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HomeMy WebLinkAbout2007/04/03 Item 2 COUNCIL AGENDA STATEMENT Item 2- Meeting Date 4/03/07 ITEM TITLE: Resolution of the City Council of the City of Chula Vista adopting the City Council Policy regarding consideration of attorney requests for Waivers of Potential Conflicts of Interest SUBMITTED BY: City Attorney City Attorneyo.. jI\. (4/5ths Vote: _ No _X~ REVIEWED BY: RECOMMENDATION: That Council adopt the resolution approving City Council Policy regarding consideration of Attorney requests for Waivers of Potential Conflicts of Interest. BOARDS/COMMISSION: Not applicable. DISCUSSION: The City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City. The requests arise out of the California Rules of Professional Conduct, governing attorneys who practice law in California. Among other things, those rules require that, in certain circumstances, an attorney must obtain the informed written consent of a current or former client before beginning or continuing the representation of another client. This requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attorney has obtained confidential information about the fust client that may be used to the detriment of that client in connection with the representation of another client. Currently, each time the City receives an attorney's request to waive a conflict of interest, the request must go to the City Council for consideration. The proposed policy would establish procedures by which the City Attorney would review each request, determine whether a conflict exists and, if so, whether the City should waive the conflict. The policy would authorize the City Attorney to consider each request pursuant to the California Rules of Professional Conduct, which preempt any conflicting local codes. The policy will allow a ten-day appeal period, during which the attorney requesting the waiver can appeal the City Attorney's decision to the City Council, or the Mayor or any member of the City Council can request to hear the matter directly. Staff believes the proposed policy to serve many purposes, including: (1) reduce the amount of City time and resources otherwise required to process each individual proposed representation; (2) allow the attorney to respond more quickly to client requests for assistance, which are often 2-1 Page 2, Item ~ Meeting Date 4 03 07 time sensitive; and (3) help protect client confidentiality by not exposing private matters to public disclosure where public disclosure is premature or not required. DECISION MAKER CONFLICTS: Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable to this decision. FISCAL IMP ACT: There is no fiscal impact to the General Fund. J :attomey/ Agenda Statements/waiver of potential conflicts of interest 3 27 07 2-2 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFUCTS OF INTEREST I ADOPTED BY: AMENDED BY: COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 10F4 I DATED: 04/03/07 I. RAC:Kr.ROTTNTl The City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City. The requests arise out of the rules of professional conduct governing attorneys who practice law in California. Among other things, those rules require that, in certain circumstances, an attorney must obtain the informed written consent of a current or former client before beginning or continuing the representation of another client. This requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attorney has obtained confidential information about the first client that may be used to the detriment of that client in connection with the representation of another client. To date, each of these waiver requests has been presented to the City Council for consideration and action. II. PTTRPOSR The purpose of this Policy is to establish rules and procedures governing the application of the California Rules of Professional Conduct (the "Rules") to current and former members of the Chula Vista City Attorney's office and to outside counsel retained by the City. Implementation of the Policy will allow the City Attorney's office to consider conflict waiver requests submitted to the City by attorneys formerly employed by the City, or by law firms who have represented the City. The Policy will delineate the specific types of conflict waiver requests that can be considered and decided on by the City Attorney. Requests that fall outside of those identified in the Policy, shall be considered and acted on by the City Council. This Policy is intended to comply with, and implement, the Ru1es governing conflict of interest waivers. Those Ru1es are adopted by the Board of Governors of the State Bar of California and approved by the Supreme Court of California.l The Rules are binding on all members of the State Bar and take precedence over local regu1ation. Thus, to the extent this Policy conflicts with any provision of the Chu1a Vista Municipal Code, including CVMC 92.28.050, this Policy shall govern. 1 See, Cal.Rules of Pro fl. Conduct, 1-100. 2-3 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFLICTS OF INTEREST I ADOPTED BY: AMENDED BY: llI. POT,Try COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 20F4 I DATED: 04/03/07 A. AVOIDING REPRESENTATION OF ADVERSE INTERESTS An attorney who represents or has previously represented the City shall avoid representing interests adverse to the City's interests; this applies to attorneys employed by the City, as well as outside counsel retained by the City.2 Notwithstanding this RuIe, the attorney's representation of potentially adverse interests may be permitted in certain circumstances, if the attorney obtains the City's informed, written consent. Those instances in which representation is permitted if consent is obtained are discussed below. 1. Adverse Interests RuIe 3-310(C) provides that a member shall not, without the informed written consent of each client: (i) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (ii) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (iii) 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. This RuIe contemplates the concurrent representation by an attorney of one or more clients whose interests are adverse to each other. Accordingly, any attorney who currently represents the City and is presented with representing another client whose interests are adverse to those of the City, as described in RuIe 3-310(C), must obtain the City's informed written consent before accepting or continuing the adverse representation. That consent must be obtained pursuant to the procedures outlined in section IILB., below. 2. Confidential Information RuIe 3-310(E) prohibits a member of the Bar from accepting employment adverse to a current or former client, without the informed written consent of the client, "where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." 2 Id at 3-310. 3 See, Cal.Rules of Prof' I. Conduct, 3-700. 2-4 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR W ANERS OF POTENTIAL CONFLICTS OF INTEREST I ADOPTED BY: AMENDED BY: COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 30F4 I DATED: 04/03/07 This Ru1e is intended to protect the confidences of the member's clients and is applicable to attorneys currently or formerly employed, or retained, by the City. The Ru1e applies to situations where confidences obtained through attorney-client communications or work product materials allow an unauthorized disclosure of confidential materials that could adversely affect the City or its Council Members, officials, or employees in the performance of their duties. Accordingly, any attorney who currently represents or has previously represented the City and has obtained material, confidential information of the City relative to the proposed adverse employment, must obtain the City's informed written consent before accepting the adverse representation. That consent must be obtained pursuant to the procedures outlines in section Ill.B., below. B. OBTAINING CITY'S CONSENT 1. Delegation of Authority If an attorney who currently represents or formerly represented the City is required to obtain the City's informed written consent pursuant to section Ill.A., of this Policy, he or she must do so by following the procedures set forth in this section. The City Council has delegated to the City Attorney the responsibility of making factual and legal determinations regarding the application of this Policy. If the matter in question involves the current City Attorney, the City Council shall retain jurisdiction over that matter. 2. Procedure a. An attorney who is required to obtain the City's informed written consent pursuant to this Policy must disclose, in writing, all relevant circumstances and actual or reasonably foreseeable adverse consequences to the City of the attorney accepting or continuing the potentially adverse representation. The City Attorney shall independently review the written disclosure. The City Attorney may request additional information relevant to the representation, as he or she deems necessary to assess the potential adverse consequences to the City. The City Attorney shall determine whether a conflict of interest exists and, if so, whether the City shou1d waive the conflict. b. Upon determining whether a conflict exists and, if so, whether a waiver shou1d be granted, the City Attorney shall issues a written decision. This written decision shall be forwarded to the individual and/or law firm requesting the waiver, with copies forwarded to the Mayor and City Council members. The decision of the City Attorney may be appealed within ten days to the Mayor and the City CounciL The Mayor or any member of the City Council may also request to hear the matter within the same time frame. P. Tn m;::tldno :::I t1f':(',i!':inn nllTQ.lmnt to thiq, P()li~v th~ ritv Attnmf':v mftv Tp.lv j!-::> COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: CONSIDERATION OF AITORNEY POLICY EFFECTIVE REQUESTS FOR WAIVERS OF NUMBER DATE PAGE POTENTIAL CONFLICTS OF 40F4 INTEREST . I ADOPTED BY: I DATED: 04/03/07 I AMENDED BY: I upon statutes, regulations, case law, treatises, and Opinions of the Attorney General and any other relevant material deemed necessary to assist in making his or her decision. The City Attorney will take into consideration that attorneys, in accordance with the Ru1es of Professional Conduct, are not required to disclose confidential information regarding their clients to any third parties. In addition the City Attorney will take into consideration whether the attorney has personally worked on a matter and the time frame of his last employment with, or by, the City. d. If a written waiver is not granted by the City Attorney or City Council, as specified in this Policy, the attorney requesting the waiver, including his or her firm when applicable, may not engage in the adverse representation. If the attorney has already accepted employment which is determined to be adverse to the City and the City Attorney determines the Ci~ should not waive the conflict of interest, the attorney must withdraw from the adverse employment. C. POLICY EXCEPTIONS Potential conflicts of interest, and requests for waivers of those conflicts, which are not covered by this Policy or which directly involve the current City Attorney, will be considered directly by the City Council. H:/Council Policy Updates/Conflict of Interest Policy 2-6 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING CITY COUNCIL POLICY REGARDING CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFLICTS OF INTEREST WHEREAS, the City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City; and WHEREAS, this requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attomey has obtained confidential information about the fIrst client that may be used to the detriment of that client in connection with the representation of another client; and WHEREAS, these requests are currently considered individually by the City Council; and WHEREAS, a policy authorizing the City Attorney to review and consider these requests would: (1) reduce the amount of City time and resources otherwise required to process each individual proposed representation; (2) allow the attorney to respond more quickly to client requests for assistance, which are often time sensitive; and (3) help protect client confidentiality by not exposing private matters to public disclosure where public disclosure is premature or not required; and WHEREAS, the proposed City Council Policy Regarding Consideration of Attorney Requests for Waivers for Potential Conflicts of Interest would: (i) authorize the City Attorney to consider waiver requests, determine whether a potential conflict exists and, if so, whether the City should waive that conflict, pursuant to the California Rules of Professional conduct; (ii) require the City Attorney to provide a written copy of the determination to the attorney requesting the waiver, and to the Mayor and City Council; and (iii) allow a ten-day appeal period during which the requesting attorney can appeal the City Attorney's decision to the City Council, or the Mayor or member of the City Council can request that the City Council hear the matter directly. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista adopt the City Council Policy regarding consideration of attorney requests for waivers of potential conflicts of interests. Presented by Approved as to form by Ann Moore City Attorney ~~~~~O\ Ann Moore City Attorney 2-7