DeKalb County Superior Court Judge Clarence Seeliger denied a motion made by attorneys for construction firm Heery/Mitchell to disqualify DeKalb County School System’s (DCSS) legal counsel, King and Spalding, on Oct. 12.
“I believe that it is necessary for King and Spalding to continue because the cost of replacing them would be prohibitive,” Seeliger said.
Heery/Mitchell Attorney Mark Grantham argued that King and Spalding (K&S) has a direct interest in the outcome of the case due to what Grantham described as an unusual contingency fee.
The construction firm managed the school system’s SPLOST account from 2002-06. In 2006 the school system terminated the company citing overbilling and questionable work. Heery then sued the DeKalb County School System for $400,000 it said the system still owed them. The school system then countersued for $100 million, alleging fraud and claiming that the company mismanaged projects.
A spokesperson for Heery denies the claims and contends that the real reason the company was fired was because then Chief Operations Officer Pat Pope wanted to award the contracts to people she had connections with.
To date, the school system has spent close to $18.7 million in its lawsuit against Heery/Mitchell, with an additional $19 million accrued in unpaid legal fees.
“The contract of representation is unconscionable in that it provides the lawyers with the right to an excessive fee well above 50 percent depending on certain scenarios,” Grantham said.
Seeliger agreed with Heery attorneys that the contract seemed unfair and said, “It’s not a fair contract, but they negotiated it.” Lawyers for the construction firm also claimed K&S had prior knowledge of a pending criminal case involving former Superintendent Crawford Lewis and Pope, which would impact the civil case.
Grantham argued that because K&S attorneys had prior knowledge, they were witnesses in both the criminal and civil trial and their role of advocate as well as witness would violate the Georgia Rules of Professional Conduct.
School Board Chairman Tom Bowen said he was relieved the school system didn’t have to start over and find new lawyers but that he had a new respect for the complexity of the case.
“I think that there were, and are, legitimate reasons for us to have brought this case but I don’t think that anybody on either side thought that it would reach this many years,” Bowen said.
Seeliger said mediation was an option but both parties had to show interest in coming to an agreement. The judge has ordered mediation before but no agreement was reached. Seeliger said this was a case that “would most likely have to go to trial.”
Heery attorneys also claimed that during a six-month discovery period, K&S lawyers and school system officials made repeated efforts to avoid disclosing documents directly related to the civil case, as well as information regarding the pending criminal trials of Pope and Lewis.
“The issues involving discovery, I also agree with. There has been a lot of stonewalling in this case,” Seeliger said.
David Rubinger, a spokesman for Heery International, said that “the judge made his feelings known today and besides that we have no other comment.”