STAFF REPORT
DATE: May 24, 2022
TO: Honorable Mayor and Members of the City Council
FROM: Joseph H. McDougall, City Attorney
SUBJECT: Approval of Informed Consent and Waiver of Potential Conflict in Legal Representation of The Bur bank Housing Corporation by Goldfarb & Lipman, and Authorization for City Attorney to Execute
RECOMMENDATION
Authorize the City Attorney or desi gnee to sign the consent (Attachment 1, page 4) to Goldfarb & Lipman representing t he Burbank Housing Corporation (BHC) on work related to restructuring a master loan agreement between the City and BHC (“Master Loan Agreement”) and advice on the effects of such a restructuring on BHC’s transitional housing units.
BACKGROUND
Goldfarb & Lipman submitted the attached “Consents to Potential Conflict of Interest – City of Burbank and Burbank Housing Corporation” letter (“Lette r”).
This Letter follows Rules 1.4 and 1.7 of the State Bar of California’s Rules of Professional Conduct, which imposes an ethical duty u pon Goldfarb & Lipman to inform the City if they intend to represent a client that may ha ve interests that are adverse to the City.
Goldfarb & Lipman appears to have already obtained the consent of BHC on April 5, 2022, and through this Letter, seeks the Ci ty’s consent to their representation of BHC on work related to restructuring the Master Loan Agreement and related matters.
DISCUSSION
Rule 1.7 permits attorneys to represent multiple clients with current or future adverse interests only after receiving informed wri tten consent of each client, provided the attorney: (1) reasonably believes that the attorney will be able to provide competent and diligent representation to each affect ed client; (2) the representation is not CITY ATTORNEY’S
OFFICE
prohibited by law; and (3) t he representation does not in volve the assertion of a claim by one client against another client r epresented by the attorney in the same litigation or other proceeding before a tribunal.
Goldfarb & Lipman previously represented the City on fair housing issues related to group homes and assisted with review of a density bonus appli cation, and last completed such work for the City in January 2018. Goldfarb & Lipman has confirmed that they have not represented the City regarding the Master Loan Agreement, any loan agreements, or on transitional housing issues.
After reviewing Goldfarb & Lipman’s representations in the Letter, it is the position of the City Attorney’s office that Goldfarb & Lipman’s representation of BHC on work related to restructuring the Master Loan Agreement and related matters will not compromise or be compromised by Goldfarb & Lipman’s representation of the City, especially where Goldfarb & Lipman’s previous work did not involve the Master Loan Agreement, Goldfarb & Lipman’s warranty that they cannot and would not disclose any confidential information to BHC even if such information exists, and Goldfarb & Lipman’s representation of BHC involves no litigation with the City.
Although there is always a potential for a c onflict of interest under the State Bar rules, it is unlikely here based upon the work described in the Letter, and Goldfarb & Lipman has represented that they will seek further informed consent from the City if a scenario arises that would compromise their independent judgment or loyalty to the City.
For the reasons stated above, it is the position of the Cit y Attorney’s office that Goldfarb & Lipman’s representation of BHC will not compromise the firm’s representation of the City and the City may provide the informed written consent as requested by Goldfarb & Lipman.
FISCAL IMPACT
None.
CONCLUSION
Based on the Letter and the advice of the City Attorney’s Office, authorize the City Attorney to sign the consent requested by Goldfarb & Lipman related to their concurrent representation of BHC and the City, as outlined above.
ATTACHMENT
Attachment 1 - “Consents to Potential Conf lict of Interest – City of Burbank and Burbank Housing Corporation” letter