How Cities and Towns Acquire Legal Services

How do cities and towns obtain legal services? With county government, it's easy: the elected prosecuting attorney provides the county legal services under the state constitution. When it comes to cities and towns, though, the answer is not always that easy, and it depends on both the type and governance structure of the locality.

Statutory Requirements

The statutes that apply to city and town attorneys all recognize that legal services will be needed. For towns, RCW 35.27.070 provides that a mayor may appoint an attorney. For second-class cities, RCW 35.23.021 authorizes the city council to enact an ordinance providing for the appointment of a city attorney. In a mayor-council code city, RCW 35A.12.020 provides, in relevant part, that:

Provision shall be made for obtaining legal counsel for the city, either by appointment of a city attorney on a full-time or part-time basis, or by any reasonable contractual arrangement for such professional services.

In a council-manager code city, the options are similar to mayor-council code cities, although a recommendation by the city manager is first required before the city council makes its decision. See RCW 35A.13.090 and RCW 35A.13.090.

The charters and ordinances of first-class cities will determine how those cities obtain legal services. For example, Seattle has an elected city attorney, in Tacoma the city manager appoints the city attorney, and in Spokane the mayor appoints the city attorney.

Option 1: Office of City Attorney

One way for a city or town to acquire legal services is for the council to create the position of city (or town) attorney by ordinance, to be filled like other appointive offices, with the selection made either by the mayor or the city/town manager, as the case may be. 

The city or town council would determine the attorney’s compensation and provide funding for the position. Once the city attorney’s position had been created and the compensation set by the council, either the mayor or the manager, as the case may be, would select a qualified attorney to fill it.

There are some variations to this process for a council-manager code city. For this type of city, the council sets the compensation level only after the city manager makes a recommendation (see RCW 35A.13.090).

Further, though the mayor or manager normally selects a person to fill the attorney position, some councils have the authority to confirm appointments. This includes second-class city councils (RCW 35.23.021) and councils in a mayor-council code city (RCW 35A.12.090), but only if confirmation has been provided for by ordinance and the “qualifications for the office or position have not been established by ordinance or charter provision.”

If a city attorney position is subject to council confirmation, the mayor’s appointment is not final until the council confirms the appointment. If the council does not confirm, the mayor will need to make a new appointment. Note, though, that town and council-manager code city councils do not have the authority to confirm any appointments. See RCW 35.27.070 and RCW 35A.13.080(2).

However, filling a city attorney position by appointment or hire as a city employee is only one way to obtain legal services. A second option is to contract for such services.

Option 2: Contracting with City Attorneys

For many cities and towns, it makes more sense to contract with private practice attorneys with expertise in municipal law. MRSC’s webpage Personal Services & Consultant Contracts has several examples of RFPs and RFQs for city attorney legal services, since, from a procurement perspective, contracts with attorneys to provide legal services are considered contracts for personal services.

As with most other municipal contracts, legal authority to enter and end legal services contracts belongs to the city or town council. If the position of attorney has been made an office, but one to be filled by a contract for services, the mayor or manager would select someone to contract with to fill the office, subject to possible confirmation and the approval of a contract by the city or town council. If the council does not approve a contract or confirm the appointee, the process to make a selection would need to be restarted.

When legal services are to be provided by contract (as decided by the council) and the attorney position has not been made an office by ordinance or charter provision, the council would have sole authority to decide who should provide the services as well as determine the provisions in the legal services contract (e.g., compensation, responsibility for ordinances and contracts, meetings to attend, etc.). The mayor or manager may and likely would offer recommendations for such provisions.

The Washington State Court of Appeals case Koler v. Black Diamond (2021) discussed the relationship between a mayor’s and council’s roles in obtaining city attorney services. The court found that an attorney of a contracted law firm is not an employee of the city, and in the event the city attorney is not an appointed office, then the council, not the mayor or manager, gets to decide whether to retain the firm’s services. 

Changing City Attorneys

Who makes the decision to terminate a city or town attorney or a legal services contract? It depends. If the position of city (or town) attorney is an office or an employment, then the mayor or manager would make that decision. Such a decision would not be subject to council review or confirmation. 

If the attorney services are obtained strictly through a professional services contract — meaning no office has been created by ordinance or charter provision — the city or town council would make the decision to terminate the contract. The contract will likely contain terms relating to a possible termination, such as notices of termination, penalties for an early termination, and/or severance requirements, and there could be legal or financial pitfalls involved for the city or town if the termination is not consistent with the contract. Contract provisions should be reviewed and carefully considered before making a decision to end a legal services contract.

In either case, we recommend seeking the legal advice of the current city or town attorney about potential changes in how legal services are provided.

Conclusion and Resources

Whether they are employed by their local government or under a legal services contract, city and town attorneys are essential to most aspects of their agency’s business of serving the public. We recommend you continue to work closely with your agency’s attorneys, including when it comes to making changes in how legal services are obtained and who is selected to provide these services.

Below are additional resources:

• MRSC
  • Personal Services & Consultant Contracts: Provides an overview of procedures local governments should follow when contracting for "personal services" provided by consultants, including definitions and examples of personal services, competitive processes, RFPs vs. RFQs, and examples of contracts and solicitations.
  • Roles and Responsibilities of Local Government Leaders: Provides an overview of the powers of the legislative and executive branches of cities and counties, the role of the city attorney or county prosecutor, and practical tips for avoiding conflicts.
• Washington State Attorney General: AGO 1997, No. 7: Summarizes mayoral and council authority in the context of contracting for city attorney legal services.