Item R7BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: November 17, 2015 Department: County Attorney
Bulk Item: Yes X No Staff Contact/Phone #: Chris Ambrosio X3477
AGENDA ITEM WORDING: Approval of and authorization for the County Attorney to execute the
conflict waiver letter dated October 26, 2015, authorizing Ira Libanoff, Esq., to represent the County in
two lawsuits in which Berkley Regional Insurance Company ("Berkley") is an adversarial party to the
County.
ITEM BACKGROUND: The County's outside construction law counsel Ira Libanoff, Esq., is the
County's counsel in the cases styled as Monroe County v. Construct Group Corp. and Berkley, Case
No. 15-CA-000844-A001 KW, and Construct Group Corp. v. Monroe County, Case No. 15-CA-
000563-P. In those actions, Berkley is the surety that issued the payment and performance bond to
Construct Group Corp. (CGC) and, along with CGC, Berkley is an adversarial party to Monroe County.
Libanoff and his law firm represent Berkley in the case styled as Hernandez Construction, LLC v.
Berkley, Case No. 15-008273 CA 01, pending in the Eleventh Judicial Circuit in and for Miami -Dade
County, Florida. The Hernandez matter does not involve the County or any County interest. Mr.
Libanoff's client in the Hernandez matter is the indemnitor on the bond issued by Berkley to
Hernandez Construction. Berkley then tendered the defense of the claim to their client (the
indemnitors), who then retained Mr. Libanoff to represent them since they have the duty to indemnify,
defend and hold Berkley harmless from the claim by Hernandez Construction. Technically for
litigation, Mr. Libanoff represent/defend Berkley, but they actually represent the indemnitors.
Under the Rules Regulating the Florida Bar, Rules of Professional Conduct, both the County and
Berkley must consent and waive any conflict of interest in order for Mr. Libanoff to represent them
simultaneously as being adversarial parties to each other, but in separate matters. Unless the County
and Berkley provide their informed written consent, Libanoff will be prohibited from representing the
County in the lawsuits involving the County and Berkley. Berkley has agreed to waive any conflict in
regard to Mr. Libanoff s representation of Berkley and also Mr. Libanoff s representation of Monroe
County in regard to its lawsuit against Berkley as part of the CGC lawsuits.
At this time, there is no reason to believe that Mr. Libanoff cannot competently and diligently represent
the County in the circumstances and matters discussed above. There is no foreseeable risk to the
County in having Mr. Libanoff represent the County in an adverse position and in conflict with Berkley
in the CGC lawsuits.
PREVIOUS RELEVANT BOCC ACTION: None.
CONTRACT/AGREEMENT CHANGES: NSA.
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: NIA INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: NIA SOURCE OF FUNDS:
REVENUE PRODUCING: Yes AMOUNT PER MONTH Year
APPROVED BY: County At OMB/Purchasing Risk Management _
DOCUMENTATION: Included X
DISPOSITION:
Revised 6115
Not Required _
AGENDA ITEM #
r
County of Monroef
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Natileene W. Cassel, Assistant County Attorney**
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Harrows, Assistant County Attorney
Derek V. Howard, Assistant County Attorney**
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City; County & Local Govt. Law
October 26, 2015
Ira Libanoff, Esquire
Ferencik Libanoff Brandt Bustamante and Goldstein, P.A.
150 S. Pine Island Road, Suite 400
Plantation, Florida 33324
BOARD OF COUNTY COMMISSIONERS
Mayor Danny L. Kolhage, District I
Mayor Pro Tern Heather Carruthers, District 3
George Neugent, District 2
David Rice, District 4
Sylvia Je Murphy, District 5
Office of the County Attorney
1 I l 112'h Street, Suite 408
Key West, FL 33040
(305) 292-3470 Phone
(305) 292-3516 — Fax
Re: Waiver of Conflict of Interest arising out of representation of Berkley Regional Insurance Company
and Monroe County.
Dear Mr. Libanoff.
As we discussed, Berkley Regional Insurance Company (Berkley) is the surety that issued the
payment and performance bond to Construct Group Corp. and is an adversarial party to Monroe County in
the cases styled as Monroe County v. Construct Group Corp. and Berkley, Case No. 15-CA-000844-
A001 KW, and Construct Group Corp. v. Monroe County, Case No. 15-CA-000563-P, both in which you
and your firm Ferencik Libanoff Brandt Bustamante and Goldstein, P.A. ("FLBBG") represent Monroe
County.
As you explained, you and FLBBG represent Berkley in the case styled as Hernandez Construction,
LLC v. Berkley, Case No. 15-008273 CA 01, pending in the Eleventh Judicial Circuit in and for Miami -
Dade County, Florida. Your client in the Hernandez matter is the indemnitor on the bond issued by Berkley
to Hernandez Construction and Berkley then tendered the defense of the claim to your client (the
indemnitors), who then retained you to represent them since they have the duty to indemnify, defend and
hold Berkley harmless from the claim by Hernandez Construction. Thus, as you further explained while
technically you represent/defend Berkley, you are actually representing the indemnitors.
You have advised me that Berkley has agreed to waive any conflict in regard to your representation
of Berkley and also your representation of Monroe County in regard to its lawsuit against Berkley as part of
the Construct Construction Corp. lawsuits. Pursuant to the Rules of the Florida Bar, both parties involved
in any conflict situation must agree to waive the conflict.
Pursuant to the above, and in accordance with our discussions, this letter shall confirm that Monroe
County, has agreed to waive any conflict of interest that may exist in regard to either you or FLBBG
representing Monroe County in the case styled as Monroe County v. Construct Group Corp. and Berkley,
Case No. 15-CA-000844-A001 KW, or the case styled as Construct Group Corp. v. Monroe County, Case
Ira Libanoff, Esquire
October 26, 2015
Page 2
No. 15-CA-000563-P both pending in the Sixteenth Judicial Circuit in and for Monroe County, Florida, and
you or FLBBG representing Berkley in the matter styled Hernandez Construction, LLC v. Berkley, Case
No. 2015-0082 3 CA 01, pending in the Eleventh Judicial Circuit in and for Miami -Dade County, Florida.
This waiver of conflict shall cover any and all claims and is provided pursuant to the applicable
Rules Regulating the Florida Bar, Rules of Professional Conduct governing and covering conflicts of
interest. This waiver of conflict of interest is retroactive to the date of filing of the all of the lawsuits
referred to in the preceding paragraphs. Please execute this waiver and provide a copy of the fully executed
copy to me.
Should you have any questions or if there is anything additional we need to discuss, please contact
me.
The undersigned is authorized to execute this waiver of conflict of interest on behalf of Monroe
County, Florida and hereby agrees to such waiver.
Sincerely,
Robert B. Shillinger, Esquire, County Attorney
Ira Libanoff, Esquire
Ferencik Libanoff Brandt Bustamante and Goldstein, P.A.
150 S. Pine Island Road, Suite 400
Plantation, Florida 33324
West's Florida Statutes Annotated
RWesRegulating the FloridaBar(Refs & Annos)
Chapter 4. Rules of Professional Conduct (Refs & Annos)
4-1. Client -Lawyer Relationship
West's F.S.A. Bar Rule 4-1.7
Rule 4-1.7. Conflict of Interest, Current Clients
Currentness
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer must not represent a client if
(1) the representation of I client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of I or more clients will be materially limited by the lawyees responsibilities
to another client, a Former client or a third person or by a personal interest of the lawyer.
(b) Informed Consent. 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, confirmed in writing or clearly stated on the record at a hearing.
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation must
include an explanation of the implications of the common representation and the advantages and risks involved.
(d) Lawyers Related by Blood, Adoption, or Marriage. A lawyer related by blood, adoption, or marriage to another lawyer
as parent, child, sibling, or spouse must not represent a client in a representation directly adverse to a person who the lawyer
knows is represented by the other lawyer except with the client's informed consent, confirmed in writing or clearly stated on
the record at a hearing.
(e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the insurer, a lawyer
has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and
n r d_o .,� i �.�'.�t�_ �.P � s3�o# i t .�.' � �.=t �. �. 1; KS
Rule 4-1.7. Conflict of Interest; Current Clients, FL 5T BAR Rule 4-1.7
to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida
Bar related to conflicts of interest apply to the representation as they would in any other situation.
Credits
Amended July 23, 1992, effective ,fan. 1, 1993 (605 So.2d 252); Jan. 23, 2003, effective July I, 2003 (838 So.2d 1140); March
23, 2006, effective May 22, 2006 (933 So.2d 417); May 29, 2014, effective June I, 2014 (140 So.3d 541).
Editors' Notes
COMMENT
Loyalty to a client
Loyalty and independent judgment are essential elements in the lawyers relationship to a client. Conflicts of interest
can arise from the lawyers responsibilities to another client, a former client or a third person, or from the lawyer's
own interests. For specific rules regarding certain conflicts of interest, see rule 4--1.8. For former client conflicts
of interest, see rule 4-I.9. For conflicts of interest involving prospective clients, see rule 4-1.18. For definitions of
"informed consent" and "confirmed in writing," see terminology.
An impermissible conflict of interest may exist before representation is undertaken, in which event the representation
should be declined. If such a conflict arises after representation has been undertaken, the lawyer should withdraw
from the representation. See rule 4-1.16. Where more than 1 client is involved and the lawyer withdraws because
a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined
by rule 4-1.9. As to whether a client -lawyer relationship exists or, having once been established, is continuing, see
comment to rule 4-1.3 and scope.
As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client's or
another client's interests without the affected client's consent. Subdivision (a)(1) expresses that general rule. Thus, a
lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is
wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are
only generally adverse, such as competing economic enterprises, does not require consent of the respective clients.
Subdivision (a)(1) applies only when the representation of l client would be directly adverse to the other and where
the lawyer's responsibilities of loyalty and confidentiality of the other client might be compromised.
Loyalty to a client is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course
of action for the client because of the lawyer's other responsibilities or interests. The conflict in effect forecloses
alternatives that would otherwise be available to the client. Subdivision (a)(2) addresses such situations. A possible
conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will
eventuate and, if it does, whether it will materially interfere with the lawyers independent professional judgment
in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
Consideration should be given to whether the client wishes to accommodate the other interest involved.
Consultation and consent
A client may consent to representation notwithstanding a conflict. However, as indicated in subdivision (a)(1) with
respect to representation directly adverse to a client and subdivision (a)(2) with respect to material limitations
on representation of a client, when a disinterested lawyer would conclude that the client should not agree to the
representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the client's consent. When more than 1 client is involved, the question of conflict must