Paul Egan

Detroit Free Press

LANSING — Bills for an outside legal firm to represent Gov. Rick Snyder in civil lawsuits related to the Flint drinking water crisis are costing taxpayers close to $6,500 a day, and Snyder spent almost the entire $400,000 allocated for the legal contract in February and March alone, records show.

Barris, Sott, Denn & Driker of Detroit, hired to represent Snyder in connection with a raft of Flint civil lawsuits in which he is named as a defendant, billed the state $343,702 between Feb. 8, when the firm started work, and March 31, according to records obtained by the Free Press under Michigan’s Freedom of Information Act.

The State Administrative Board was told March 8 the contract, which provides for legal fees as high as $540 per hour for attorney Eugene Driker, was capped at $400,000. If the rate of billing from February and March continued into April, the cap for the contract would have been exceeded by April 11. That means Snyder's total outside legal fees charged to the state will almost certainly exceed the $1.2-million figure quoted in March. The cost of criminal defense representation for Snyder, which is covered under a separate contract with Warner, Norcross & Judd, is capped at $800,000.

"The billing in February and March was from a high volume of work due to the number of documents that needed to be produced to meet litigation demands," Snyder spokeswoman Anna Heaton said Tuesday. "Those demands continue, though at a lower volume, so the governor’s office is still working with the firm to figure out how much the total contract will cost."

The fees are controversial, with critics saying Snyder should use only state attorneys from the Attorney General's Office or pay the outside firms using a legal defense fund, campaign funds or other non-taxpayer funds. Snyder says the legal fees arise directly from his official actions as governor and it is appropriate to charge them to the state.

The governor's office is not subject to Michigan's FOIA law, though pending legislation would change that. The Free Press obtained the billing records from the Department of Technology, Management and Budget, which submitted the contracts to the State Administrative Board, a body with responsibilities for approving certain state contracts.

The Free Press sent DTMB a FOIA request on April 26 for invoices and payment records for both the Barris, Sott, Denn & Driker contract and the Warner, Norcross contract.

The DTMB's response to the Free Press included only records related to the Barris, Sott, Denn & Driker contract. It wasn't clear from the response whether DTMB possessed no billing records related to the Warner, Norcross contract, or whether DTMB deemed those records to be subject to attorney-client privilege, in their entirety. DTMB FOIA Coordinator Gary Buckberry did not respond to an e-mail seeking clarification.

Heaton said "the invoices from Warner Norcross are still under review."

Though Driker commands the highest hourly rate under the civil law contract, he didn't bill for the highest amounts in February and March, because other attorneys with the firm billed more hours than he did.

The highest billings were from attorney Todd Mendel, who bills at $400 per hour and billed for $37,320 in February and $51,520 in March, records show.

The legal fees paid to Barris, Sott, Denn & Driker do not include the cost of legal representation the Attorney General’s Office is providing Snyder in the civil lawsuits.

Although taxpayers are footing the bill for Snyder's legal representation, the state is giving almost no hint of what they are getting for their money.

The 25 pages of billing records released under FOIA by the DTMB on May 17 contained redactions that blacked out, in their entirety, all descriptions of the work Snyder was billed for.

Buckberry cited "information ... subject to attorney-client privilege" as the reason for the redactions.

Michigan FOIA allows, but does not require, the redaction of information that is subject to attorney-client privilege. Other government agencies subject to Michigan FOIA have released legal invoices in the past without redacting all descriptions of the legal work performed.

Last month, the City of Flint released under FOIA legal bills submitted to the city in connection with the drinking water crisis on behalf of former Flint emergency manager Darnell Earley. Those invoices contained no redactions of the description of legal services performed.

Many of the descriptions of legal services performed by Reed Smith, the Washington, D.C., law firm representing Earley, were innocuous. They included descriptions such as "preparation for congressional hearing," and "processed and loaded electronic data for efficient case team review into a database format."

Heaton said the work descriptions fall under attorney-client privilege, and "while the governor has voluntarily opened up his e-mails — both state and personal — attorney-client privilege is not something he is going to waive," in connection with the Flint crisis, she said. "I can’t speak for how the lawyers of other entities define attorney-client privilege."

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.