’t apply because Flick would not be getting any special favors, or using his office for his own private benefit, or trying to help a crony or partisan playmate – Flick would just be doing his job of representing the Citizens of Gardner in a simple legal case. No problem under Section 23.
So, there is no conflict in this case, at all.
We’ll just sum up by saying what your Ruling Class won’t say.
An attorney can quit on his client whenever he wants to.
It’s the lawyer’s prerogative to quit on a client. That’s what Flick & Kolodny have done in this case. Of course, the Mayor and James Walsh and the Automatic 6 won’t come out and say this. That wouldn’t look very good for their fellow Ruling Class compatriots – Flick & Kolodny.
So, we’ll say it for them. Flick & Kolodny simply quit on the Gardner Taxpayers and Citizens. The Mayor and the Automatic 6 City Councillors are good with that.
Are you good with that, Citizens?
This doesn’t happen in real life. It doesn’t happen in our lives. The lives of the common Citizen are hard – and getting paid huge sums of money for quitting doesn’t just fall on our laps like that.
In the real world, when you quit your job, you don’t get paid. You’re a quitter, or you go get another job. You don’t sit around suckling the Public Teet when you quit on the Sacred Cow.
When an attorney quits in the real world, the client just gets another lawyer – and pays the new lawyer the money that the quitter would have got. No harm, no foul. Everyone can be replaced, no loss to the client – he pays one lawyer, not two.
But, in this present case, you, the Gardner Citizens, still have to pay the quitters. That’s because Flick & Kolodny keep cashing their automatic $125,000 City paychecks – even though they quit on you.
But, it’s worse than that. Not only do you still have to pay the quitters, you also have to dish out big bucks to Flick & Kolodny’s replacement outside lawyers, too.
In real life, this does not happen.
But Flick does this over and over again. This is not an isolated act.
If Flick & Kolodny want to get on their high moral horse, and quit this case because of the absolutely unspeakable and horrendous outrage of Flick’s name being mentioned in the court case that he caused, then they should go ahead and get the hell out of here.
They can just pack up and leave. They can be replaced, quickly, and quite easily – and for much less money. Much, much less money.
Do you think that John Flick and Ethan Kolodny are the only lawyers in Massachusetts who can pull off the incredible legal feat of being City Solicitor and Assistant City Solicitor? Do you think the City of Gardner would dry up and die without them?
It’s time for them to go. It’s been too long – and this is just proof positive of what kind of nonsense we are getting for $125,000 per year, plus benefits. This happens time and time again. We have the receipts, if you want to see them all. Just request said receipts from your city’s accounting dept.
But, we all know they won’t leave. They can’t.
So, they should pay. They can ride their moral high horse – but they should pay their high-priced replacements out their own $125,000 City paychecks.
Instead of nonchalantly cashing their paychecks each and every single week on the backs of the Gardner Citizens, they should put their money where their high morals are – if they can reach around that far.
Either that, or just do their jobs. Is that too much to ask? Gravitas guesses it is.
Mike Nicholson Mayor of Gardner, MA
Elizabeth Kazinskas, City Council President, Gardner MA
John Flick, of Flick Law Group, P.C. (and Gardner City Solicitor)
Ethan Kolodny, of Flick Law Group, P.C. (and Assistant City Solicitor)
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