STAFF REPORT
DATE: November 7, 2023
TO: Justin Hess, City Manager
FROM: Joseph H. McDougall, City Attorney
BY: Lyndsey Kramer, Administrative Analyst I
SUBJECT: Approval of Informed Consent and Waiver of Potential Conflict in Legal Representation of The Burbank Housing Corporation by Goldfarb & Lipman, and Authorization for City Attorney to Execute
RECOMMENDATION
Authorize the City Attorney, or their designee, to sign the consent (Attachment 1 ) to expand Goldfarb & Lipman’s representation of the Burbank Housing Corporation (BHC) regarding all aspects (other than land use and tenant protection issues) of the development or redevelopment of existing and new affordable housing projects in the City, and to expand representation of the City regarding separate matters.
BACKGROUND
Goldfarb & Lipman submitted the attached “Consents to Potential Conflict of Interest – City of Burbank and Burbank Housing Corporation” letter (Letter).
This Letter follows Rules 1.4 and 1.7 of the State Bar of California’s Rules of Professional Conduct, which impose an ethical duty upon Goldfarb & Lipman to inform the City if they intend to represent a client that may have interests that are adverse to the City.
Goldfarb & Lipman previously obtained the consent of BHC and the City via the attached conflict letter dated May 10 , 2022 to represent BHC in restructuring the Master Loan Agreement between the City and BHC and to advise BHC regarding the Restructure Proposal for its transitional housing units (Attachment 2). In addition, Goldfarb & Lipman also obtained consent to represent the City regarding land use laws related to housing and it represented the City in litigation involving state land use laws, in particular regarding Pickwick Investment LLC v. City of CITY ATTORNEY’S
OFFICE
Burbank. Through this updated Letter, Goldfarb & Lipman seeks consent to expand their representation of BHC and the City regarding separate matters.
DISCUSSION
Rule 1.7 permits attorneys to represent multiple clients with current or future adverse interests only after receiving informed writ ten consent of each client, provided the attorney: (1) reasonably believes that the attorney 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 attorney in the same litigation or other proceeding before a tribunal.
Goldfarb & Lipman formerly represented the City on fair housing issues related to group homes and assisted with review of a density bonus application. Goldfarb & Lipman has confirmed that they have not represented the City regarding the Master Loan Agreement, any loan agreements, the new BHC housing developments nor any BHC transitional housing issues . Goldfarb & Lipman represented the City providing advice regarding land use planning laws, especially those related to approval of housing development projects, and represented the City in the litigation of Pickwick Investment LLC v. City of Burbank. The City has also retained Goldfarb & Lipman to defend a lawsuit claiming a violation of state housing laws entitled Friends of the Equestrian Bridge v. City of Burbank.
Goldfarb & Lipman continues to advise BHC on the restructure of its transitional housing programs and Master Loan Agreement and would now advise BHC in connection with the development of new affordable housing projects. They have not represented BHC regarding land use and entitlement matters.
After reviewing Goldfarb & Lipman’s representations in the Letter, it is the position of the City Attorney’s office that their involvement with BHC in connection to the restructuring of the Master Loan Agreement , transitional housing programs, and related matters will not compromise or be compromised by Goldfarb & Lipman’s representation of the Cit y on separate matters. This judgement is founded on the fact that Goldfarb & Lipman’s previous work did not involve the Master Loan Agreement. Additionally, Goldfarb & Lipman has explicitly warranted that they will not disclose any confidential information to BHC , even if such information exists .
Furthermore, Goldfarb & Lipman’s representation of BHC does not entail any legal disputes with the City.
Although there is always a potential for a conflict of interest under the State Bar rules, it is unlikely based upon the work described in the Letter, and Goldfarb & Lipman has advised that they will seek further informed consent from the City if a future scenario arose that would compromise their independent judgment or loyalty to the City.
For the reasons stated above, it is the position of the City 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.
ENVIRONMENTAL REVIEW
This activity has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and, as such, is not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) 14 Cal. Code Regs § 15378.
FISCAL IMPACT
None.
CONCLUSION
Based on the Letter and the advice of the City Attorney’s Office, staff recommends that Council authorize the City Attorney , or their designee, 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 Conflict of Interest – City of Burbank and Burbank Housing Corporati on Letter dated October 30, 2023 Attachment 2 – Consents to Potential Conflict of Interest – City of Burbank and Burbank Housing Corporation Letter dated May 10, 2022