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Legal Eagles: The role of the League and your town attorney 

By: Kim Hibbard, NCLM General Counsel
John Phelps, NCLM Associate General Counsel
Gregg Schwitzgebel, NCLM Associate General Counsel

With this issue of Southern City, we begin a new column designed to provide perspectives on frequently asked questions and legal topics of interest. Our aim in writing this column is to be as helpful as possible, but we begin with an important cautionary note.

The League’s Legal Affairs Department is generally responsible for providing internal legal advice and assistance to other departments of the League, supporting the legislative advocacy program, and providing appellate advocacy through our “friend of the court” briefs in cases of statewide significance.  We also provide several forms of direct assistance to League members, including answering legal inquiries, and developing various published materials and educational presentations.  But before you call us for guidance on a legal matter, you should consider this.

The North Carolina General Statutes are clear that a municipal governing board must appoint an attorney to be its legal adviser (G.S. 160A-173.) The wording of this one-sentence statute is mandatory.  Attorneys in the League’s Legal Affairs Department cannot fill this role. In other words, while we provide an array of advocacy-based services on a statewide basis, we do not directly represent your particular municipality, and our assistance should not be considered a substitute for that of the local city or town attorney required to be appointed by statute.

There are sound reasons for this. Cases may hinge on complex local facts, documents, or numerous other variables, and only the local legal counsel representing the municipality is in a position to provide an informed interpretation. In addition, some areas of the law are more unsettled than others and are open to varying legal interpretations. The local appointed attorney, as the legal adviser to the governing body, will be the one defending the municipality's position if challenged. In addition, the appointed attorney has a unique attorney-client relationship with the town that carries with it certain privileges (such as consultation in a closed session and confidentiality of written advice) that would not apply to communication with League attorneys.

Generally speaking, League attorneys will try to provide guidance and supplemental information based on our familiarity with legislation, case law and typical municipal practices, but we do not hold ourselves out as experts in all substantive areas. Where appropriate, we will refer you to another resource or to your own municipal attorney.

While the law requiring the appointment of an attorney is mandatory, a municipality has considerable flexibility in how to structure and arrange its relationship with the attorney appointed to be its legal adviser. If your municipality ever finds itself in the process of looking for a city attorney, the UNC School of Government’s publication County and Municipal Government in North Carolina contains articles examining such arrangements and the overall relationship between a council and its attorney on its website here.

We look forward to providing perspectives on legal topics in this column in future issues. While we are always pleased to provide information as a service and supplement research where we can, we respectfully ask you to be mindful that it is ultimately the town attorney, under the law, who must advise the council.