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HomeMy WebLinkAboutCC Resolution 14848 (Consent to Concurrent Representation)1 RESOLUTION NO. 14848 RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A CONSENT TO CONCURRENT REPRESENTATION OF THE CITY OF SAN RAFAEL AND THE MARIN WILDFIRE PROTECTION AUTHORITY BY THE EPSTEIN + HOLTZAPPLE LAW FIRM WHEREAS, San Rafael City Attorney Robert Epstein is also a partner in the law firm of Epstein + Holtzapple LLP ("E+H") in San Rafael; and WHEREAS, E+H was recently hired for the position of general counsel to the newly formed Marin Wildfire Prevention Authority (“MWPA”), with attorney Megan Acevedo to act as E+H's primary attorney representing the MWPA; and WHEREAS, the City of San Rafael is a member of the MWPA; and WHEREAS, Rule 1.7 of the California State Bar’s 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. Moreover, such representation is only allowed if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and WHEREAS, Mr. Epstein and E+H do not believe there is a “significant risk” that E+H's representation of MWPA and Mr. Epstein's representation of the City will be materially limited by their responsibilities to or relationships with either of the two entities, and the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and WHEREAS, Mr. Epstein and E+H have confirmed that they will ensure that each entity’s confidential information is not shared with the other entity; and WHEREAS, Mr. Epstein and E+H have confirmed that they are aware of no current conflict of interest between the two entities; if in the future, either E+H, Mr. Epstein, or the City concludes that a conflict of interest does exist, Mr. Epstein and E+H will take steps to eliminate that conflict; NOW, THEREFORE IT IS HEREBY RESOLVED that the City Council does hereby approve and authorize the Mayor to execute the attached “Clients’ Consent to Concurrent Representation” of the City of San Rafael and the Marin Wildfire Protection Authority by Robert Epstein and the law firm of Epstein + Holtzapple LLP. 2 I, LINDSAY LARA, Clerk of the City of San Rafael, do hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on the 17th day of August 2020, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None LINDSAY LARA, City Clerk Clients' Consent to Concurrent Representation Epstein + Holtzapple LLP ("the Firm") has been requested to represent the Marin Wildfire Prevention Authority ("MWPA"). Megan Acevedo will be the primary attorney working for the MWPA. Rob Epstein is a partner in the Firm. Mr. Epstein also serves as part-time City Attorney for the City of San Rafael ("the City"). We are seeking your consent to this concurrent representation. Under Rule 1.7 of the California Rules of Professional Conduct, 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. Pursuant to this rule, concurrent representation under such circumstances is permitted only if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. (Cal. Bar RPC, Rule 1.7(d)). The Firm and Mr. Epstein believe that the Firm's representation of MWPA and Mr. Epstein's representation of the City do not present such a "significant risk." Nevertheless, we note that the Firm believes that it will be able to provide competent and diligent representation to MWPA, while Mr. Epstein believes that he will be able to continue to provide competent and diligent representation to the City. This concurrent representation is permitted by law and does not involve the assertion of a claim by one client against the other in any proceeding before a tribunal. We do not anticipate the Firm's representation of MWPA to interfere with the work that Mr. Epstein does for the City. Mr. Epstein will continue to serve as City Attorney and work closely with City staff and officials to offer advice on a broad range of legal issues that impact the City, including land use, emergency response, open meeting laws, and public contracting. We similarly do not anticipate Mr. Epstein's representation of the City to interfere with the work that the Firm will do for MWPA. MWPA is a newly formed joint powers authority made up of 17 member agencies from across Marin, including the City. The Firm will serve as General Counsel for the MWPA and its Board of Directors. Ms. Acevedo will assist the Board and staff with legal issues related to government transparency, environmental compliance, and other questions that may arise as the Board develops and implements a comprehensive wildfire prevention and emergency preparedness plan for most of Marin County. The Firm and Mr. Epstein will ensure that each client`s confidential information will not be shared. The Firm and Mr. Epstein are aware of no current conflicts of interest, though it is possible that a conflict could develop. If either client believes that they see a conflict of interest, or if either or both believe concurrent representation is no longer in their individual or joint interest, we ask that you notify the Firm and Mr. Epstein. If a conflict occurs, we will discuss the potential need for hiring outside counsel in relation to the conflict. Please be aware that MWPA and the City are invited to seek independent counsel at any time, regardless whether this consent form has been executed. Dated: Client Consent EPSTEIN + HDLTZ E LLP By: ob F. Eps Partner I have read and understand this consent to concurrent representation . I have had adequate opportunity to review it, and to decide whether to discuss it with separate counsel. I consent to the concurrent representation on the conditions stated above. Dated- R 1.,? -5 d2D� Dated: �> 7—S ^'lJ CIT By - May. l MARIN WILDFIRE PREVENTION AUTHORITY r� -�- By: -E-N �' Bruce Goines President, Board of Directors 2