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File #: 2022-2104   
Type: Consent Calendar Item
Body: City Council
On agenda: 6/21/2022
Title: Recommendation to Authorize the City Attorney to Consent to Law Firm Shute, Mihaly and Weinberger LLP's (SMW) Request to Waive Conflicts of Interest in Connection with SMW's Legal Representation of the City of Alameda and the Alameda County Waste Management Authority. (City Attorney 10023040)
Attachments: 1. Exhibit 1 - Consent to Potential Conflict of Interest

Title

 

Recommendation to Authorize the City Attorney to Consent to Law Firm Shute, Mihaly and Weinberger LLP’s (SMW) Request to Waive Conflicts of Interest in Connection with SMW’s Legal Representation of the City of Alameda and the Alameda County Waste Management Authority. (City Attorney 10023040)

Body

 

To: Honorable Mayor and Members of the City Council

 

EXECUTIVE SUMMARY

 

The City Attorney’s Office seeks authorization from the City Council to consent to law firm Shute, Mihaly and Weinberger LLP’s (SMW) request to waive potential conflicts of interest (Consent) arising from SMW’s legal representation of both the City of Alameda (City) and the Alameda County Waste Management Authority. (StopWaste).  SMW serves as General Counsel to StopWaste and intends to provide legal services to the Authority in connection with the leasing of a property at 950 West Tower, Building 39 on Alameda Point. The City Council previously authorized the City Manager to negotiate a lease with StopWaste at this location, and if approved the City would serve as StopWaste’s landlord at this location for the duration of the lease. Separately and unrelated to the Building 39 lease, SMW has and continues to serve as special counsel, under the direction of the City Attorney, for the City in connection with development projects and land use matters, especially on tidelands related issues with SMW has specific expertise (City Transactions). SWM has committed to use different attorneys for its City representation and StopWaste Representation. As to the different attorneys who provide legal services to the City and to StopWaste, SMW has agreed to implement ethical walls in connection with its current and future representation of City and StopWaste.  Nonetheless, SMW’s proposed representation of the City and StopWaste constitutes a “directly adverse conflict” under the Rules of Professional Conduct and requires written consent from the City and StopWaste.

 

BACKGROUND

 

SMW has an existing client relationship with both City and StopWaste and wishes to continue representing both City and StopWaste in the future.  Representation of StopWaste by SMW will be in connection with the Building 39 lease. The representation of City by SMW will be in connection with City Transactions and not the Building 39 lease.

 

DISCUSSION

 

Rule 1.7 of the California Rules of Professional Conduct provides that: “A lawyer shall not, without informed written consent from each affected client . . . , represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client . . . .”  This is commonly referred to as a lawyer’s “duty of undivided loyalty and independent judgment” to his/her clients.  The duty of undivided loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed written consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. See Flatt v. Superior Court (1994) 9 Cal.4th 275.  Both Rule 1.7 and judicial precedents make clear that a “directly adverse conflict” includes the situation where “a lawyer accepts representation of a person in a matter in which an opposing party is a client of the lawyer or the lawyer’s law firm.”

 

SMW intent to represent the StopWaste with respect to the Building 39 lease creates a directly adverse conflict under Rule 1.7 and thus requires written consent from the City and StopWaste.  SMW has informed the City that separate attorneys will represent StopWaste and the City, and in no circumstance would SMW attorneys be directly adverse to each other.  SMW has also committed to screening those attorney teams from each other so that they will not share any information about their respective representations. The City Attorney’s Office does not intend to engage SMW in connection with the Building 39 lease and expects to use in-house attorneys to represent the City.  Under these circumstances, the City Attorney’s Office does not object to SMW’s request and recommends approval.

 

ALTERNATIVES

 

                         Authorize the City Attorney to execute the Consent in the form attached (Staff Recommendation).

       Authorize the City Attorney to execute the Consent with changes, as directed by City Council.

        Do not authorize the City Attorney to execute the Consent.

 

FINANCIAL IMPACT

 

There is no financial impact from executing the Consent.

 

MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE

 

This action is consistent with the Alameda Municipal Code.

 

ENVIRONMENTAL REVIEW

 

The California Environmental Quality Act (CEQA) applies only to projects that have the potential for causing a significant effect on the environment.  This action is not a project pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15378.

CLIMATE IMPACTS

 

There are no climate impacts arising from this action.

 

RECOMMENDATION

 

Authorize the City Attorney to consent to law firm Shute, Mihaly and Weinberger, LLP’s request to waive conflicts of interest in connection with SMW’s legal representation of the City of Alameda and StopWaste.

 

Respectfully submitted,

Len Aslanian, Assistant City Attorney

 

Financial Impact section reviewed,

Margaret L. O’Brien, Finance Director

 

Exhibit:

1.                     Consent to Potential Conflict of Interest

 

cc:                     Dirk Brazil, Interim City Manager