Meeting Date: December 6, 2012
Prepared by: Jason Stilwell
City Council
Agenda Item Summary
Name: Consideration of a Resolution approving a Conflict of Interest Waiver for the City Attorney regarding providing legal services for the Monterey Peninsula Regional Water Authority (MPRWA).
Description: City Attorney Donald G. Freeman has been requested to represent the MPRWA as its legal counsel. Mr. Freeman, who also serves as City Attorney for the City of Seaside as its City Attorney has submitted a letter, dated October 16, 2012, indicating that he does not believe that his legal services for the MPRWA will have any impact on his full and effective representation of either city and does not believe that he has knowledge of any confidential information from either party that would be material or relevant to his representation.
Staff Recommendation: Adopt the Resolution and authorize the Mayor to execute a Consent and Waiver of Conflict oflnterest acknowledging Donald Freeman as legal counsel for the MPRWA.
Important Considerations: Rule 3-310 of the California Rules of Professional Conduct, which governs California attorneys, requires the informed written consent of all represented parties because of concurrent representation. The City Council has reviewed this request with independent legal counsel.
Decision Record: None.
Reviewed by:
Jason Stilwell, City Administrator Date
CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2012-
WHEREAS, Donald G. Freeman has been requested to represent the Monterey Peninsula Regional Water Authority; and
WHEREAS, Donald G. Freeman is currently the City Attorney for the City of Carmel-by-the-Sea and the City of Seaside; and
WHEREAS, Donald G. Freeman and the City recognize the potential conflict of interest which may arise as a result of Donald G. Freeman’s legal representation of the City of Carmel-by-the-Sea, the City of Seaside and the Monterey Peninsula Regional Water Authority; and
WHEREAS, the City of Carmel-by-the-Sea wishes to acknowledge Donald G. Freeman as legal counsel for the Monterey Peninsula Regional Water Authority; and
WHEREAS, the City of Carmel-by-the-Sea Mayor and members of the Carmel-by-the-Sea City Council have received a letter from Donald G. Freeman dated October 16, 2012, indicating that Mr. Freeman does not believe that his legal services for the Monterey Peninsula Regional Water Authority will have any impact on his full and effective representation of each party, and does not believe he has knowledge of any confidential information from any party which would be material or relevant to his representation of the City of Carmel-by-the-Sea, the City of Seaside, or the Monterey Peninsula Regional Water Authority; and
WHEREAS, the Mayor and Members of the City Council have reviewed this request with independent legal counsel; and
WHEREAS, according to Rule 3-310 of the California Rules of Professional Conduct applicable to California lawyers which requires informed consent of all represented parties because of concurrent representation, the City of Carmel-by-the-Sea recognizes that Donald G. Freeman is the City Attorney for the City of Carmel-by-the-Sea, and for the City of Seaside; and
WHEREAS City Council wishes to authorize the Mayor to execute a Consent and Waiver of Conflict of Interest, and hereby Donald G. Freeman as legal counsel for the Monterey Peninsula Regional Water Authority.
NOW, THEREFORE, BE IT RESOLVED, that the Mayor of the City of Carmel-by-the-Sea is hereby authorized to execute on behalf of the City of Carmel-by-the-Sea a Consent and Waiver of Conflict of Interest thereby acknowledging Donald G. Freeman as legal counsel for the Monterey Peninsula Regional Water Authority.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this 6th day of November 2012, by the following roll call vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
SIGNED,
___________________________
JASON BURNETT, MAYOR
ATTEST:
________________________________
Heidi Burch, City Clerk
THOMAS K. PERRY (1904-1971)
DONALD G. FREEMAN
LAW OFFICES
Perry and Freeman
SAN CARLOS BETWEEN 7th AND 8th
POST OFF ICE BOX 805
Carmel-by-the-Sea. California 93921
TELEPHONE
AREA CODE 831 624-5339
FAX (631 I 624-5639
October 16, 2012
Mayor and Members of the City Council
City of Carmel-by-the-Sea
Re: Disclosure of Relationship: Waiver of Conflict of Interest
The purpose of this letter is to disclose to you and the City Council in writing the potential conflict.of interest which may arise as a result of my representation of the City of Carmel-by-the- Sea, the City of Seaside and the Monterey Peninsula Regional Water Authority regarding unrelated matters. At the present time I represent both the City of Carmel-by-the-Sea and the City of Seaside as City Attorney wherein I provide general legal services. Recently I applied for and was selected as Legal Counsel for the Monterey Peninsula Regional Water Authority subject to disclosing and obtaining informed written consent from each City and the Authority.
The applicable California lawyers, written consent of representation which loyalty. Rules of Professional Conduct applicable to attached as Exhibit "A", require informed all parties because of this concurrent possibly could create an issue of divided
I do not believe my proposed representation of the City of Carmel-by-the-Sea, the City of Seaside and the Monterey Peninsula Water Authority regarding my position as City Attorney or general legal services for the Authority will have any impact on my full and effective representation of each party. In addition, I do not
believe I have received any confidential information from any party which would be material or relevant to my representation of the City of Carmel-by-the-Sea, City of Seaside or the Monterey Peninsula Regional Water Authority at this time. Further, I do not anticipate receiving any confidential information from any party
which would be material or relevant to my representation of any of the parties .
However, by concurrently representing each City and the Authority an issue of divided loyalty, such as in litigation, could possibly arise at some future date should circumstances change. Should that occur it would be necessary for me to make full disclosure to all parties and I could be subject to disqualification from representing any party. In such an instance it could be necessary for each City as well as the Authority to
seek independent legal counsel.
Given the requirements of the California Rules of Professional Conduct I request that you consider this disclosure and signify your informed written consent by signing and returning this letter to me.
I encourage you to seek independent legal counsel regarding the importance of this consent, and emphasize that you remain completely free to seek independent legal counsel at any time even if you decide to execute the consent form set forth below.
If you have any questions or need additional information, please contact me.
Sincerely,
Donald G. Freeman
CONSENT AND WAIVER OF CONFLICT OF INTEREST
As Mayor of the Carmel-by-the-Sea, and as authorized by the City Council in accordance with Resolution 2012- , dated November , 2012, I acknowledge receipt of the above written disclosure dated
October 16, 2015 pursuant to the Rules of Professional Conduct attached as Exhibit "A"; and after a Noticed Public Meeting held on November , 2012, and advice from independent legal counsel, confirm and approve the Consent and Waiver of Conflict of Interest provided by Donald G. Freeman regarding concurrent representation of the City of Carmel-by-the-Sea, the City of Seaside, and the Monterey Peninsula Regional Water Authority of any actual or potential conflicts of interest that may arise from such representation. Should an actual conflict of interest arise between any of the parties I understand that Donald G. Freeman may withdraw from his representation of the City of Seaside as it relates to any conflict.
Dated: --------------' 2012 CITY OF CARMEL-BY-THE-SEA
JASON BURNETT, Mayor
Rule 3-310 of the California Rules of Professional Conduct:
"(B) A member shall not accept or continue representation of a client without providing written disclosure to the client where:
"(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or
"(2) The member knows or reasonably should know that:
"(a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and
"(b) the previous relationship would substantially affect the member's representation; or
"(3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or
"(4) The member has or had a legal, business, financial, or professional interest in the subject matter of the representation."
"(C) A member shall not, without the informed written consent of each client:
"{1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
"{2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or
"(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.
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