1 STAFF REPORT
DATE: July 30, 2024
TO: Justin Hess, City Manager
FROM: Joseph H. McDougall, City Attorney
BY: Lyndsey Kramer, Administrative Analyst II
SUBJECT: Approval of Informed Consent and Waiver o f Potential Conflict of Interest in Legal Representation by Burke, Williams & Sorensen, LLP, and Authorization for City Attorney to Execute
RECOMMENDATION
Authorize the City Attorney, or their designee, to sign the consent (Attachment 1 ) waiving any potential conflict with Burke, Williams & Sorensen, LLP (BWS) concurrently representing the Burbank -Glendale-Pasadena Regional Housing Trust (Trust) with general counsel advice and the preparation of grant agreements and other documents related to the financing of affordable housing activities in Burbank while representing the City of Burbank (City) on a variety of unrelated matters.
BACKGROUND
BWS submitted the attached “C onflicts of Interest Letter” (Letter). This Letter follows Rule 1.7 of the State Bar of California’s Rules of Professional Conduct, which imposes an ethical duty upon BWS to inform the City if they intend to represent a client that may have interests that are adverse to the City.
BWS currently represents the City in multiple litigation matters including Johnson v. City of Burbank , Moghaddam v. City of Burbank, Richardson v.
County of Los Angeles, Rohani v. City of Burbank, Whitehead v. City of Burbank, Barbarino v. City of Burbank, Giuliano v. Fernande z, Casa Greene, Inc. v. The State of California , The People of the State of California v. ZRP Burbank, LLC, Chandler Bikeway Extension right -of-way and real estate matters, and a variety of personnel investigations.
CITY ATTORNEY’S
OFFICE
2 DISCUSSION
Rule 1.7 permits attorneys to represent multiple clients with current or future adverse interests only after receiving informed written 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.
In addition to representing the City, BWS currently represents the Burbank-Glendale- Pasadena Regional Housing Trust (Trust). Per the attached Letter, in BWS’s previous work with regional housing trusts, all financial agreements were made between the trust and interested developers within the covered jurisdictions. However, due to the special provisions of Senate Bill 1177 creating the Trust and special legislation providing the initial funding for the Trust, the tri-cities (Burbank-Glendale-Pasadena) have the ability to seek funding directly from the Trust.
The City requested funding from the Trust and has been awarded a grant of $3,450,000 for the Burbank Homeless Solutions Center. The Trust administrative team requested that BWS begin drafting the required documentation for the grant, and negotiating with the grantee; the City of Burbank. Given the State funding for the Trust, there may be additional agreements the Trust may need to enter into with the City.
After reviewing BWS’s representations in the Letter, it is the position of the City Attorney’s Office that their representation of the Trust in connection to preparing the grant agreement and other potential agreements with the City will not compromise or be compromised by BWS’s representation of the Cit y on separate matters . This judgement is founded on the fact that BWS’s previous and concurrent work is unrelated to any Trust activities or documentation required for the grant. Additionally, BWS has explicitly warranted that they will not disclose any confidential information to the Trust, even if such information exists. Furthermore, BWS’s representation of the Trust 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 BWS has advised that should a future scenario arise that would compromise their independent judgment or loyalty to the City, BWS would not represent either the Trust or the City in any adverse proceedings and would work with the Trust administration to find separate counsel to advise them on such adverse matter.
For the reasons stated above, it is the position of the City Attorney’s O ffice that BWS’s representation of the Trust will not compromise the firm’s representation of the City and the City may provide the informed written consent as requested by BWS.
3 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 Burke, Williams & Sorens en, LLP related to their concurrent representation of the Burbank-Glendale-Pasadena Regional Housing Trust and the City, as outlined above.
ATTACHMENT
Attachment 1 – Conflict of Interest Letter Dated July 15, 2024