Iowa State university counsel Michael Norton may have violated the law by hiring outside counsel without proper authorization, according to a legal expert.

An email on June 1, 2017, shows Norton enlisted Husch Blackwell — at which he was a partner for 12 years before starting at Iowa State as the university’s top attorney — for assistance in drafting legal motions before the executive council of Iowa gave permission.

Charges from Husch Blackwell in the Taylor Niesen v. Iowa State Et Al. case began the next day — June 2, 2017.

It is a violation of Iowa Code 13.7 to hire outside attorneys without approval of the executive council of Iowa.

According to Iowa Code 13.7, compensation is not allowed to any person for services as an attorney or counselor to an executive department of the state government without approval of the executive council of Iowa. Because Iowa State is represented by the Iowa attorney general, this law applies to Iowa State’s decision to hire special counsel for legal services.

The executive council of Iowa is composed of the governor, secretary of state, the state treasurer, state auditor and secretary of agriculture. It is responsible for approving special counsel, as well as approving certain real estate transactions and overseeing state employee insurance plans.

Iowa State and the attorney general did eventually receive approval from the executive council on Sept. 11, 2017, more than three months after Iowa State began being charged for legal services from Husch Blackwell.

“There’s nothing wrong with filing a motion, there’s nothing wrong with using outside counsel to do it, but there is a process that state law requires to go through and it’s possible that they did an end-run around that legally required process,” said Frank LoMonte, attorney and director of the Brechner Center for Freedom of Information and former director of the Student Press Law Center.

Norton said nothing he did violated the law, saying Iowa Code 13.7 only applies to Iowa State if the outside attorney appears in court on behalf of Iowa State, which Norton referred to as “representation.”

“Representation that 13.7 is talking about is actual representation in litigation,” Norton said. “Lawyers represent us in aspects other than litigation all of the time, but representing the university in litigation means that you are on the pleadings, you are appearing in court, you are the person who’s representing the university in that matter.”

However, the law in question never uses the words “representation” or “appearance.” The law refers to “services as an attorney or counselor” and “legal assistance.”

Providing advice on specific litigation or assisting in drafting motions are considered “services as an attorney or counselor” and “legal assistance,” as it pertains to Iowa Code 13.7, LoMonte said.

“The statute does not say that it is triggered by an appearance in court,” LoMonte said.

What work was done, and when?

Invoices from Husch Blackwell in June and July 2017 indicate the firm accepted the offer to “provide the legal analysis and body of the motion to dismiss” as described in the June 1, 2017, email from Norton to Hayley Hanson, a partner who Norton worked with at Husch Blackwell. Norton confirmed Husch Blackwell accepted the offer and engaged in the work discussed in the email.

“They provided legal analysis that we provided to the [Iowa Attorney General’s] Office that ultimately went into the motion to dismiss,” Norton said.

A motion to dismiss is a motion submitted by a party in a legal matter asking a judge to dismiss a case.

“The [Attorney General’s] Office wrote the motion,” Norton said. “We provided, with Husch Blackwell’s help, analysis that went into [the motion]. I was asking them for legal analysis that would go into the body — the main part of the motion to dismiss.”

Norton said he did not know if the Attorney General’s Office was aware that Husch Blackwell had assisted in providing content for the motions.

“I don’t know,” Norton said. “You’d have to ask [the Attorney General’s Office]. I mean, they knew that we were providing research to them.”

A representative with the Attorney General’s Office declined to comment about the office’s knowledge of Husch Blackwell’s involvement before the Sept. 11, 2017, approval.

“It was the combined effort of the team, which included Husch Blackwell, [university counsel] and the [Attorney General’s] Office,” Norton said, but added he was unsure of how much work his department did versus how much work Husch Blackwell did.

Norton told the Daily in February 2018 that the listing of the charges as related to the case on Husch Blackwell’s invoices were what the firm chose to list them as, but not necessarily for services performed on the case.

“I don’t dictate how they designate what [Husch Blackwell is] going to put on the bill in terms of how they determine their [subject] matter, but the questions that we had of them were far broader than just the Niesen case,” Norton said when asked about the invoices.

Norton was asked in the February interview if Husch Blackwell was providing consultation specifically on the Niesen v. Iowa State case and receiving payment before their appearance was entered in court.

“They were consulting [with] us on Title IX issues, which had implications to the campus in general, as well as to issues that were raised in the Niesen case,” Norton said.

Norton did not disclose at the time that Husch Blackwell had provided services specifically for legal strategy and assistance in drafting motions prior to approval being given by the executive council.

“We only need approval if they’re representing us in litigation,” Norton said. “They were not representing us in the litigation at that time. They were just providing consulting services on Title IX issues like the training, [and] other issues related to how we handle our Title IX obligations.”

Norton was asked on Oct. 24, 2018, if providing legal analysis and body of a motion were consistent with his prior characterization of the work Husch Blackwell had performed before approval from the executive council was given.

“Absolutely, it’s core consulting services,” Norton said.

Norton was asked if the email and corresponding charges were not related to broader topics, but were in fact specifically pertaining to the Niesen case.

“No, not really,” Norton said. “I mean, it was issues that were targeted toward Niesen at this time, but also similar issues that we’ve used in other cases that we’ve used to analyze how we respond to cases that we had after that.”

Norton said the information provided by Husch Blackwell was for general Title IX law information and the university’s obligations under Title IX because of the allegations that ended up being used in the motion.

Norton was then asked if Husch Blackwell provided university counsel with specific legal analysis particularly for the Niesen case.

“That’s true,” Norton said.

Norton said the services Husch Blackwell provided before the Sept. 11, 2017, approval would have been covered under a previous contract to provide trainings and assistance with contracts.

“We are being retained to present FLSA [Fair Labor Standards Act] Training, Title IX Training and to assist with contracts,” the December 2016 document from Husch Blackwell reads. “In the event that we are asked to provide additional services, we will confirm such engagement in writing.”

Norton said the services were not confirmed in writing because they fell under the previous contract.

“I think the most natural and logical reading of the email is that they are asking the firm for something more than its previous consulting and to actually give substantive assistance with the drafting of a hurry-up motion,” LoMonte said.

What was spent, and where did it come from?

Redactions in the invoices made by Iowa State university counsel do not allow the Daily to confirm exactly what services were rendered. A total of $8,907 for 31.4 hours of work were charged to Iowa State by Husch Blackwell between June 2, 2017, and June 14, 2017, and listed by Husch Blackwell as pertaining to “Niesen v. Iowa State University.”

Norton said some of the charges were from the work he requested in the email, but he was unaware if all of the charges were.

“Thirty billable hours would be within the range of what you might expect to draft a motion,” LoMonte said. “That’s certainly not inconsistent with performing the service of drafting all, or part, of a motion.”

The motion to dismiss that Norton asked Husch Blackwell to provide “legal analysis and body [of the motion]” was submitted to the court by Iowa Attorney General Tom Miller and William R. Pearson, assistant attorney general, on June 19, 2017.

“The motion didn’t draft itself, somebody put work into it, and I guess that would be the question,” LoMonte said. “The public is very much entitled to know: What did they pay for [with] 30 hours of attorney time if it was not for preparing a motion?”

Payments made to Husch Blackwell come from Iowa State’s general university budget, which was composed of 59.8 percent tuition in 2016, the most recent year available.

Charges listed by Husch Blackwell for Niesen v. Iowa State University Et Al. began again on July 4, 2017, the day after Niesen filed a response to the motion to dismiss. The charges in July stop on July 10, the day Miller and Pearson filed a reply brief to the motion to dismiss. A total of $4,522.50 was charged for 16 hours of work in that time.

Norton confirmed Husch Blackwell had engaged in similar work in that time period.

“I’m sure I sent them the response [from Niesen], and asked them to provide the same type of analysis that would ultimately go in to the [Attorney General’s] Office and end up in the reply brief,” Norton said.

Invoices show $13,673 accrued from Husch Blackwell in the Niesen case between June 2, 2017 and Sept. 11, 2017.

Iowa Code 13.7 does not contain the word “representation” at any point in the text. When Norton was provided with the language of the law and asked to indicate where in the law he believed it indicated approval was not needed until an outside law firm appears in court on behalf of Iowa State, he refused to do so and referred the Daily to a past statement he made.

“It is not infrequent that a person might hire counsel to try and negotiate a resolution to a case and the case gets settled and the counsel performs quite a lot of legal service but never files a motion in court, that’s quite common,” LoMonte said, adding that when the counsel is performing a service, it is still regarded as representation.

This would mean that when Husch Blackwell began providing information to be included in motions and legal strategy, it would be considered representation, LoMonte said.

“The moment that somebody picks up the phone and says ‘I want you as my attorney to help resolve this claim,’ and I agree to take it, we have entered into representation,” LoMonte said. “I think most people in the profession say the representation starts when I shake hands with the client and say ‘I will take your case.’ It doesn’t start when I make the first filing in court, because I may never make a filing in court.”

Response from Iowa Attorney General

When asked on Oct. 16, 2018, if Husch Blackwell had helped write motions before approval was given, Lynn Hicks, director of communications for the Iowa Attorney General’s Office, said the office would comment no further on the matter.

“ISU is our client, so it’s not proper for us to comment on this email or the hiring of outside counsel,” Hicks said in an email to the Daily.

On two separate occasions prior to being shown the email between Norton and Hayley Hanson, Hicks had been willing to provide comment on the hiring of outside counsel.

Hicks told the Daily on Oct. 9, 2018, that Husch Blackwell was qualified and suitable to represent Iowa State and that Norton’s past employment at the law firm had no bearing on if the firm was qualified or suitable.

Hicks provided comment June 5, 2018, that Jeffrey Thompson, solicitor general, felt there was no potential conflict of interest. Hicks said on June 6, 2018, that he did not know if Norton’s employment history had been disclosed to the executive council.

Old connections, new relationship

Former Iowa State President Steven Leath hired Norton as Iowa State’s university counsel beginning July 11, 2016. Iowa State began being charged for services from Husch Blackwell on Sept. 16, 2016.

On Oct. 12, 2016, the law firm still had yet to be registered as a vendor for Iowa State, according to emails obtained by the Iowa State Daily between Stacy Sassman of Iowa State procurement services and Hanson.

John McCarroll, executive director of university relations, said he worked with Sassman to answer questions from the Daily on June 6, 2018. McCarroll said Iowa State contracted Husch Blackwell for the first time on Sept. 30, 2016, for Fair Labor Standards Act [FLSA] training, though the earliest charges from Husch Blackwell listed on invoices are dated Sept. 16, 2016.

Iowa State hired Husch Blackwell for “FLSA Training, Title IX Training and to assist with contracts,” according to a contract from Husch Blackwell obtained via public records request. The contract, dated Oct. 14, 2016, and received Oct. 16, detailed the nature of the agreement and made it official.

Norton had previously worked with Derek Teeter and Hanson, partners at Husch Blackwell, as co-counsel when he was a partner at the firm. Hanson and Teeter have been among the attorneys to represent Iowa State. LoMonte said this is all the more reason to make sure the processes in 13.7 were followed.

“The fact that it’s his former firm and that he has some professional ties to the people still there would counsel in favor of being over-compliant with state law,” LoMonte said.

“You would want to go overboard to make absolutely sure that you were careful about not giving the appearance of funneling any business to your buddies,” LoMonte said. “It’s especially concerning because that seems to be the exact situation for which the law was designed.”