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12/17/2009 Waiver of Conflict . RECEIV'ED GUNSTER DEe 0 1 2009 MONROE COUNTY ATTORNEY ATTORNEYS AT LAW Writer's Direct Dial No.: 954.712.1478 Writer's E-Mail Address:lphillips@gunster.com November 30, 2009 VIA U.S. MAIL AND EMAIL Pedro Mercado, Esq. Assistant County Attorney Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, Florida 33040 Re: Waiver of conflict of interest arISIng from Gunster, Yoakley & Stewart P.A.'s ("Gunster") proposed legal representation of the Girl Scout Council of Tropical Florida, Inc. (the "Girl Scouts") Dear Pedro: Our Firm has been asked by the Girl Scouts to represent it in connection with environmental and land use issues related to its Camp Wesumkee and the neighboring Boy Scouts' Sawyer Camp. Both camps are located on West Summerland Key (also known as Scout Key) in Monroe County. Our representation of the Girl Scouts would involve providing legal counsel on land use and environmental matters related to proposed development on the camps (the "Proposed Representation"). During the course of this Proposed Representation, it may be necessary to represent the Girl Scouts before Monroe County on such land use and environmental issues. As you know, our Firm represented Monroe County in the Key West International Airport ("KWIA") permit challenge. While that legal work is now complete, our matter remains open with respect to certain pending transcript costs for the final hearing. Accordingly, the Florida Rules of Professional Conduct will only allow us to accept the Proposed Representation so long as we believe that our representation of the Girl Scouts will not adversely affect our ethical responsibilities to, and relationship with, any party, and if we obtain all parties' consent thereto. Specifically, Rule 4-1.7 of the Florida Rules of Professional Conduct states that a lawyer may not represent a client if the representation of that client will be "directly adverse" to the interests of another client unless the lawyer reasonably believes the representation will not adversely affect the lawyer's responsibilities to and relationship with the other client and each Las alas Centre I 450 East Las alas Blvd., Suite 1400 I Fort Lauderdale, FL 33301-4206 I 954.462.2000 I Fax: 954.523.1722 I www.gunster.com FORT LAUDERDALE. JACKSONVILLE. ~illA I. PALt'/l BEACH. STU.ART. TALLAHASSEE .VERO BEACH · "VEST PAL BEACH Pedro Mercado, Esq. November 30, 2009 Page 2 client consents after consultation. In addition, our agreement with Monroe County, dated August 20, 2008 (the "Agreement"), contemplated and addressed this scenario in Section 5 of the Agreement. Per the Agreement, our Firm may represent clients before Monroe County in unrelated matters upon obtaining Monroe County's consent. I have attached a copy of the Agreement to this letter for ease of reference. We have consulted with you regarding the potential conflict of interest that arises through our representation of the Girl Scouts. While we believe that the representation of the Girl Scouts is factually distinct and wholly separate from and unrelated to our representation of Monroe County on the KWIA matter, and therefore, would not be "directly adverse" to our representation of Monroe County, it is nonetheless necessary to obtain Monroe County's consent before we can accept the Proposed Representation. We will take every reasonable precaution that your confidences and those of the Girl Scouts will be carefully preserved and kept entirely separate from one another. We also believe our proposed representation of the Girl Scouts will not adversely affect our ethical responsibilities to, or relationship with, either Monroe County or the Girl Scouts. Should a dispute arise between Monroe County and the Girl Scouts with respect to the Proposed Representation, this Firm will not represent any party in regard to such matter, and both parties will be asked to obtain other legal counsel in connection with such dispute. We request that you sign this letter acknowledging that you have received it, agree with the understandings contained herein, and hereby provide your informed consent to the Proposed Representation as described above and discussed with you, and waive the potential conflict of interest. As we have discussed, you also acknowledge that all possible ramifications and prejudice to Monroe County and the Girl Scouts which may result in the consent are not and cannot be known at this time. Notwithstanding, the undersigned agree to accept the risk of giving their consent to allow Gunster to be engaged in the Proposed Representation of the Girl Scouts. Please do not hesitate to call me if you have any questions with regard to this letter or any other issue relating to this matter. Z 0 o )> ,~g~ S:J - c:::a 1;; Z CN :: N .. N " -rJ - r- ,.." o " C> ::0 ::0 fT1 c-) o ;0 o LEP/mh Enclosure ~~[2 .:;!C):t: "," ;-;)> -:"'1 G') r- ", [SIGNATURE PAGE TO FOLLOW] Gunster, Yoakley & Stewart, P.A. Attorneys at Law Pedro Mercado, Esq. November 30, 2009 Page 3 The undersigned, on behalf of Monroe County, Florida, and its respective affiliates, successors and assigns, hereby agrees to the representation of the Girl Scout Council of Tropical Florida, Inc. and its affiliates by Gunster, Yoakley & Stewart, P.A. on the terms outlined in the above letter and waives any potential conflict which may exist. By: Title: -' r/] Cl01 G7 / C \1\11, i r Vlil a... n ~ I · Dated: I ?- 1/1+'/ 0 9 FTL 368963.1 ' I CADO I / ATTORNEY 'I t I (J if 3: Cl ~;'~ '""--" I.l!..... ;~Tt :;] -<.: ::;: r- 2;6f2 -:! ("") :r: ~;-il:> ." C") r- tT1 Gunster, Yoakley & Stewart, P.A. Attorneys at Law N c:::t c::::I ~ o ~ " r- fT1 o ." o ::t.l ::0 ", c-') <::) ;:0 o ....... ::- :z a .. "l:- e,., DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DA TE: August 26, 2008 TO: Suzanne A. Hutton County Attorney REceIVED AUG 2 7 2008 FROM: Kathy M Peters Executive Assistant Pamela G. Hanc~~ Deputy Clerk U MONRoe COUNTY ATTORNEY A TTN: At the August 20, 2008, Board of County Commissioner's meeting, the Board granted approval and authorized execution of an Agreement between Monroe County and Gunster, Yoakley & Stewart, P .A. to assist the County with costs of litigation of the challenge by Protect Key West and the Florida Keys, Inc., d/b/a "Last Stand" for the permit approved by the South Florida Waster Management District to relocate and fill a pond at the west end of the Key West International Airport runway in order to create FAA's required Runway Safety Area (RSA). Enclosed are two copies of the above-mentioned for your handling. Should you have any questions please do not hesitate to contact ~his office. cc: Finance File f~ . · AGREEMENT BETWEEN MONROE COUNTY AND GUNSTER, YOAKLEY & STEWART,P.A. TInS AGREEMENT, made and entered into this :;~. tL day of {2a./ ~ 2008, by and between 1he BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, ("COUNTY"), a political subdivision of the State of Florida whose address is 1100 Simonton Street, Key West, Florida 33040, and GUNSTER, YOAKLEY, & STEWART, P.A ("ATIORNEY regarding the retention of ATIORNEY by COUNlY to provide legal advice and seIVices. NOW THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties agree as follows: 1. THE CLIENT The Client is the COUNTY, acting by and through it's duly elected and appointed officers and its employees. 2. THE A TIORNEY A TIORNEY is the prof~ional association named above and whose legally authorized signature appears at the bottom of this Agreement A TIORNEY is licensed to practice law in Florida. A TIORNEY has been retained specifically because ATIORNEY is understood by COUNTY to be able to handle this matter. If A TIORNEY practices with others who may also provide services to COUNTY, he or she understands that COUNTY expects that ATTORNEY will be responsible for managing the representation, assuring compliance of others with the tenns of this Agreement and ethical requirements, preparing and substantiating all bills, and communicating with COUNTY. A TIORNEY may not outsource this work without full written disclosure to, and prior written approval from, the COUNTY. 3. TERM OF AGREEMENT This Agreement and representation by ATIORNEY is effective upon execution by ATIORNEY and acceptance and approval by COUNTY in accordance with COUNTY'S policies, ordjnances, or governing statutes. The representation shall continue until terminated by either the COUNTY, or by the A TIORNEY in accordance with ethical requirements and/or the terms of this Agreement. 4. SCOPE OF THE WORK A TIORNEY shall provide legal services and advice to COUNTY regarding the administrative challenge, Protect Key West and the Florida Keys, Inc. d/b/a "Last Stand" vs. South Florida Water Management District and Monroe County Florida concerning the COUNTY's Environmental Resource Permit, SFWMD permit No. 44-00149..8 and application No. 070402-30 and related administrative hearings and all appeals. The Scppe of Work shall be limited to this specific engagement unless otherwise agreed by A TIORNEY and COUNTY in writing. 4.1 Professional ability to perfonn work.. appointment of contract manager A lTORNEY warrants that he or she is authorized by law to engage in the performance of the activities herein described, subject to the terms and conditions set forth in these contract documents. A ITORNEY FTL 346225.4 shall designate an individual attorney to be the contract manager for each matter and the contract manager shall at all times exercise independent, professional judgment and shall assume professional responsibility for the services to be provided. ATTORNEY warrants that he or she and the authorized time keepers are authorized by law and the Rules and Regulations of The Florida Bar to engage in the performance of the activities encompassed by this Agreement. If ATTORNEY is a member of a law firm, either as partner, shareholder, associate, or other relationship, A TIORNEY warrants that he or she is authorized to enter into this Agreement by the law firm. . 4.2 Management of time keepers ATTORNEY is responsible for managing the matter cost-effectively and competently, e.g., by insuring that additional time-keepers are competent, properly supervised, efficient, and in compliance with the terms of this Agreement as well as with all ethical obligations set forth in the Rules of Professional Responsibility of the Florida Bar. · 5. REVIEW OF ETIDCAL OBLIGATIONS AND POTENTIAL CONFLICTS OF INTEREST BEFORE INITIATING REPRESENTATION ATTORNEY has conducted a thorough investigation and determined that neither AITORNEY nor his or her firm has any ethical impediment, real or potential, including but not limited to conflicts of interest, to representing COUNlY. To the extent that any ethical impediment, real or potential, is discovered or ever arises, ATIORNEY shall immediately inform COUNlY in writing of the impediment (regardless of whether ATTORNEY believes be or she has taken all steps necessary to avoid the impediment and regardless of whether ATTORNEY believes that the impediment is insubstantial or questionable), make full disclosure of the situation to COUNlY, obtain COUNlY'S express, written consent to continue the representation of the other client, and take aU other reasonable steps to avoid or mitigate the impediment Notwithstanding the foregoin80 COUNlY understands and agrees that ATIORNEY may in the future represent clients before COUNIY in unrelated matters. COUNlY agrees to consider reasonable waivers of these conflicts in accordance with Rule 4-1.7 of the Rules of Professional Conduct of The Florida Bar, a copy of which is attached as Exhibit "A", as such Rule may apply to the particular matter. 6. PAYMENTS TO ATTORNEY ATTORNEY shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk on a schedule as set forth in the contract. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. 6.1 Attorney Fee (Hourly) ATTORNEY will be paid for his or her services based on the number of hours expended on behalf of COUNTY (rounded to the nearest tenth hour for each time entry), not to include time billable to or compensated by otper clients, multiplied by the ATIORNEy:tS hourly rate. The following minimum billin.g documentation and time-keeper requirements are a condition precedent to payment by th.e COUNlY. ITL 346225.4 2 6.2. Non-billable time AITORNEY will bill COUNTY only for time reasonably and necessarily incurred to render professional services' on COUNTY'S behalf in accordance with this Agreement. Time attributable to billing questions is not billable. Time expended by time-keepers who have not been approved by COUNTY is also not billable. 6.3. Hourly Rates.. and Changes to hourly rates Hourly rates for A TIORNEY and additional Timekeepers will be set at: Approved Time Keepers: Name: Marisa K. Bennett Christopher P. Benvenuto William L. Hyde Robert A. Malinoski Luna E. Phillips Suzan Prince Brian M. Seymour Hourlv Rate: $200.00 $300.00 $350.00 $275.00 $325.00 $1. 70.00 $425.00 Associate Associate Partner Associate Lead counsel for the firm/contract manager Paralegal Shareholder ATIORNEY will charge no more than the hourly rate quoted above throughout the duration of the matter, unless otherwise agreed in writing and approved by COUNTY in the same manner as Agreement. 6.4. Discounts to other Clients The rates set forth above are those current hourly rates charged to other clients of A TIORNEY . A ITORNEY does not have a special government rate that is applied to all governmental entities who may be a client of AITORNEY) but agrees that if A'ITORNEY creates a special government rate for tbe time keepers set forth herein or subsequently approved, that rate shall apply to COUNTY in this matter. 6.5. Time keepers As used in this Agreement, the term "time keeper" shall include A ITORNEY and other A ITORNEYS and individuals identified in paragraph 6.3 of this Agreement who will be providing services under this Agreement and who will bill the COUNTY for their services in accordance with this Agreement. 6.51. Duplication of effort Unless advance COUNTY approval is obtained, AITORNEY will not have more than one time-keeper bill for court appearances, attendance at depositions and meetings, including meetings with COUNTY representatives, and. internal conferences. However, with advance COUNTY approval, A TIORNEY may have more than one time-keeper present at the administrative hearing in this matter and each attorney and timekeeper shall be paid at their rate established in paragraph number 6.3. In the event that more than one person attends, only the time of the person with the lowest rate will be billable. AITORNEY is not permitted to use this matter to provide on the job training for a time-keeper, and bill for that time-keeper's services, without COUNTY'S advance approval. FTL 346225.4 3 6.5.2. Time-keeper changes Time-keepers approved by the COUNTY are listed in paragraph 6.3 of this Agreement, and may be amended from time to time, upon mutual agreement of the COUNTY and the ATTORNEY, to evidence the then-current circumstances. Additional time-keepers may not be added to the matter without advance written approval from COUNIY. In the event that additional time-keepers providing services which are to be billed to COUNTY are to be added to the staff: then their hourly rates shall be provided to COUNTY in advance, and, upon written approval by the COUNTY, their rates and billing practices shall comply with the requirements of this Agreement. COUNTY expects to receive discounts or other concessions so that any increases or changes in time-keepers will not result in unnecessary or unreasonable charges to COUNTY, e.g., for training, internal conferences, and management. 6.6. Existing work product To the extent the A ITORNEY makes use of existing work product, e.g., in the fonn of research previously perfonned for another client, then A lTORNEY shall bill only that time expended in using that work product for COUNlY. In other words, no premium, markup, or other adjustment shall be made to COUNTY bill for time spent on work already performed. 7. BILLING OF FEES AND EXPENSES AITORNEY shall comply with the following requirements as to billi.ng fees and expenses as a condition precedent to COUNTY'S obligation to pay each bill: 7.1. Monthly bills Unless otherwise agreed in a writing signed by the COUNTY, bills shall be issued monthly by AlTORNEY within fifteen (15) days after the close of each month. AITORNEY understands that COUNTY requires prompt bills in part to facilitate effective management of the representation and fees. 7.2. Bill. format AITORNEY shall provide detailed, itemized bills which shall, at a minimum: 7.2.1 Description Provide a general description of the matter, to include the name of the COUNTY department or constitutional officer, if not indicated in the title of the matter, for which legal services are being perfonned (e.g. Richard Roe v. Monroe County-BED Claim); a description of the work performed in enough detail so that each item is distinguishable from other listed items and sufficient to allow COUNTY to detennine the necessity for and reasonableness of the time expended, the services perfonned, the proiect or task each service relates to, the subject and purpose of.each service, and the names of others who were present or com.municated with in the course of perfonning the service. For example, simply the word "research" is not acceptable, more detail. about the type of research and what was determined by the research is necessary. FTL 34622S.4 4 7.2.2 Pe1lonne1 Clearly identify each timekeeper performing services in conjunction with each entry. Clearly identify all persons who are not full-time lawyers employed by the ATIORNEY'S firm (including pamlcgals, employees of AlTORNBY with their titles, subcontractors, indcpondent contractors, temporary employees, and outsourcing providers). PerscmneI who are not listed as additional timekeepers will not be paid unless approved in writing under the requirements oftbis Agreement. 7.2.4 Totals and By Task State the amouot of time eJqJended by each time-keeper broken down for each task. 7.2.5 SummalY of Rates In a. swmnary at the beginning or end of1he biI~ provide the current hourly rate for each time-keeper, the total time billed by each time-keeper in that bill, the product of the total time and hourly rate for each time-keeper) the total fees charg~ and reconciliation between the amount charged and any applicable estimated or budgeted amount., by 1ask. In addition, each monthly statem.cmt should show the aggregate billiDg for that matter from the commoncement of tho matter through the CUlTCDtly-billed month. · 7.3. E1C;pBllSes COUNTY will pay the actual. reasonablo cost of the following expense items if incurred in accordance with the guidelines below (a copy of the fonn used by the County is provided for your convenience as "Exhibit B") and promptly itemized in AtTORNEY'S monthly bin~ 7.3.1 Reimbursable ~enses -; Aotual cost for necessary IODg distance telephone calls) telecopying at $.25 per outgoing page, overnight or expedited delivery. couriers~ photocopying at $.15 per page, postage~ court fees, and other exponses approved in advance by COUNIY. In order to receive reimbursement Attorney must attach copy of invoice from overnight or expedited. delivery, couriers~ 10Dg distance carriers and indicating wbich calls are related to this agreement. All o\Wgcs shall be reasonably documented on invoices to demonstrate that the charge is related to this agreement. 7.3.1.1. ~edited or omergency services A'ITORNEY is oxpected to avoid using expedited or emergency services, such as express delivery services, couriers. telecopying, overtime, and so OD, DDless necessary because of unexpected developments or extremely short deadlines. COUNTY may refuse to pay for any suoh expenses when incurred routinely or because of A '!TORNEY'S Hure to manage the matter efficiently. FIL346225.2 5 7.3.1.2. Computerized resear~h ATTORNEY is expected to uso computerized research services cost-effectively to reduce time spont on research, for example, while closely-monitoring computerized research to insure that the charges are reasonable and necessaty. ATTORNEY is expected to pass through to COUNTY any discounts or other aaaugcmcnts that reduce the cost of computerized services.. An charges sbalI be reasoDably documented on invoices to demonstrate that the obarge is related to this agreement. t" 7,3~1,3. Photocopying ATTORNEY is encouraged to use outside copying services if this will reduce the cost of la.tge-volume copyiu& provided that these cxpCDSCS am efficient, cost-effective, and incurred and biDed in accordance with this Agreement. ATTORNEY is responsible for insuriog that aU copying complies with copyright obligations. All charges sbalI be documented on invoices to demonstrate that the charge is related to this agreement. 7.3.1.4. ~ripts Tnmscripts should not be ordered without prior approval from COUNTY. Transcripts should not be ordered on an expedited basis unless necessary and approved in advance by COUNTY. ATTORNEY should obtain digital electronic/computerized copies of transcripts when available at a. reasonable cost to avoid charging for time spent digesting or indexing transcripts, and to allow COUNTY to maintain a digital eleotroDidcomputcrized da1abase of aIl1ranscripts. 7.3.1.5 Travel ~onses Travel.expenses within the ATTORNEY'S local area, defined as a radius of SO miles from the timekeeper's office. will not be reimbursed and time in trausit is not billable. Travel expenses outside the load area may only be reimbursed iftbo travel was approved in advance by COUN1Y... ReimblmlabIc travel expenses, if approved in advance, aR tho cost of'transportation by the least expensive practicable means (e,g., coach class air travel), the cost of reasonable botel accommodatioDS, and the cost oftranSportatiOD while out of town (e.g.. by cab or rental oar, whichever seems reasonable, at the lowest available rate). Tavel expenses will be raimbursed in accordance with the applicable provisions of Florida Statute 112.321 for "approved travolersU and of the MODrOC County Code Article XXVI and shall be summarized on the Monroe County Txavel Form by ATTORNEY with an applicable receipts attached thereto fCSee Exhibit B~'. or 7.3.1.6 Tmvel Time Time spent in transtt outside Attorney's local area may be billed only if ATTORNEY or time..keeper is UDable to avoid trawliDg by using other foJ:ms of communication or it is determined by the COUDty that tnwe1 is in the COUJJty's boat interest. Travel by more than one tin\o-keepcr at the same time to 1he same dostinatiOD is not allowed without prior approval from COUNTY. In order to be reimbursed for airline tickets, the boanting pass shall be attached to the invoice. FTL34622S.2 6 Approved travel time during normal business hours, defined weekdays from .8:30 a.m. to 6:00 p.m., will be billed at the hourly rate listed for the timekeeper in paragraph 6.3 of this Agreement. Approved travel time outside of normal business hours will be billed at one-half the hourly rate listed for the timekeeper in paragraph 6.3 of this Agreement. 7.3.2. Non-reimbursable expenses The following expenses will in no event be reimbursable without prior written approval by County Attom~y and approval by the Board of County Commissioners: 7.3.2.1. Personal and Office Costs Meals for time-keepers not related to travel, overtime, word processing or computer charges, p~rsonal expenses, expenses that benefited other clients, expenses for books, costs of temporary employees, periodicals or other library materials, internal filing or other document handling charges, clerical expenses, stationery and other supply expenses, utilities, and any other expense that is either unreasonable or unnecessary. (The fact that A TIORNEY charges other clients or that other firms charge their clients for an expense does not make it reasonable or necessary under this Agreement.) 7.3.2.2. Experts.. consultants" support services" outsourced services. etc. A TIORNEY is not authorized to retain experts, additional counsel, consultants, support selVices, or the like, or to out source or delegate work outside ATIORNEY'S law fmn, without prior written approval by County Attorney and approval by the Board of County Commissioners. If agreed to A TIORNEY will be responsible for selecting and managing the services of others so that their services and expenses will be rendered in accordance with the terms of this Agreement, including terms applicable to A TIORNEY. ATIORNEY will manage others to obtain cost-effective services for COUNTY. Unless otherwise agreed in writing, ATIORNEY shall obtain a written retainer agreement, in a form which may be specified by COUNTY, from each service provider, with bills from each provider being sent to both A TIORNEY and COUNTY. 7.3.2.3 Temporary Staffing A TIORNEY will not bill COUNTY for the time and expenses of temporary employees, including so- called "Temps" or contract A TIORNEYS or other staff from outside companies, nor. "outsource" or delegate work, nor charge for summer associates, law clerks, or student clerks, (collectively "temporary staff" even if not temporarily employed) without full advance disclosure of the employee's temporary or short-term status to COUNTY, including disclosure of the actual amount paid or to be paid to the individual. Unless COUNTY expressly agrees in writing to paying additional amounts after full disclosure by ATTORNEY, ATTORNEY may not charge COUNTY more than the actual cost paid by ATIORNEY. 7.3.2.4. Expenses not passed through at actual cost COUNTY will not pay any markup for expenses. COUNTY will only reimburse the ATIORNEY for their actual approved out-of-pocket costs and expenses, whether incurred personally by an approved time- keeper or incurred by other approved personnel (such as experts, consultants, .support services personnel, or outsourced services personnel). FTL 346225.4 7 7.3.2.5. Overhead not charged to County COUNTY will not pay for any "expense)' items that are in fact part of A TIORNEY'S overhead, which should be included within ATIORNEY'S fee, the determination of which expenses fall into this category are strictly within the discretion oftbe COUNTY. 7.3.3. Advance allProval of expenses In addition to the items noted above, ATTORNEY shall obtain advance approval from COUNTY before incurring any expense in excess of $1,000.00 if ATTORNEY expects to be reimbursed for that expense. COUNTY may refuse to pay any expense for which advance approval was not obtained by ATTORNEY. 7.3.4. Copies of receipts for expenses ATTORNEY shall include copies of receipts for all expenses with the itemized monthly bill. COUNTY may refuse to pay any expense item for which documentation is not provided by ATTORNEY. 7.3.5. Expenses (and fees) aftertennination Upon termination of the representation, ATTORNEY shall promptly bill COUNTY for any remaining reimbursable expenses and fees. COUNTY may refuse to pay any fees or expenses not billed within 45 days of termination of the representation. ATTORNEY is also expected to cooperate promptly with all aspects of termination and, if applicable, transition to other counsel. .Payment for fees arid expenses is contingent upon prompt, full cooperation. 7.4. Bill and expense documentation ATTORNEY must maintain supporting documentation for invoices until at least one year after the termination of the representation. This documentation shall be made available by ATTORNEY to COUNTY (or COUNTYtS designated representative, including. an accountant, the County Clerk or County Clerk's representative, or legal bill auditor) upon COUNTY'S written request. ATTORNEY agrees to cooperate with any examination of this documentation and AITORNEY'S fees and expenses, e.g., by responding promptly and completely to any questions COUNTY or its designated representative may have. A ITORNEY shall notify COUNTY in writing at least 60 days in advance of destroying any such records and, in the event that COUNTY requests that they be preserved, shall preserve them at least one additional year or, at the option of the COUNTY, delivered to the COUNTY for storage by the COUNTY, with COUNTY responsible for paying the actual cost of storage. This documentation shall include, for example, original time records, expense receipts, and documentation supporting the amount charged by ATTORNEY for expense items generated by ATTORNEY or .bis or her firm. COUNTY reserves the right not to pay any fee or expense item for which sufficient documentation or expense item for which sufficien~ documentation is not available to determine whether the item was necessary and reasonable. FTL 346225.4 8 7.5 Entertainment ATTORNEY shall not be reimbursed for costs of entertainment, such as in room movies and alcoholic beverages. Furthermore, only meals for ATTORNEY and/or approved timekeeper shall be reimbursed in accordance with the provisions in this Agreement. 8. PAYMENT TERMS ATIO~Y'S request for payments and reimbursements may be made in either the ATTORN'EY'S name or the name of the ATIORNEY'S law fum, as appropriate. ATTORNEY bills complying with this Agreement are due and payable according to the Prompt Payment Act. If the bill materially fails to comply with the requirements of this Agreement, then it is not due and payable until AITORNEY remedies its deficiencies. 9. MAITERMANAGEMENT COUNTY will expect that all communications between AITORNEY, and additional timekeepers, and COUNTY will be reviewed by ATTORNEY and that AITORNEY will serve as the point of contact for this matter, including billing questions. The COUNTY contact for this Agreement shall be: Assistant County Attorney Pedro Mercado 1 I 11 12th Street, Suite 408 Key West, Florida 33040 (305) 292-3470 (office) (305)292-3516 (facsimile) Mercado-Pedro@monroecounty-fl.gov (email) 9.1. Case monitoring COUNTY will be advised promptly by ATTORNEY of all significant facts and developments in the matter so that COUNTY may manage the matter effectively and make informed decisions about strategy, tactics:J settlement, scheduling, costs, and other related matters.. COUNTY will promptly receive from A ITORNEY copies of all orders, opinions, pleadings, briefs, memoranda (internal and external), correspondence, and any other document material to the subject matter of this Agreement, such that the COUNTY will have a current, up-to-date, "mirror" copy of the COUNTY'S file maintained by ATTORNEY. For discovery materials or exhibits that are lengthy, AITORNEY should discuss them with COUNTY before providing a copy. Documents available in digital electronic/computerized form should be provided in that fonn in lieu of paper copies, if requested by County. Additionally, ATIORNEY may be required. to submit, on a monthly basis, a case status and progress report to be submitted to the Board of COUNTY Commissioners. The format of the report shall be in the form required by the COUNTY ATTORNEY. 9.2. Case control AITORNEY shall discuss all significant issues of strategy and tactics, including motions, discovery) pleadings, briefs, trial preparation, experts, and settlement, with COlJNTY before implementation. A ITORNEY is expected to exercise indepen.dent professional judgment. FTL 346225.4 9 9.3. AITORNEY cooperation ATIORNEY will cooperate with COUNTY or COUNTY'S representatives to promptly provide all infonnation COUNTY requests or needs about.the subject matter of this Agreement and AITORNEY'S bills and handling of the matter. 9.4. COUNTY cooperation A ITO~Y shall be lead counsel on the matter; however, A TIORNEY agrees that the lawers employed by the Monroe County Attorney's Office may enter an appearance as co-counsel in the matter.. A TIORNEY should consult with COUNTY about all opportunities for COUNTY to save money or make use of COUNTY'S expertise to assist in, e.g., responding to discovery, preparing for trial, locating experts, and the like. COUNTY may also have personnel and facilities available to reduce the expenses related to the subject matter of this Agreement. · 10. CONFIDENTIALITY AND PUBLIC RELATIONS ATIORNEY is not authorized to waive or release any privilege or other protection of infonnation - confidential, secret, or otherwise- obtained from or on behalf of COUNTY. ATIORNEY is to keep aU confidential, privileged, or secret infonnation confidential. This requirement is perpetual, Le., it will continue even after the termination of the relationship and this Agreement. 10.1 Prohibition against use of information This requirement is also intended to prohibit ATIORNEY from using information obtained from or on behalf of COUNTY, including work product prepared at COUNTY'S expense, for other client's of ATIORNEY or his or her fll1l1, without COUNlY'S advance written approval. 10.2 No use ofCoun1y for marketing purposes ATIORNEY is not authorized to identify COUNTY as a COUNTY, 'e.g., for purposes of marketing or advertising, without COUNTY'S prior approval. 11. OWNERSHIP OF ATIORNEY FILES AND WORK PRODUCT A TIORNEY understands that ail fIles and work product prepared by A ITORNEY or his or her frrm at the expense of COUNTY (or for which COUNTY is otherwise billed) is the property of COUNTY. Without COUNTY'S prior written approval, this work product may not be used by A TIORNEY or his or her finn nor disclosed by A TIORNEY or his or her firm to others, except in the normal comse of ATIORNEY'S representation of COUNTY in this matter. AITORNEY agrees that COUNTY owns all rights, including copyrights, to materials prepared by COUN1Y or by A TIORNEY on behalf of COUNTY. A ITO~Y shall notify COUNTY in writing at least 60 days in advance of destroying any such records and, in the event that COUNTY requests that they be preserved, shall preserve them at least one additional year (with COUNTY responsible for paying the actual cost of storage). A TIORNEY shall provide COUNTY with prompt access to (including the ability to make copies of) all A TIORNEY files and work product, regardless of whether the representation or matter is ongoing and whether A TIORNEY fees and expenses have been paid in full. FTL 346225.4 10 12. DISPUTE RESOLUTION A TIORNEY and COUNTY agree that if a dispute arises between them that neither shall be required to enter into any arbitration proceedings related to this Agreement 12.1. Disputes regarding Attorney fees or expenses ATIORNEY and COUNTY agree that all disputes regarding ATIORNEY'S fees or expenses are to be resolved pursuant to the procedures and practices for mediation by the Attorney Consumer Assistance Program of the Florida Bar. 12.2. Disputes regarding interpretation COUNTY and A TIORNEY agree that all disputes and disagreements between them regarding interpretation of the Agreement shall be attempted to be resolved by a meet and confer session between representatives of COUNTY and A TIORNEY. If the issue or issues are still not resolved to the satisfaction of both within thirty (30) days after the meet and confer session, then either shall have the right to terminate the Agreement upon ten (10) business days notice in writing to the other party. 12.3 Legal or Administrative procedures In the event any administrative or legal proceeding is instituted against either the COUNTY or ATTORNEY relating to tbe formation, execution, performance, or breach of this Agreement, the COUNTY and ATTORNEY each agree to participate, to the extent required by the other, in all proceedings, hearings, processes, meetings, and other acti.vities related to the substance of this Agreement; institution of any administrative or legal proceeding shall constitute immediate termination of this Agreement. ATTORNEY agrees to forward copies of all documents in his or her possession related to the matter, which is the subject of this Agreement to COUNTY at the time of filing any administrative or legal proceeding. 12.4 ATIORNEY'S Fees and Costs In the event any administrative proceeding or cause of action is initiated or defended by the COUNTY or ATTORNEY relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to an award of reasonable ATIORNEY'S fees, and court costs, as an award against the nOD- prevailing party, and shall include reasonable ATIORNEY'S fees, and court costs in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement or as may be required by a court of competen! jurisdiction shall be conducted in accordance with the Florida Rules of Civil Procedure and the usual and customary procedures required by the circuit court of Monroe County and shall take place in Monroe County.. .. .. FTL 346225.4 11 13. NOTICE REOUIREMENT Any notice required or permitted under this agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, retllrned receipt requested, to the following: FOR COUNTY County Administrator and 1100 Simonton Street . Key West, FL. 33040 County Attorney PO Box 1026 Key West, FL 33040 FOR ATTORNEY Luna E. Phillips and Gunster, Yoakley & Stewart, P .A. 450 East Las Olas Boulevard, Ste 1400 Fort Lauderdale, Florida 33301-4206 Brian M. Seymour Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive, 800.500, East Tower West Palm Beach, Florida 33401-6194 14. GOVERNING LAW AND VENUE This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. Venue for any legal action which may arise out of or under this agreement shall be in Monroe County) Florida. 15. ENTIRE AGREEMENT The entire agreement between the COUNTY and A TTORNEY with respect to the subject matter hereof is contained in this Agreement. This Agreement supersedes all prior oral and written proposals and communications between the COUNTY and ATTORNEY related to this Agreement. No provision of this Agreement shall be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by the party against whom the waiver, amendment or modification is claimed. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their pennitted successors and assigns. 16. FLORIDA GOVERNMENT-IN-THE-SUNSHlNE LAW ATTORNEY agrees that, unless specifically exempted or excepted by Florida law, the provisions of Section 286.011, Florida Statutes, generally require full and public discussion of matters to be voted upon by the Board of County Commissioners. ATTORNEY agrees to consult with the COUNlY AITORNEY'S office concerning the application of the Sunshine Law from time to time concerning specific circumstances that may arise during the term of this Agreement. 17. FLORIDA PUBLIC RECORDS LAW ATTORNEY agrees that, unless specifically exempted or excepted by Florida law or Rules and Regulations of The Florida Bar, the provisions of Chapter I 19, Florida Statutes, generally require public access to all records and documents which may be made or received under this Agreement. AITORNEY agrees to consult with the County Attorney's office concerning the application of the Public Records Law from time to time concerning specific circumstances that may arise during the term of this Agreement. FfL 346225.4 12 18. NO ASSIGNMENTS ATTORNEY shall not assign or subcontract its obligations under this agreement, except in writing and with the prior written approval of the Board of County Commissioners of Monroe County, which approval shall be subject to such conditions and provisions as the Board may deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or subcontractor shall comply with all of the provisions of this Agreement Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any additional obligation upon the Bo~d. 19. TERMlNATION Either oftbe parties hereto may terminate this contract without cause by giving the other party fifteen (15) business days written notice of its intention to do so. ' 19.1 Documents fOJWarded to COUNTY ATTORNEY agrees to forward to COUNTY along with Notice of Termination or upon receipt of Notice of Termination, depending upon which party terminates the Agreement, copies of all documents in his or her possession of any nature whatsoever related to the ATIORNEY'S representation of COUNTY or obtained due to ATTORNEY'S representation of COUNTY. 19.2 Restriction on Communications A TIORNEY agrees not to communicate with the public, including the press, about COUNTY or about this matter. 20. SOEVERABU,ITY If a term, covenant, condition or provision of this Agreement shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining tenns, covenants, conditions and provision of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and ATTORNEY agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 21. CAPTIONS The captions set forth herein are for convenience of reference only and shall not define, modify, or limit any of the te~s hereof. 22. LEGAL OBLIGATIONS AND RESPONSIDILITIES: NONO-DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES This Agreement is not intended to relieve, nor shall it be construed as relieving, either the COUNTY or A ITORNEY from any obligation or responsibility imposed upon each by law except to the extent of FTL 346225.4 13 actual and timely performance thereof by the other, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further this Agreement is not intended to authorize, nor shall it be construed as authorizing, the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapter 125, Florida Statutes. 23. RECORDS AITO~Y shall maintain all books, records, and documents directly pertinent to perfonnance u.nder this Agree.ment, including the documents referred to in this Agreement, in accordance with generally accepted accounting principles, consistently applied. Upon ten (10) business days written notice to the other, representatives of either the COUNTY or ATTORNEY shall have access, at all reasonable times, to all the other party's books, records, correspondence, instructions, receipts, vouchers and memoranda (excluding computer sofhvare) pertaining to.work under this Agreement for the purpose of conducting a complete independent fiscal audit A TIORNEY shall not be required to provide any materials which would be required to be kept confidential pursuant to the Rules and Regulations of the Florida Bar or case law. ATTORNEY shall retain all records required to be kept under this Agreement for a minimum of five years, and for at . least four years after the termination of this agreement A TIORNEY shall keep such records as are necessary to document the performance of its services as set forth in the agreement and expenses as incurred, and give access to these records at the request of the COUNTY, the State of Florida or authorized agents and representatives of said government bodies. It is the responsibility of A ITORNEY to maintain appropriate records to insure a proper accounting of all collections and remittances in this matt~r. A TIORNEY shall be responsible for repayment of any and all reasonable audit exceptions which are identified by the Auditor General for the State of Florida, the Clerk of Court for Monroe County, the Board of County Commissioners for Monroe County, or their agents and representatives. 24. PUBLIC ACCESS The COUNTY and A TIORNEY sban allow and permit reasonable access to and inspection of, all documents, papers, letters, or other materials subject to the Florida Public Records Law, as provided in Chapter 119, Florida Statutes, and made or received by the them, unless.specifically exempted by State Statute, Rules and Regulations of The Florida Bar, or case law. COUNTY shall have the right to cancel this agreement upon violation of this provision by ATTORNEY. 25. MONROE COUNTY CODE ETIDCS PROVISION ATIORNEY warrants that he or she has not employed, retained or otherwise had act on his behalf any former COUNTY officer or employee in violation of Section 2 of Ordinance No. 10-1990 or any COUNTY officer or employee in violation of Section 3 of Ordinance No. 10 1990. For breach or violation of this provision the COUNTY may, at its discretion, terminate this Agreement without liability and may also, at i~ discretion, deduct from the sums owed under the Agreement, or otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to tbe former or present COUNTY officer or employee. COUNTY employees and officers are required to comply with the standards of conduct delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business with one's agency, unauthorized compensation, and misuse of public position, conflicting employment or contractual relation~hip, and disclosure of certain information. FTL 346225.4 14 26. PUBLIC ENTIlY CRIME STATEMENT Florida law provides that person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on an agreement to provide any goods or services to a public entity, may not submit a bid on a agreement with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, sub contractor, or consultant under a agreement with aQY public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of thirty-six (36) months from the date of being placed on the convicted vendor list. A ITORNEY warrants the neither A ITORNEY nor any authorized time keeper has been named to the convicted vendor list. 27. ANTI-KICKBACK A ITORNEY warrants that no person has been employed or retained to solicit or secure this Agreement upon any contract or understanding for a commission, percentage, brokerage or contingent fee, and that no employee or officer of the COUNTY has any interest, fmancially or otherwise, in this Agreement, except as expressly stated herein. For breach or violation of this warranty, the COUNlY shall have the right to annul this agreement without liability or, in its discretion, to deduct any sums to be paid by COUNTY under this Agreem.ent, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 28. MODIFICATIONS AND AMENDMENTS This Agreement may not be modified in any way without the express, written consent of both parties. Any and all modifications and Amendments of the terms of this Agreement shall. be in writing and executed by the Board of County Commissioners for Monroe County and by A ITORNEY in the same manner as this Agreement. 29. INDEPENDENT CONTRACTOR At ail times and for all purposes hereunder, ATTORNEY is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this Agreement shaH be construed so as to find ATTORNEY or any of the authorized time keepers, to be the employees of the Board of County Commissioners of Monroe County, and they shall be entitled to none of the rights, privileges or benefits of employees of Monroe County. 30. COMPLIANCE WITH LAW In canying out AITORNEY'S oblig~tions under this agreemen~ AITORNEY shall abide by all statutes, ordinances, rules ~d regulations pertaining to or regulating the provisions of this Agreement, including those now in effect and hereafter adopted.. Any violation of said statutes, ordinances, rules or regulations shall constitute a material breach of this Agreement and shall entitle COUNTY to terminate this Agreement immediately upon delivery of written notice of termination to ATTORNEY. FTL 346225.4 15 31. LICENSING ATTORNEY warrants that ATTORNEY and additional timekeepers do presently have, shall have prior to commencement of work under this Agreement, and at all times during said work, all required licenses and permits whether federal, state, County or City. 32. NON-DISCRIMINA nON ATTORNEY agrees that he or she will not discriminate against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order.. ATTORNEY agrees to comply with all Federal and Florida statutes, and all local ordinan.ces, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (pL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 use ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 use s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 use ss. 6101-6107) which. prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (pL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 use S8. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title vm of the Civil Rights Act of 1968 (42 US~ s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 use s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Monroe County Code Chapter 13, Article VI, which prohi.bits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter ot: this Agreement. 33. NON-RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and ATTORNEY agree that neither the COUNTY nor A TTORNEY or any officer, agent, or employee of each shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the. purposes contemplated under this Agreement. 34. ATTESTATIONS A TTORNEY agrees to execute such documents as the COUNTY may reasonable require, including a Drug-Free Workplace Statement, and a Public Entity Crime Statement. FTL 346225.4 16 35. COUNTY AUT.fIORJTY This Agreement has been duly noticed at a legally held public meeting conducted in Monroe County, Florida. COUNTY'S performance and obligation to pay under this contract, is contingent upon annual appropriation by the Board of County Commissioners. 36. HOLD HARMLESS AND INSURANCE ATTORNEY certifies that it maintains a minimum professional liability coverage for ATTORNEY and additional timekeepers in the amount of $5 Million. ATTORNEY agrees to keep the SaIne amount of coverage or mo.re at all times and to provide proof of said coverage to COUNTY at COUNTY'S request at any time during the term of the Agreement. 37. NO PERSONAL LIABILITY No covenant or obligation contained in this Agreement shall be deemed to be a covenant or obligation of any member, officer, agent or employee of the Board of County Commissioners of Monroe County in his or her individual capacity and no member, officer, agent or employee of the Board of County Commissioners of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 38. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, .all of which taken together shall constitute one and the same instrument and. the COUNTY and ATTORNEY may execute this Agreement by signing any such counterpart. 39.. EXECUTION BY COUNTY ATTORNEY Due to litigation, court scheduling constraints and in order to allow ATTORNEY to begin representation in a timely manner this agreement may be executed by the County Attorney prior to fmal approval of the Board of County Commissioners; in the event that the agreement is not approved by the .Board of County Commissioners, ATTORNEY shall submit an invoice for the time and expenses incurred from the date of execution by the County Attorney until the Board of County Commissioners voted not to approve this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] FTL 346225.4 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and date fIrst written above. BY: Signature By: SeA. Hu on County Attorney for Monroe County, Florida Date: rv~1 Print Name Date: THE BOARD OF COUNTY COMMISSIONERS hereby ratify the foregoing Agreement .' ..:'. >.:~~~ee~ Monroe County and GUNSTER, YOAKLEY, & STEWART, P.A. . '. ..' ..... . ."1 .r" r '. .I'~ ,..,'. .;"',: ':'i\ T::" ~ '., ", Board of County Commissioners "":'\~~NY,i KOLHAGE. Clerk ::~4}~ G~ Date: AiYG"'~ OC~ff~8 Mario Dj.OK'aw,M6~or Date: AUb 201 (!JUJ l' 54 ~ ~D r t\..e, Print N e rJ Address: 111' 5 n ~u./l1:)/, Su~ 8.t)i:. Wes-l (c.tJ m (flOh J rL 31t/1JJ DATE: 'i>-I.R-D~ "g.,;,.. /J. ~~ Print Name - ~ ,"'.. ,....., t:::) c::::> .... -- CP w :I:':" c: G") f',) f::J' -0 -... ~ 0 CD DATE: 1,/(Q)f)f> " --" E,) C ..,... ., , . ~.~~:';~ :r'. ~ -.' r.:...... '::~ ~ : , ..- i . MONROE COUNTY ATToy'r~Y" ROVED AS TC\F ~: · ,) a NAT1LEENE V\}, CASSEL Date () FTL 346225.4 18 I EXHmlT "A" Copy of Rule 4-1.7 (a) Representing Adverse Interests. Except as provided in subdivision. (b), a lawyer shall not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and (4) each affected client gives informed consent, confarmed in writing or clearly stated on the record at a hearing. 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