Opinion: FCPS Pays Millions To Law Firms With Little Oversight

Editor's note: The following post is from a community contributor and does not reflect Patch's views or news coverage.

The Auditor General who oversees Fairfax County Public Schools recently released her Legal Audit Report, which demonstrated a complete lack of oversight of how FCPS hired outside law firms. FCPS spent over $9 million on lawyers and over $6 million specifically on Hunton Andrews Kurth in just 18 months (June 2020 - December 2021). Law firm Blankenship & Keith also received just under $2 million, according to the report

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The report makes clear why FCPS's legal bills are so high - FCPS has almost no oversight or management of its outside counsel, their performance, and their bills. It appears FCPS's legal chief, John Foster, lets outside counsel rack up large bills without any question.
A review of public records shows that FCPS has paid politically connected law firm Hunton Andrews Kurth millions of dollars to unsuccessfully fight against students whose civil rights have been violated, as well as whistleblowers. Hunton Andrews Kurth is the successor of the firm that fought in favor of segregation in Brown v. Board of Education.

Some of Hunton Andrews' recent (and unsuccessful) actions on behalf of FCPS, at taxpayer expense include:

• Losing an appeal to the Supreme Court to roll back Title IX rights for survivors. Hunton’s argument, spearheaded by attorneys Sona Rewari, Elbert Lin, and Trevor Cox, was so outlandish, a federal judge, James Wynn, in his official opinion, characterized FCPS as asking the court to allow school systems “one free rape” before liability. The Supreme Court denied cert 0-9, but not after Hunton Andrews billed the taxpayers millions. FCPS was also sanctioned for not preserving documents during this case, despite the expensive Hunton Andrews retainer where the lawyers would have presumably prevented such document destruction.

• Hunton also argued that a 12-year-old rape victim allegedly gang raped at Rachel Carson Middle School didn’t have standing to sue because she filed as “Jane Doe” instead of using her real name. A unanimous federal appeals court rejected this argument, with the chief judge, in oral arguments, saying Hunton’s arguments “turned logic on its head.” Attorneys Elbert Lin, Sona Rewari, and Ryan Bates advanced this failed argument. This lawsuit claims that FCPS ignored sexual misconduct and retaliated against the survivor when she came forward, resulting in a massive 2014 settlement between FCPS and OCR.

• A review of the publicly available document in this case shows that FCPS's Hunton Lawyers Ryan Bates, Sona Rewari, and Perire Reiko Koyama tried to hold the survivor in contempt of court when she asked the court to limit the other side's access into her adult therapy records, even though her suit claims she was abused at middle school at age 12. The court appears to have rejected this argument. Later, public filings also reveal that attorney Ryan Bates called the survivor's college professor, even though the abuse occurred when she was a child, forcing the survivor to reveal her story to someone who wasn't privy to the lawsuit. As a result, Magistrate Judge William Fitzpatrick ordered substantial restrictions on FCPS' Hunton lawyers making phone calls to potential witnesses, according to documents on PACER. All of this has undoubtedly cost the taxpayers.

• In another case, Hunton lawyer Ryan Bates failed at an attempt to toss FCPS’s former auditor general’s lawsuit claiming retaliation after she was fired just days after reporting financial fraud to the school board in 2016. In his opinion, Judge Gardiner of the Fairfax Circuit Court said that Bates “misconstrued” the law, “omit[ed]” full quotes from court cases, and provided an “incorrect statement of the law.” Hunton Andrews attorney Bates seemed to have largely relied on cases that were overruled by subsequent changes to the law. For $700+ an hour, shouldn’t FCPS’s lawyers ensure that the cases they cite are correct?

• In yet another case, the same Hunton Andrews team, lead by Sona Rewari argued, yet again unsuccessfully, that disabled students illegally handcuffed and locked in rooms did not suffer a “legal injury” and could not sue the school system for damages. Judge Rossie Alston handedly rejected that argument.

• When Debra Tisler and Callie Oettinger, two moms of disabled students filed a records request into FCPS’s legal invoices, Hunton Andrews, on behalf of FCPS, sued the moms in retaliation. A Judge Richard Gardiner of the Fairfax Circuit Court dismissed the lawsuit, accusing Hunton Andrews attorney Ryan Bates of filing a lawsuit that sought a “broad restraint” on free speech and advancing “almost frivolous arguments.” The Goldwater Institute, a non-profit, represented the moms pro-bono. Bates’ actions on behalf of FCPS cost the school system over $115,000 and resulted in (another) federal investigation with the Department of Education’s office of civil rights.

In its audit, OAG noted “that the controls and processing related to managing external legal counsel were not “formally documented.” In other words, FCPS often lacked “retainers” and “engagement agreements” with outside counsel. The audit also revealed that there was no formal process on how to “assign cases to external firms” to “track legal fees” and “provide regular updates to the School Board.” The report found that in some cases there were “no parameters” about “what is allowable for a reimbursable expense” citing an example where law firms were reimbursed for out of town travel and expenses.

OAG further opined that “a prescribed process for maintaining documentation and managing external counsel legal fees was not the focus…” In other words, FCPS, presumably its general counsel, didn’t care about paying lawyers at firms like Hunton Andrews millions of dollars, asking no questions, and sticking taxpayers with enormous bills.

The Auditor General explained these problems happened because FCPS lacks “formal guidance” and “expectations” related to billing practices of “external counsel.” The report also criticized FCPS’ method for tracking legal fees, which primarily consisted of “manually entering the fees from each invoice by vendor and case to an excel spreadsheet.”

“FCPS' lack of oversight over its outside law firms like Hunton Andrews and Blakenship & Keith is deeply disturbing. These firms bill taxpayers millions of dollars to advance flawed interpretations of the law that harm the most vulnerable—disabled students, sexual abuse survivors, and whistleblowers. This scorched earth litigation deepens distrust between the public and the school board. Then, when these overpaid lawyers lose as they so often do, the taxpayers get stuck with the bill while the Hunton lawyers go back to their country clubs and McMansions. Taxpayers should demand better.” said Shatter the Silence Fairfax County Public Schools.