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October 30, 2023
via email
Joseph H. McDougall
City Attorney
City of Burbank
275 East Olive Avenue
Burbank, CA 91502
Sylvia Moreno
Executive Director
Burbank Housing Corporation
1819 Grismer Avenue
Burbank, CA 91504
Re: Consents to Potential Conflict of Interest – City of Burbank and Burbank Housing Corporation
Dear Mr. McDougall and Ms. Moreno:
We write this letter to request the consents of the City of Burbank (the "City") and Burbank Housing Corporation ("BHC") (collectively, the "Parties") to Goldfarb & Lipman LLP 's ( "Goldfarb & Lipman ") expanded representation of BHC and to Goldfarb & Lipman's expanded representation of the City regarding separate matters .
As previously consented to by the City and BHC in the conflict waiver letter dated May 10, 2022 (the "2022 Conflict Letter") , Goldfarb & Lipman represent s BHC in restructuring the Master Loan Agreement between the City and BHC and drafting and reviewing required legal documents to implement any restructured agreement as well as advising BHC regarding the potential restructure for its transitional housing units (the "Restructure Proposal "). Goldfarb & Lipman would now also represent BHC regarding all aspects (other than land use and tenant protection program issues) of the development or redevelopment of existing and new affordable housing projects in the City, including the acquisition of real property , the construction and development or redevelopment of new affordable housing, formation of affiliated entities for new developments, preparation and review of loan and other financial documents, and provision of real estate and tax credit advice in connection with the new affordable housing developments (the "Affordable Housing Project Assistance"). The Affordable Housing Project Assi stance may include requests for additional financial assistance from the City and include preparation and rev iew of legal documen ts regarding such City financial assistance, including without limitation the possible new City assistance to the redevelopment of the Fairview properties into a new tax credit project.
As previously consented to by the City and BHC in the 2022 Conflict Letter, Goldfarb & Lipman represent s the City regarding land use laws related to housing and has represented the City regarding litigation involving state land use laws and the implementation of settlement of that litigation (the "Land Use Representation").
Goldfarb and Lipman would now also represent the City regarding potential ATTACHMENT 1
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establishment of tenant protection programs (the "Tenant Protection Representation"). However, Goldfarb & Lipman would not represent either the City or BHC regarding land use matters involving both BHC and the City of Burbank.
The specific purpose of this letter is to advise you of a potential conflict of interest of Goldfarb & Lipman due to the Land Use Representation and Tenant Protection Representation of the City and the representation of BHC in the Restructure Proposal and the Affordable Housing Project Assistance as described below. To undertake this representation, we are required to (1) disclose in writing our relationships with each of you, and (2) obtain the informed written consent of each of you to such potential conflict of interest, as described in this letter. We believe that we will be able to provide competent and diligent representation to BHC and the City in these matters.
I. Existing Relationships.
Goldfarb & Lipman formerly represented the City regarding fair housing issues related to group homes and assisted with review of a density bonus application. We have not represented the City regarding the Master Loan Agreement nor in regard to any loan agreements, the new BHC housing developments or BHC transitional housing issues. Our recent representation of the City involved advice provided in regard to land use planning laws, especially those related to approval of housing development projects, and representation of the City in litigation involving state land use laws, in particular regarding Pickwick Investment LLC v. City of Burbank. The City also recently retained us to defend a lawsuit claiming a violation of CEQA and state housing laws entitled Friends of the Equestrian Bridge v. City of Burbank. In addition, Goldfarb & Lipman would now advise the City in connection with possible tenant protection programs.
BHC first became a Goldfarb & Lipman client in 2022. Goldfarb & Lipman has recently advised BHC on restructure of its transitional housing programs and on restructure of the Master Loan Agreement and we expect that work to continue. In addition, Goldfarb & Lipman would now advise BHC in connection with development of new affordable housing projects. We have not represented BHC regarding land use and entitlement matters.
II. Potential Conflict of Interest.
While we are unaware of any current conflict of interest created by the relationships described in Section I above in relation to the Restructure Proposal and Affordable Housing Project Assistance and Land Use Representation and Tenant Protection Representation, as attorneys, we are governed by specific rules relating to our representation of clients when potential conflicts of interest exist.
We must disclose certain information and obtain the informed written consents of each of you to represent BHC in connection with the Restructure Proposal and the Affordable Housing Project Assistance and to represent the City in connection with the Land Use Representation and Tenant Protection Representation as described in this letter , in accordance with Rules 1.1, 1.4, 1.6, 1.7, ATTACHMENT 1
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1.8.2., 1.9 and 1.10 of the Rules of Professional Conduct of the State Bar of California (the "CRPC").
Our representation of BHC in connection with the Restructure Proposal and Affordable Housing Project Assistance and of the City in connection with the Land Use Representation and Tenant Protection Representation could potentially create a conflict of inter est for Goldfarb & Lipman related to, among other matters, information that we have regarding the City that could be relevant to the Restructure Proposal and Affordable Housing Project Assistance, or information that we have regarding BHC that could be rel evant to our Land Use Representation or Tenant Protection Representation, but due to our duty of confidentiality and loyalty, we would be unable to disclose such information to BHC or the City. At this time, we do not believe that there is an actual conflict of interest for Goldfarb & Lipman, in that our past and future work for the City was and is unrelated to the Restructure Proposal and Affordable Housing Project Assistance, and our proposed work for BHC is unrelated to the Land Use Representation and Tenant Protection Representation, and we believe that we can competently represent BHC in the Restructure Proposal and Affordable Housing Project Assistance and the City in the Land Use Protection and Tenant Protection Representation and still maintain our independent judgment and duty of loyalty to each of you in unrelated matters. In addition, we do not believe that we have obtained an y confidential information from the City which is material to our representation of BHC in the Restructure Proposal and Affordable Housing Project Assistance or from BHC which is material to our representation of the City in the Land Use Representation and the Tenant Protection Representation.
However, if an actual conflict should arise related to the Restructure Proposal and Affordable Housing Project Assistance or the Land Use Representation and Tenant Protection Representation in which: (i) the interest of BHC is now adverse to the interest of the City, or the interest of the City is now adverse to the interest of BHC, that would affect our independent judgment and our duty of loyalty to each of you in the unrelated matters; (ii) the issue of dispute in the Restructure Proposal and Affordable Housing Project Assistance or Land Use Representation and Tenant Protection Representation is substantially related to the same issue in which we represent the City or BHC in other matters; or (iii) we have obtained any confidential information from the City that is material to our representation of BHC, or any confidential information from BHC that is material to our representation of the City, we would need to determine if we could continue to represent BHC in relation to the Restructure Proposal and Affordable Housing Project Assistance or to represent the City in relation to the Land Use Representation and Tenant Protection Representation. In reaching our decision, we would first need to determine if we could competently continue such representation, notwithstanding the adversity, and after such determination, we would further need to obtain the informed written consent of each of you.
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III. Informed Written Consent.
You should thoroughly review and consider the matters discussed in this letter and consider seeking independent counsel befo re providing your consent. If, after such review, each of you consents to Goldfarb & Lipman representing BHC and the City in the manner outlined above, please sign and return the attached consent form (i) acknowledging that you have been advised of Goldfarb & Lipman's past and proposed relationships with each of you; (ii) acknowledging that you have been advised to Rules 1.1, 1.4, 1.6, 1.7, 1.8.2., 1.9 and 1.10 and the potential conflict of interest associated with our representation of BHC regarding the Restructure Proposal and Affordable Housing Project Assistance and our representation of the City regarding the Land Use Representation and Tenant Protection Representation ; and (i ii) that you nevertheless consent to our representation of BHC in connection with the Restructure Proposal and Affordable Housing Project Assistance and to our representation of the City regarding the Land Use Representation and Tenant Protection Representation.
If you have any questions regarding this letter or our representation of each of you, please call us before signing and returning the enclosed copy of this letter.
Sincerely,
Barbara E. Kautz
Attorney Representing the City
Lynn Hutchins
Attorney Representing BHC
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CONSENT
Goldfarb & Lipman has explained to each of you : (i) Goldfarb & Lipman 's past and proposed relationships with each of you, and (ii) CRPC Rules 1.1, 1.4, 1.6, 1.7, 1.8.2., 1.9 and 1.10 and the potential conflict of interest in relation to Goldfarb & Lipman 's representation of BHC regarding the Restructure Proposal and Affordable Housing Project Assistance and representation of the City regarding the Land Use Representation and Tenant Protection Representation and the possible consequences of this conflict . Each of the undersigned nevertheless gives approval to Goldfarb & Lipman regarding the Restructure Proposal and Affordable Housing Project Assistance and Land Use Representation and Tenant Protection Representation as described in this letter.
We underst and that we have the right to seek independent counsel before signing this consent or at any future time.
Dated: _______________ CITY OF BURBANK
By: __________________________________
Joseph H. McDougall
City Attorney
Dated: ________________ BURBANK HOUSING CORPORATION
By: __________________________________
Sylvia Moreno
Executive Director
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