When Municipal Counsel Engineers Illegality and Calls It Governance

When Municipal Counsel Engineers Illegality and Calls It Governance

By Jeffrey T. Clay

Municipal attorneys are not private dealmakers. They are custodians of public power.

When lawyers representing a town draft contracts that impair statutory duties, evade transparency laws, and then defend those contracts in court, the question is not whether the lawyers zealously represented their client. The question is whether they violated the most basic obligations of municipal law practice.

That is the question squarely presented by the conduct of Donahue, Tucker & Ciandella, counsel to the Town of Newmarket.

This was not a close legal question

New Hampshire law has long been clear on several foundational points:

1. Public bodies may not contract away statutory or constitutional duties.
2. RSA chapter 91-A codifies a constitutional mandate of open government.
3. Prospective waivers of public-law rights are void as against public policy.
4. Ratification cannot cure violations of statutes enacted to protect the public.

These are not obscure doctrines. They are Municipal Law 101.

Yet Donahue, Tucker & Ciandella drafted and defended a settlement agreement that purported to do exactly what the law forbids: permanently bar a citizen from making future Right-to-Know requests to a municipality.

No competent municipal attorney could reasonably believe such a provision was lawful.

Municipal lawyers “knew or should have known” the contract was void

At the time the agreement was drafted, New Hampshire precedent already established that:

• public duties cannot be waived by contract,
• transparency statutes are not negotiable,
• and agreements violating public policy are unenforceable regardless of consent or consideration.

Municipal counsel are not novices. Donahue, Tucker & Ciandella hold themselves out as specialists in representing towns, school districts, and public bodies. With that specialization comes heightened responsibility, not plausible deniability.

If the firm knew the provision was unlawful, drafting it anyway was reckless.
If the firm did not know, that ignorance itself constitutes professional failure.

There is no third option.

The contract was designed to do what the law forbids

The settlement did not merely resolve a pending dispute. It sought to:

• silence future statutory oversight,
• single out one citizen for permanent exclusion,
• and insulate the municipality from accountability.

That is not settlement. That is structural evasion of a public-law obligation.

Municipal counsel are duty-bound to advise their clients what they cannot lawfully do, not to invent creative workarounds and hope courts will look the other way.

The defense strategy compounded the breach

The firm did not retreat from this position when challenged. Instead, it:

• defended the contract as enforceable,
• argued that public-policy limitations did not apply,
• and advanced an unprecedented theory that later litigation conduct could “ratify” violations of the Right-to-Know Law.

Ratification doctrine exists to resolve questions of authority, not to erase violations of statutes enacted to protect the public. Any municipal attorney should know this.

Advancing that argument was not zealous advocacy—it was misrepresentation of public-law doctrine.

The damage extends beyond one case

When municipal counsel normalize contracts that evade transparency laws, the harm is not limited to a single litigant. The harm is institutional:

• public officials are misled about their legal limits,
• courts are invited to excuse secrecy,
• and the public’s constitutional right to open government is diminished.

Municipal lawyers are gatekeepers. When they abdicate that role, the system fails.

This is not about tone. It is about duty.

This critique is not about rhetoric, personality, or litigation style. It is about professional responsibility.

Municipal attorneys are not free to treat public-law constraints as optional. They are not permitted to trade constitutional obligations for convenience. And they are certainly not entitled to draft contracts that they know—or should know—are void, then defend them as lawful governance.

When a firm does so, it is not merely advocating aggressively. It is engineering illegality.

Accountability matters

If firms like Donahue, Tucker & Ciandella can draft void contracts that impair statutory rights, defend them in court, and face no professional scrutiny, then transparency law becomes whatever municipal counsel say it is.

That is not the rule of law. That is rule by convenience.

Municipal attorneys owe their clients competence.
They owe the courts candor.
They owe the public fidelity to the law.

In this matter, those obligations were not met.