STAFF REPORT
DATE: October 29, 2024
TO: Justin Hess, City Manager
FROM: Joseph H. McDougall, City Attorney
BY: Ashlee Clark, Senior Assistant City Attorney
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 Los Angeles Metropolitan Transportation Authority (“Metro”) in defense of tort litigation brought against Metro as well as property acquisition work in connection with various Metro projects which are not located in the City o f Burbank while representing the City of Burbank (City) on a variety of unrelated matters.
BACKGROUND
BWS submitted the attached “Conflicts 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
Attachment 2
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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.
BWS currently acts as special counsel to the City to defend the City in the eminent domain lawsuit in the Los Angeles Superior Court for the taking of City property interests in Victory Place and associated improvements ( The People of the State of California (Caltrans) v. ZRP Burbank, LLC, et al., Case No. 22STCV37974 [hereafter, the “Eminent Domain Action”].)
In addition to representing the City, BWS currently represents the Los Angeles Metropolitan Transportation Authority in connection with the defense of tort litigation brought against Metro as well as property acquisition work in connection with various Metro projects. Per the attached Letter, none of the property acquisition work completed by BWS for Metro is located in the City of Burbank and it does not involve matters between the City and Metro, including the North Hollywood to Pasadena Transit Corridor Project (also known as “BRT”).
Metro is not a party to the Eminent Domain Action. However, it is the City’s understanding that the City property Caltrans’ lawsuit identifies for taking will ultimately be transferred to Metro. Metro recently indicated its interest in participating in negotiations between Caltrans and the City in the Eminent Domain Act. The negotiations are intended to assist in resolving the matter.
After reviewing BWS’s representations in the Letter, it is the position of the City Attorney’s O ffice that their representation of the City in connection to potential settlement negotiations in the Eminent Domain Action will not compromise or be compromised by BWS’s representation of Metro on separate matters . This judgment is founded on the fact that BWS’s previous and concurrent work for Metro and the City are unrelated and the parties’ positions in each are not adverse.
Additionally, BWS has explicitly warranted that they will not disclose any confidential information to Metro, even if such information exists . Furthermore, BWS’s representation of Metro 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 Metro or the City in any adverse proceedings and would work with Metro to find separate counsel to advise them on such adverse matter.
Attachment 2
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For the reasons stated above, it is the position of the City Attorney’s O ffice that BWS’s continued representation of the City in settlement negotiations involving Metro related to the Eminent Domain Action will not compromise the firm’s representation of the City and the City may provide the informed written consent as requested by BWS.
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 Los Angeles County Metropolitan Transportation Authority, as outlined above.
ATTACHMENT
Attachment 1 – Conflict of Interest Letter Dated October 14, 2024 Attachment 2
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4878-3064-8047 v2
Direct No.: 213.236.2709
Our File No.: 08475.0001
[email protected]
Los Angeles –Inland Empire –Marin County –Oakland –Orange County –Palm Desert –San Diego –San Francisco –Silicon Valley –Ventura County 501 West Broadway - Suite 1600
San Diego, California 92101-8474
voice 619.814.5800 - fax 619.814.6799
www.bwslaw.com
October 14, 2024
Sent via email to [email protected]
Joseph McDougall
City Attorney
City of Burbank
275 E. Olive Avenue
Burbank, CA 9 1502
Re: Conflict of Interest Waiver – Los Angeles Metropolitan Transportation Authority
Dear Mr. McDougall:
Thank you for asking Burke, Williams & Sorensen, LLP (“BWS”) and my partner, Alan Sozio, along with Kristen Steinke and Robert Chojnacki, to act as special counsel to the City of Burbank (“City”) to defend the eminent domain lawsuit in the Los Angeles Superior Court for the taking of City property interests in Victory Place and associated improvements (The People of the State of California (CalTrans) v. City of Burbank, et al., Case No. 22STCV37974 [hereafter, the “Eminent Domain Action”]).
As the City was made aware at the commencement of our representation of the City in the Eminent Domain Action, BWS, including Mr. Sozio, represents Los Angeles County Metropolitan Transportation Authority (“Metro”) in connection with the defense of tort litigation brought against Metro as well as property acquisition work in connection with various Metro projects (collectively, “Metro Matters”). None of this property acquisition work is located in the City of Burbank, nor does it involve matters between the City and Metro.1
Metro is not a party to the Eminent Domain Action referenced above, and City has been careful not to take actions that would prejudice Metro’s interests as we currently understand them to be; however, Metro recently indicated its interest in participating in negotiations between Caltrans and the City in the Eminent Domain Action. The negotiations are intended to assist in resolving the matter. 1 Specifically, BWS does not represent Metro in matters involving the North Hollywood to Pasadena Transit Corridor Project (also known as “BRT”).
Attachment 2
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Joseph McDougall
October 14, 2024
4878-3064-8047 v2
California Rules of Professional Conduct Rule 1.7 governs the conduct of members of the California State Bar regarding conflicts of interest. Rule 1.7 prohibits attorneys “without informed written consent” to represent a client:
a. “if the representation is directly adverse to another client in the same or a separate matter” or
b. “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, a former client or a third person, or by the lawyer’s own interests.”
In addition to the Eminent Domain Action, BWS currently represents the City regarding Whitehead v. City of Burbank, et al. and all consolidated matters, Barbarino v.
City of Burbank
, Giuliano v. City of Burbank , Casa Greene eviction regulation case, Chandler Bikeway Extension right-of-way and real estate matters, and various personnel investigations.
Metro’s request to involve itself in the negotiations regarding the Eminent Domain Action creates a possibility that the City’s and Metro’s interests may be directly adverse or actually are adverse both on pending and future projects unrelated to the Metro Matters. BWS’s continued representation of Metro on the Metro Matters unrelated to the Eminent Domain Action creates a significant risk that Burke’s representation of the City in the Eminent Domain Action could be materially limited by Burke’s responsibilities to or relationships with Metro, and vice versa.
Under Rule 1.7, representation is permitted if both clients provide informed written consent by executing a written conflict of interest waiver and: (1) BWS reasonably believes that it 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 Burke in the same litigation.
Here, BWS reasonably believes that (1) it will be able to provide competent and diligent representation to the City and Metro; (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 Burke in the same litigation.
Accordingly, if the City and Metro execute written waivers, the representation is permissible.
Attachment 2
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Joseph McDougall
October 14, 2024
4878-3064-8047 v2
However, if an actual conflict should arise related to the Eminent Domain Action in which: (i) the interest of Metro becomes adverse to the interest of the City, or the interest of the City becomes adverse to the interest of Metro in a manner that would affect our independent judgment and our duty of loyalty to each of you in any unrelated matter; (ii) there is a dispute regarding the Metro Matters and Metro Projects; or (iii) we have obtained any confidential information from the City that is material to our representation of Metro, and any confidential information from Metro that is material to our representation of the City, we would not represent Metro in any adverse proceeding and would instead work with Metro to find separate counsel to advise them on such adverse matter.
With that understanding, the City and Metro thus may execute written conflict waivers pursuant to Rule 1.7. You may waive the conflicts of interest arising from BWS’s representation of Metro in the Metro Matters and the City in the Eminent Domain Action by signing this letter and returning it to me. At this time, we seek a waiver involving BWS’s handling of the Eminent Domain Action (and other City litigation and matters not involving Metro), and BWS’s handling of the unrelated Metro Projects (both current and prospective).
In connection with the above, the City should be aware that information relating to our representation of any and all clients is protected as required by California Business and Professions Code Section 6068(e).
Finally, we have requested that Metro execute a similar waiver, and this waiver will be conditional upon them doing so.
If you have any questions or wish to discuss the contents of this letter further, please contact me or Alan. We greatly value the opportunity to continue to represent the City.
Attachment 2
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Joseph McDougall
October 14, 2024
4878-3064-8047 v2
Sincerely,
BURKE, WILLIAMS & SORENSEN, LLP
Charles E. Slyngstad
General Counsel
cc: Alan Sozio ([email protected])
The undersigned on behalf of the City of Burbank hereby waives all conflicts arising from the representation by BWS of the City of Burbank in the Eminent Domain Action described in this letter (as well as other City litigation not involving Metro) and the representation by BWS of Metro in unrelated Metro Matters.
City of Burbank
By: _____________________________
Joseph McDougall, City Attorney
Date: ___________________________
Attachment 2
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