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Wednesday, November 14, 2007
Changing of the Guards - Part 2
"In August 2003, acting upon a request by PERS, the Attorney General granted approval for PERS to retain fiduciary and litigation counsel independent of DOJ pursuant to ORS 238.657. An answer or other first appearance to the Oregon Supreme Court and the U.S. District Court was due by August 21, 2003 in response to lawsuits relating to PERS Reform.
The request for proposal (RFP) required each firm to provide a statement of qualifications and answers to questions regarding its background and qualifications.
Using the authority granted in OAR 125-247-0295, the PERS Board received responses to the RFP from Lane, Powell, Spears, Lubersky LLP (Lane Powell); Bullivant Houser Bailey PC (Bullivant); and Orrick, Herrington & Sutcliffe LLP (Orrick).
The factors in choosing Orrick were based on the selection criteria in OAR 125-247-0295: (A) The knowledge, skills and ability of the Firm that will provide Authorized Legal Services. The Firm's ability to provide Authorized
Legal Services includes the training and expertise of the Firm attorneys, including Outside Counsel. Outside Counsel must be a member of the Oregon State Bar pursuant to ORS 180.235(2);
(B) The Firm's experience, level of expertise and suitability to perform the Authorized Legal Services; (C) Whether the Firm's available personnel possess any required licenses or certifications required to perform the legal services for the Authorized Legal Services, such as licenses to practice law in the appropriate jurisdiction, or to appear in a certain forum; (D) The Outside Counsel's availability and capability to perform the Authorized Legal Services and meet the Agency's needs; (E) The commitment the Outside Counsel and Counsel's Firm can make to the Authorized Agency to meet the Agency's needs; (F) The value of the Firm's legal services, taking into account the cost of the Firm's legal services; and (G) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome. "
So there you have the story of how Orrick came to have the contract with PERB to represent it in the ongoing litigation. I'm particularly interested in how Orrick met criteria (B) and (D) and how (F) and (G) can be reconciled with the actual costs being incurred. I still have this visceral feeling that the deck was stacked in favor of Orrick and nothing in the responses to the RFP would have changed that outcome. I don't know what leverage Orrick has over State agencies and why it has insinuated itself into almost every level of state and local government. I *know* the firm specializes in certain fiduciary instruments, such as bonds, but I still cannot find a whit of evidence that they are experts in public employee pension law. And so, for $750 an hour, PERS (and its members) are paying for a firm that specializes in bonds and high stakes litigation. Draw whatever conclusions you wish. I'm still not buying the argument that the RFP process produced a level playing field. This was a time for a changing of the guards and I suspect Orrick was right there ready and willing to jump into the fray. They acted just like Willie Sutton, the infamous bank robber, who robbed banks because that's where the money was. Orrick robs our public employee pension fund because that's where the money is in the State of Oregon. Nice work if you can get it.