III GreenbergTraurig

John Alan Doran

Tel 602.445.8507
Fax 602.445.8688
DoranJ@gtlaw.com

March 21,2011

SENT VIA E-MAIL and FAX

and HAND DELIVERY on

March 22, 2011

Maricopa County
Maricopa County Board of Supervisors ALBANY

AMSTERDAM
c/o Fran McCarroll
ATLANTA
Maricopa County Clerk of the Board
AUSTIN
301 West Jefferson Street
BOSTON
10th Floor CHICAGO
Phoenix, AZ 85003 DALLAS
602-506-6402 DELAWARE

DENVER

RE: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Claims Against FORT LAUDERDALE

Maricopa County HOUSTON

LAS VEGAS

LONDON'

Ladies and Gentlemen: LOS ANGELES

MIAMI

As you know, this Firm represents Ogletree, Deakins, Nash, Smoak & Stewart, P.C. MILAN"

("Ogletree") with respect to certain claims it possesses against Maricopa County. Please NEW JERSEY
YORK
consider this letter as Ogletree's Notice of Claim against the County pursuant to A.R.S. NEW

Section 12-83 1. 01. ORANGE COUNTY ORLANDO

PALM BEACH COUNTY

For purposes of clarification, and to make Ogletree's position clear from the PHILADELPHIA
inception, Ogletree maintains that its claims against the County and its various agents PHOENIX
exceeds $10,000,000. That being said, Ogletree is loath to burden the County taxpayers with ROME"
yet another massive obligation brought about by the wrong-headed acts of the County's SACRAMENTO

officials and agents. Thus, while it is truly unfortunate, and even downright despicable that SAN FRANCISCO

certain County officials and agents have repeatedly defamed Ogletree and its attorneys SHANGHAI

without the slightest basis in fact, and while the County's refusal to pay Ogletree's unpaid SILICON VALLEY

invoices is completely baseless, Ogletree would still be willing to resolve its disputes with TALLAHASSEE

the County simply by the County agreeing to pay Ogletree its overdue invoices and TAMPA

TOKYO"
reimbursing Ogletree for its own attorneys' fees incurred to date in this dispute, as well as a
TYSONS CORNER

WASHINGTON. D.C

WHITE PLAINS
PHX 329,775,069
ZURICH"
GREENBERG TRAURIG, LLP .. ATIORNEYS AT LAW" WWW.GTLAW.COM
2375 East Camelback Road .. Suite 700 .. Phoenix, AZ 85016 .. Tel 602.445,8000 .. Fax 602.445.8100 "':I:STP...ATEGiC ALLIANCE
Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011
Page 2

public media retraction and apology to Ogletree, stating clearly that the false accusations
levelled against Ogletree and its lawyers lacked any factual basis and that Ogletree
represented its County clients ethically, effectively, lawfully, and zealously. Ogletree and its
lawyers do not want the County taxpayers to suffer because of the poor decisions of their
certain County officials and agents but should this matter not resolve itself on these terms,
Ogletree and its attorneys will have no choice but to seek the full benefit and protection of
the laws of the State of Arizona, including recovering on their multi-million dollar claims.

EXPLANATION OF CLAIMS

The County, through certain officials and agents, has repeatedly, and baselessly
defamed Ogletree and its Phoenix attorneys. The County also has refused to pay Ogletree for
past due invoices in the amount of $1,143,550.63. Because the County owes these past due
attorneys' fees pursuant to contract, the County further owes Ogletree an additional
$59,257.70 in attorneys' fees and costs incurred to date (an amount that increases as this
dispute continues).l

Since September 21, 2010, certain County officials and agents have embarked on a
baseless campaign to smear the reputation of one of the nation's largest, and most respected
labor and employment law firms, Ogletree, Deakins, Nash, Smoak & Stewart. This campaign
includes deliberate misstatements and half-truths to the media as well as intentionally leaked
misstatements to the media impugning the integrity and business practices of Ogletree and its
Phoenix Attorneys. The misstatements and press leaks are all provably false.

Of course, had the County properly authorized its County Attorney, Bill

Montgomery, and its Deputy County Attorney, Doug Irish, to resolve the issues between
Ogletree and the County, the issues would have been resolved long ago without any
urinecessary expenditure of outside counsel fees by the County taxpayers. Instead, certain
County officials and agents engaged in repeated, shockingly defamatory conduct and
statements in efforts to discredit Ogletree and its attorneys, and then proceeded to abuse the
legal process by, inter alia" filing a lawsuit against Ogletree to resolve an issue Ogletree
previously agreed to resolve through mediation, and then expending extraordinary attorney
time and resultant fees at taxpayer expense to file an unnecessary and premature Motion for
Summary Judgment in that matter (before even any answer was filed). The taxpayers
continue to pay exorbitantly for the this decision to bypass the rational, practical, and
unemotional office ofthe County Attorney.

The defamatory conduct at issue attempts to call into question the integrity of
Ogletree and its Phoenix attorneys at every conceivable leveL. However, after more thanfive

Note that both the unpaid invoices and the fees incurred to date are subject to interest at 10% per
annum under Arizona law.

PHX 329, 775, 069

GREENBERG TRAURIG, LLP .. ATIORNEYS AT LAW II WWWGTLAWCOM

Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011

Page 3

months of Ogletree's unrelenting demands for any proof that supports the alleged misconduct
by Ogletree, the County has failed to produce even a scintilla of evidence.

The County's current position, as espoused by County officials and agents, also seeks
to place Ogletree in a precarious ethical quandary: certain County officials and agents
repeatedly have requested that Ogletree produce all invoices it already provided to the
County during the course of Ogletree's representation to County agencies and officials. Of
course, the County is already in possession of each and every detailed invoice issued by
Ogletree, because Ogletree sent those detailed invoices to the County agencies for which
Ogletree provided legal services long ago? To the extent that certain County officials and
agents cannot obtain copies of these detailed invoices from the other County agencies, it
likely is because Ogletree represented these County agencies while those County agencies
were in direct conflict with the Board of Supervisors (the very reason that the County
appointed Ogletree to serve as conflicts counsel). As a result, Ogletree is on notice that its
former clients (the County agencies) may have the deliberate calculation not to disclose
Ogletree's detailed invoices containing attorney-client privileged material to the Board of
Supervisors. Accordingly, the oft-repeated demand that Ogletree provide the County with
these detailed invoices could well require Ogletree to violate long-standing ethical rules (i.e.
require Ogletree to disclose to the Board of Supervisors the former clients' confidences in
matters in which the Board of Supervisors were or still are adverse parties).

In fact, Ogletree has advised the County from the beginning that it would turn over all

such invoices, as soon as the County provided Ogletree with informed, written consents from
each of the particular County agencies and individuals to whom Ogletree provided legal
services. However, to date, the County has provided only one legally cognizable written
informed consent, and that was only for the County Attorney's Office itself. (Ogletree
promptly provided such invoices as requested in that written, informed consent.) The Board
has now had almost six months to provide the written, informed consents that would allow
Ogletree to provide copies of its invoices to the County. Instead, the County has falsely
asserted that Ogletree is obstructing a County audit of Ogletree's invoices, when, instead, it
is the County that has repeatedly failed to take the ethically mandatory step of providing
written, informed consents from Ogletree's former clients to Ogletree, and thereby permitting
production of Ogletree's invoices to the Board.3

2
Because Ogletree has already presented all of the invoices to its former clients within the County and
each invoice was in fact approved, and because the County's own policy specifically and unequivocally requires
each such agency within the County to review and approve only such invoices that meet all of the requirements
of the County's Procurement Code, all of Ogletree's invoices have already been completely vetted by the
County, and the defamatory demands for an audit of those invoices is nothing more than a baseless attack on
Ogletree's integrity.
3 It should be noted that, alternatively, Ogletree has sought permission to speak to each of its former

clients to obtain the written consent itself. However, the County's attorneys repeatedly have indicated that they

PHX 329,775,069

GREENBERG TRAURIG, LLP .. ATIORNEYS AT LAW.. WWWGTLAWCOM

Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011

Page 4

In addition, the Board and its agents falsely have accused Ogletree of "attacking"
current County Attorney, Bill Montgomery. This is completely false. To the contrary, as
stated above, Ogletree firmly believes that, had the County acted in the best interests of the
County and the County taxpayers, it would have allowed County Attorney Montgomery and
Deputy County Attorney Irish to do exactly what State law empowers them to do-resolve
these issues effectively, and without excessive expense to the County taxpayers, and without
an urinecessary, brutal, and baseless attack on Ogletree and its attorneys.

The County may later argue that the false information disseminated by the County's
officials and agents against Ogletree is not malicious or a political payback for representing
County agencies and officials adverse to the County, but rather a negotiating tactic to avoid
paying over $1,000,000 in unpaid Ogletree invoices. But the County cannot lawfully accept
Ogletree's legal services without paying for them under State law, so the County has no
excuse for further delaying payment of its past-due invoices from Ogletree. Indeed, nothing
in the County's own Procurement Code allows the County to refuse to pay invoices as they
come due in an attempt to extort billing concessions. Moreover, Ogletree will not permit its
reputation to be damaged and walk away from fees that it properly earned by providing,
excellent and effective legal services to its former clients.

Indeed, Ogletree has been forced to expend substantial attorneys' fees in its pursuit of
payment from the County. Because Ogletree's claims for payment of invoices arise out of
Ogletree's legal services contract with the County, Ogletree is entitled to recover, pursuant to
A.R.S. Section 12-341.01, its attorneys' fees expended in pursuing payment of
its invoices.

THE COUNTY IS LIABLE TO OGLETREE AND ITS PHOENIX LAWYERS FOR

REPEATED ACTS OF DEFAMATION, LIBEL, AND SLANDER.

On September 21, 2010, the County, through the County Manager, David Smith,
issued a letter to the Managing Shareholder of the Ogletree firm nationally.4 In that letter,
Mr. Smith leveled no less than seven separate criticisms of Ogletree's legal representation on
behalf of the County's agencies and individuals.5 Literally every single criticism made by the

essentially represent each of these County agencies in this matter, suggesting Ogletree would be violating
Ethical Rule 4.2 by contacting its former clients. The Board's refusal to permit Ogletree to speak with its
former clients results in yet another Catch-22: Ogletree is not permitted to speak with its former clients to
ascertain whether it is the former clients (as opposed to the Board) who actually seek to have these invoices
disclosed, yet it is expected to rely on the representations of a party that was adverse to the former clients in the
very matters in which Ogletree represented its former clients.
4 The County is already in possession of the letter. Ogletree has no intention of republishing its
outrageous and defamatory contents herein. It is incorporated by reference herein.
5 Smith's letter purported to terminate Ogletree's County legal services contract, much as the County

has repeatedly terminated the County's outside legal firms with impunity. The pattern of terminations itself
bespeaks a witch-hunt of epic proportions, one that is sure to dramatically affect the willingness of qualified

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Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011
Page 5

County Manager was and is false.6 Each and every single false criticism made by the County
Manager defamed and libeled the Phoenix Ogletree office, and the small group of individuals
that comprise the Ogletree Phoenix office, to Ogletree's Managing Shareholder, and to the
Ogletree firm as a whole. The defamation and libel of these individuals and the Phoenix
Ogletree office constitutes group defamation. The defamation and libel of the group and the
group members to Ogletree constitutes internal corporate defamation and libel per se, which
is actionable under Arizona law. Each of the fourteen Phoenix Ogletree attorneys is entitled
to an individual award of damages. The Phoenix Ogletree office itself is also entitled to an

award of damages.

This is not the end, however. Certain County officials and agents deliberately leaked
the September 21, 2010 letter to the media, most notably to its attorney's personal media
contact. In addition, the County Manager subsequently republished the defamation by stating
publicly that he stood by each and every false allegation contained in the September 21, 2010
letter to Ogletree's Managing Shareholder. The press leak, and the ensuing republication of
the defamation and libel by the County Manager, amount to defamation and libel of the
Ogletree firm as a whole, as well as additional defamation and libel of the Phoenix Ogletree
office and its attorneys individually. The Phoenix Ogletree attorneys are each entitled to
additional damages for this republication. The Phoenix Ogletree office is also entitled to a
damages from the republication. The Ogletree firm as a whole is separately entitled to its
own damages award.

Damages in such instances of defamation and libel are presumed under Arizona law.
The total amount sought for the press leak and the republication by the County Manager is
$5,000,000. This amount is calculated based on what a reasonable jury would award in these
extraordinary circumstances, particularly given the dearth of even a shred of evidence
supporting the County Manager's letter when it was written. We reiterate that it is not
Ogletree's wish to punish the County taxpayers for the misconduct of certain County
officials and agents, and Ogletree would gladly resolve this dispute by waiving its
defamation and related claims in exchange for payment in full of its invoices, payment of its
attorneys' fees to date, and a public apology and official retraction from the County.

THE COUNTY IS LIABLE TO OGLETREE IN THE AMOUNT OF $5,000,000 FOR

REPEATED VIOLATIONS OF THE CONSTITUTIONAL RIGHTS OF OGLETREE
AND ITS PHOENIX LAWYERS.

outside law firms to provide services to the County for many, many years to come. Oddly enough, no sooner
did Smith terminate Ogletree's contract than the County rushed to offer Ogletree new contracts, and urged
Ogletree to continue providing legal services on matters on which Ogletree was supposedly terminated.
6 Ogletree thoroughly debunked each of these false accusations during its Procurement Code ADR

filings, which are attached hereto as Exhibits 1-3. However, the ADR process lacked the slightest semblance of
due process, and Ogletree has every reason to believe that certain County officials and agents were directly and
inappropriately interfering with that process in violation of Ogletree's due process rights.

PHX 329,775,069

GREENBERG TRAURIG, LLP .. ATIORNEYS AT LAW" WWWGTLAWCOM

Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011
Page 6

The information provided above puts the County on notice that Ogletree possesses a
plethora of statutory and constitutional claims against the County. Ogletree, the Phoenix
Ogletree office and its individual attorneys are entitled to recover damages under 42. U.S.C.
Section 1983 for any number of wrongs. As the facts above explain, these claims include
denial of due process of law and denial of liberty interests as a result of the defamatory and
libelous conduct described above. The County's conduct also amounts to theft by extortion or
attempted theft by extortion. We value these claims collectively at $5,000,000, or what a
reasonable jury would award under these extraordinary circumstances. Once again, however,
we reiterate that it is not Ogletree's wish to punish the County taxpayers for the misconduct
of certain County officials and agents, and Ogletree would gladly resolve this dispute by
waiving its defamation and related claims in exchange for payment in full of its invoices,
payment of its attorneys' fees to date, and a public apology and official retraction from the
County.

THE COUNTY IS LIABLE TO OGLETREE AND ITS PHOENIX LAWYERS FOR

UNPAID INVOICES IN THE AMOUNT OF $1,143,550.63.

In an effort to avoid litigation and to avoid further waste of taxpayer dollars, Ogletree
has pursued its claim for unpaid invoices through the County's Procurement ADR process,
even though that process deprived Ogletree of the most basic due process protections.
Through that process, Ogletree has set forth in great detail its entitlement to fees and costs
amounting to $1,143,550.63. Again, we incorporate by reference herein Ogletree's filings
with the Procurement Officer, each of which demonstrates beyond any reasonable dispute
that Ogletree is entitled to payment of its invoices.

As a separate claim, Ogletree is entitled to recover on its invoices regardless of

whatever pedantic, picayune technicalities the County might cobble together to avoid its
payment obligations. Because Ogletree provided appropriate, indeed exceptional
representation to the County agencies and individuals it represented, it is entitled to recover
its fees under the doctrines of quantum meruit, unjust enrichment, and estoppel.

THE COUNTY IS LIABLE TO OGLETREE FOR OGLETREE'S ATTORNEYS'

FEES INCURRED TO DATE AND INCURRED IN THE FUTURE AS A RESULT OF
THIS DISPUTE.

Ogletree's dispute with respect to its unpaid invoices plainly arises out of its legal
services contracts with the County. Under Arizona law, Ogletree is entitled to recover its
attorneys' fees and costs incurred in pursuit of its invoices. Currently, that amount is roughly
$59,257,70, but will increase substantially should this dispute continue.

PHX 329, 775,069

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Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011

Page 7

ENTITIES AND INDIVIDUALS LIABLE.

While the County is obviously on notice of these claims, Ogletree nevertheless

understands it is appropriate to identify County officers and agents, who Ogletree shall hold
individually liable for their misconduct. These entities, officials, and agents include:

Maricopa County

Maricopa County Board of Supervisors

Supervisor Mary Rose Wilcox individually and as a member of

the B.O.S.

Supervisor Don Stapely individually and as a member of the B.O.S.

Supervisor Fulton Brock individually and as a member of the B.O.S.

Supervisor Andy Kunasek individually and as a member ofthe B.O.S.

Supervisor Max Wilson individually and as a member of

the B.O.S.

Maricopa County Deputy Attorney Wade Swanson individually and as a member of

the
County Attorney's Office

The Cavanagh Law Firm

Julie Pace individually and as a member of The Cavanagh Law Firm

David Selden individually and as a member of The Cavanagh Law Firm

Maricopa County Manager David Smith individually and as County Manager

Maricopa County Spokesperson Cari Gerchik individually and as County Spokesperson

CONCLUSION

Ogletree reiterates its fervent desire not to punish the County taxpayers for the sins of
some County officials and agents. It is for that reason, alone, that Ogletree would still

resolve its disputes with the County for full payment of its invoices and attorneys' fees it has
incurred, plus a public media apology from the County and a formal retraction of the
countless defamatory, and provably false statements certain County officials and agents have
uttered with respect to Ogletree and its attorneys. If, however, the Board of Supervisors

PHX 329, 775,069

GREENBERG TRAURIG, LLP .. ATIORNEYS AT LAW II WWWGTLAWCOM

Maricopa County
Maricopa County Board of Supervisors
c/o Fran McCarroll

March 21,2011
Page 8

remains committed to its strategy of defamation and misstatements to the public and the
media, then Ogletree shall be left with no choice but to vindicate all of its interests through
legal process. The County Board of Supervisors' agents repeatedly have defamed Ogletree,
its Phoenix office, and the lawyers in that office. The County also has refused to pay
attorneys fees it contractually owes to Ogletree in the amount of $1,143,550.63, which has
resulted in attorneys' fees in the amount of $59,257.70, both of
which amounts are subject to
statutory interest. Accordingly, Ogletree's claim against the County to date is $11,202,807.

Very truly yours,

GREENBERG TRAURIG

JAD/lh
cc: Julie Pace
Enclosures

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