Item M10 BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 20, 2014 Division: County Attorney
Bulk Item: Yes XX No Staff Contact Person: Bob Shillinger,292-3470
AGENDA ITEM WORDING: Authorization for County Attorney to execute conflict waiver letter
with respect to Adele Virginia Stones' representation of Maria Christina Ruiz, regarding a request for
reduction of the amount of the County's code compliance lien against Ms. Ruiz in code case
CE 11040080.
ITEM BACKGROUND: Ms. Stones currently represents Maria Christine Ruiz in regard to the
County's outstanding lien which resulted from code compliance case CE11040080. Ms. Ruiz, through
Ms. Stones, will be asking the Board to reduce her code fines at the September BOCC meeting. Ms.
Stones also has a contract with Monroe County to perform legal services for the County on certain
matters unrelated to her representation of Ms. Ruiz. This is one of Ms. Stones' last private clients with a
matter adverse to the County.
The Florida Bar's Rules of Professional Conduct prohibit an attorney from representing clients with
adverse interests but allow a client to waive any conflict of interest that might arise from the dual
representation if both clients consent to that waiver in writing. As set forth in the conflict waiver letter,
this waiver would only apply to this transaction and would not serve as a blanket waiver for future
matters.
The relevant sections of the Rules of Professional Conduct are: 4-1.7, 4-1.9, and 4-1.10. Section 2-
430(a)(2) of the County Code also requires that the County Commission approve a waiver should a
contract attorney represent a client with an adverse interest to the County in a matter. The relevant rules
and ordinance are attached along with the proposed conflict waiver letter.
PREVIOUS RELEVANT BOCC ACTION:N/A �
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: N/A INDIRECT COST: N/A BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:N/A
COST TO COUNTY: N/A SOURCE OF FUNDS:
REVENUE PRODUCING: Yes_ No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing— Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM#
WAIVER OF CONFLICT
The undersigned parties hereby consent to Adele Virginia Stones' presentation of Maria
Christina Ruiz's request to reduce the fines and costs imposed in code compliance case
CE11040080 before the Board of County Commissioners of Monroe County, Florida. Ms.
Stones' appearance on this matter is anticipated to occur on September 17, 2014.
By execution of this instrument,the undersigned parties hereby waive any conflicts of
interest that might arise under the Florida Rules of Professional Conduct and/or the Monroe
County Code by virtue of Ms.Stones' representation of Ms. Ruiz in CE11040080 and Ms.Stones'
representation of Monroe County in other matters.
Christina Ruiz
Date:
On behalf of the
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY,FLORIDA
BY:
Robert B. Shillinger,County Attorney
Date:
1
RULES OF PROFESSIONAL CONDUCT Rule 4-1.7
ent and with those ments should be sought by the lawyer to the fullest (b) Notwithstanding the existence of a conflict of
it,the lawyer's own extent practicable. interest under subdivision (a), a lawyer may represent
ad factors that may If the lawyer is charged with wrongdoing in a client if-
�. Where practical which the client's conduct is implicated,the rule of
-uade the client to confidentiality should not prevent the lawyer from will
the lawyer reasonably believes that the lawyer
case, a disclosure defending against the charge. Such a charge can will be able to provide competent and diligent repre-
iould be no greater arise in a civil, criminal,or professional disciplinary sentation to each affected client;
ieves necessary to proceeding and can be based on a wrong allegedly (2) the representation is not prohibited by law;
committed by the lawyer against the client or on a
wrong alleged by a third person; for example, a (3) the representation does not involve the assertion
used by the client person claiming to have been defrauded by the of a position adverse to another client when the law-
used of criminal or lawyer and client acting together. A lawyer enti- yer represents both clients in the same proceeding
must withdraw, as tled to a fee is permitted by subdivision(c)to prove before a tribunal; and
the services rendered in an action to collect it. This (4) each affected client gives informed consent,con-
required to refrain aspect of the rule expresses the principle that the funned in writing or clearly stated on the record at a
:lient's confidences, beneficiary of a fiduciary relationship may not ex- hearing.
ule 4-1.6. Neither ploit it to the detriment of the fiduciary. As stated
Wile 4-1.16(d) pre- above, the lawyer must make every effort practica- (c) Explanation to Clients. When representation
)lice of the fact of ble to avoid unnecessary disclosure of information of multiple clients in a single matter is undertaken,
r also withdraw or relating to a representation, to limit disclosure to the consultation shall include explanation of the imph-
affirmation,or the those having the need to know it, and to obtain cations of the common representation and the advan-
protective orders or make other arrangements mini- tages and risks involved.
ization, the lawyer mizing the risk of disclosure. (d) Lawyers Related by Blood or Marriage. A
Plated conduct will Disclosures otherwise required or authorized la lawyer related R another
ganization. Where wy lawyer as parent, child,
onnection with the The attorney-client privilege is differently defined sibling, or spouse shall not represent a client in a
y within the organ- in various jurisdictions. If a lawyer is called as a representation directly adverse to a person who the
(b). witness to ,give testimony concerning a client, ab- lawyer knows is represented by the other lawyer
nduct sent waiver by the client,rule 4-1.6(a)requires the except upon consent by the client after consultation
lawyer to invoke the privilege when it is applicable.
rations do not pre- The lawyer must comply with the final orders of a regarding the relationship.
nfidential legal ad- court or other tribunal of competent jurisdiction (e) Representation of Insureds. Upon undertak-
il responsibility to requiring the lawyer to give information about the ing the representation of an insured client at the
ost situations, dis- client. expense of the insurer, a lawyer has a duty to ascer-
uch advice will be tain whether the lawyer will be re r
,er to carry out the The Rules of Professional Conduct in various R'J' p esenting both the
disclosure is not circumstances permit or require a lawyer to disclose insurer and the insured as clients, or only the insured,
(c)(5)permits such information relating to the representation. See and to inform both the insured and the insurer re-
:ance of a lawyer's rules 4-2.3, 44.3, and ".1. In addition to these garding the scope of the representation. All other
3fessional Conduct. provisions, a lawyer may be obligated or permitted Rules Regulating The Florida Bar related to conflicts
wary charge alleges by other provisions of law to give information about of interest apply to the representation as they would
!lient's conduct or a client. Whether another provision of law super- in any other situation.
involving represen- sedes a 4-1.6 is a matter of interpretation beyond Amended July 23,1992,effective Jan.1,1993(605 So.2d 252);
the scope nay respond to the of these rules, but a presumption should
lieves necessary to exist against such a supersession. Jan. 0 20fe effective July 0 293 (838 417)1140); March
23,2006,effective May 22,2006(933 Sold 41?).
s true with respect Former client
r representation of The dutyof confidentialitycontinues after the Comment
right p respond client-lawyer relationship has terminated. See rule Loyalty to a client
ich complicity has w'y P
ss not require the 4-1.9 for the prohibition against using such informs- Loyalty and independent judgment are essential
ent of an action or lion to the disadvantage of the former client. elements in the lawyer's relationship to a client.
iplicity,so that the Conflicts of interest can arise from the lawyer's
-esponding directly Rule 4-1.7. Conflict of Interest; Current Clients responsibilities to another client,a former client or
such an assertion. a third person, or from the lawyer's own interests.
applies where a (a) Representing Adverse Interests. Except as For specific rules regarding certain conflicts of in-
Where practica- provided in subdivision (b), a lawyer shall not repre- terest,see rule 4-1.8. For former client conflicts of
lawyer's ability to sent a client if: interest, see rule 4-1.9. For conflicts of interest
should advise the involving prospective clients, see rule 4-1.18. For
in and request that (1) the representation of 1 client will be directly definitions of"informed consent"and"confirmed in
y. In any event, adverse to another client; or writing,"see terminology.
r than the lawyer (2) there is a substantial risk that the representa- An impermissible conflict of interest may exist
to vindicate inno tion of 1 or more clients will be materially limited b before representation is undertaken,in which event
made in a manner y y the representation should be declined. If such a
Son to the tribunal the lawyer's responsibilities to another client,a former conflict arises after representation has been under-
i to know it, and client or a third person or by a personal interest of taken, the lawyer should withdraw from the repre-
ar other arrange- the lawyer. sentation. See rule 4-1.16. Where more than 1
1967
Rule 4-1.8 RULES REGULATING THE FLORIDA BAR
set forth in rule 4--1.5 and the exception for certain the lawyer to obtain the insured client's signature in
advances of the costs of litigation set fort 'ga h m subdi- all instances.
vision(e). Establishment of the statement and the duty to
This rule is not intended to apply to customary provide it to an insured in tort cases involving
qualification and limitations in legal opinions and personal injury or property damage should not be
memoranda. construed as lessening the duty of the lawyer to
Representation of insureds
inform clients of their rights in other circumstances.
When other types of insurance are involved, when
As with any representation of a client when an- there are other third-party payors of fees,or when
other person or client is paying for the representa- multiple clients are represented, similar needs for
tion, the representation of an insured client at the fully informing clients exist, as recognized in rules
request of the insurer creates a special need for the 4-1.7(c)and 4-1.8(f).
lawyer to be cognizant of the potential for ethical Imputation of prohibitions
risks. The nature of the relationship between a Under subdivision(k),a prohibition on conduct by
lawyer and a client can lead to the insured or the an individual lawyer in subdivisions (a) through (i)
insurer having expectations inconsistent with the also applies to all lawyers associated in a firm with
a duty of the lawyer to maintain confidences, avoid the personally prohibited lawyer. For example, 1
�f conflicts of interest, and otherwise comply with lawyer in a firm may not enter into a business
professional standards. When a lawyer undertakes transaction with a client of another member of the
the representation of an insured client at the ex-
firm without complying with subdivision(a), even if pense of the insurer, the lawyer should ascertain
b. sce the first lawyer is not personally involved in the
whether the lawyer will be representing both the representation of the client.
insured and the insurer,or only the insured. Com-
munication with both the insured and the insurer
promotes their mutual understanding of the role of Rule 4-1.9. Conflict of Interest; Farmer Client
the lawyer in the particular representation. The A lawyer who has formerly represented a client in a
Statement of Insured Client's Rights has been de- matter shall not thereafter:
veloped to facilitate the lawyer's performance of (a) represent another person in the same or a
�f ethical responsibilities. The highly variable nature of insurance and the responsiveness of the insur- substantially related matter in which that person,s
once Indust m developing newt types of coverages, interests are materially adverse to the interests of the
p g former client unless the former client gives informed
o; for risks arising in the dynamic American economy
render it impractical to establish a statement of consent;
Jr rights applicable to all forms of insurance. The (b) use information relating to the representation
Jy ` Statement of Insured Client's Rights is intended to to the disadvantage of the former client except as
apply to personal injury and property damage tort these rules would permit or require with respect to a
1; cases. It is not intended to apply to workers'compensation cases. Even in that relatively narrow client or when the information has become generally
yF�
i` area of insurance coverage, there is variability known; or
1N
among policies. For that reason, the statement is (c) reveal infonnation relating to the representa-
necessarily broad. It is the responsibility of the tion except as these rules would permit or require
lawyer to explain the statement to the insured., In with respect to a client.
particular cases, the lawyer may need to provide Amended July 23,1992,effective Jan.1,1993(605 So.2d 25..);
additional information to the insured.
April 25,2002(820 So.2d 210); March 23,2006,effective May
r Because the purpose of the statement is to assist 22,2006(933 So.2d 417); Nov.19.2009,effective Feb.1,2010
laypersons in understanding their basic rights as (24 So.3d 63).
clients, it is necessarily abbreviated. Although
brevity promotes the purpose for which the state- Comment
ment was developed,it also necessitates incomplete- After termination of a client-lawyer relationship,
ness. For these reasons, it is specifically provided a lawyer may not represent another client except in
that the statement shall not serve to establish any conformity with this rule. The principles in rule
legal rights or duties, nor create any presumption 4-1.7 determine whether the interests of the pres-
that an existing legal or ethical duty has been ent and former client are adverse. Thus,a lawyer
breached. As
a result, the statement and its con- could not properly seek to rescind on behalf of a
tents should not he invoked by opposing parties as new client a contract drafted on behalf of the for-
grounds for disqualification of a lawyer or for prose- mer client. So also a lawyer who has prosecuted an
dural purposes. The purpose of the statement accused person could not properly represent the
would be subverted if it could be used in such a accused in a subsequent civil action against the
manner. government concerning the same transaction.
The statement is to be signed by the lawyer to The scope of a "matter" for purposes of rule
establish that it was timely provided to the insured, 4-1.9(a) may depend on the facts of a particular
but the insured client is not required to sign it. It situation or transaction. The lawyer's involvement
is in the best interest-, of the lawyer to have the in a matter can also be a question of degree. When
insured client sign the statement to avoid future a lawyer has been directly involved in a specific
,.. questions, but it is considered impractical to require transaction, subsequent representation of other
1974
RULES OF PROFESSIONAL CONDUCT Rule 4-1.10
d client's signature in clients with materially adverse interests clearly is would in ordinary practice be learned by a lawyer
prohibited. On the other hand,a lawyer who recur- providing such services.
lent and the duty to rently handled a type of problem fora former client The provisions of this rule are for the protection
tort cases involving is not precluded from later representing another of clients and can be waived if the former client
image should not be client in a wholly distinct problem of that type even gives informed consent. See terminology.
sty of the lawyer to though the subsequent representation involves a With regard to an opposing party's raising a
other circumstances. position adverse to the prior client. Similar consid- question of conflict of interest,see comment to rule
are involved, when erations can apply to the reassignment of military 4-1.7. With regard to disqualification of a firm with
✓ors of fees, or when lawyers between defense and prosecution functions which a lawyer is associated,see rule 4-1.10.
sd, similar needs for within the same military jurisdiction. The underly-
recognized in rules ing question is whether the lawyer was so involved.
in the matter that the subsequent representation Rule 4-1.10. Imputation of Conflicts of Interest;
can be justly regarded as a changing of sides in the General Rule
question.ibition on conduct by matter in q (a) Imputed Disqualification of All Lawyers in
sions (a) through (i) Matters are "substantially related" for purposes Firm. While lawyers are associated in a firm,none of
dated in a firm with of this rule if they involve the same transaction or them shall knowingly represent a client when any 1 of
er. For example, 1 legal dispute,or if the current matter would involve them practicing alone would be prohibited from doing
ter into a business the lawyer attacking work that the lawyer per- so by rule 4--1.7 or 4-1.9 except as provided elsewhere
Cher member of the formed for the former client. For example, a law- in this rule, or unless the prohibition is based on a
bdivision(a), even if yer who has previously represented a client in arsons] interest of the prohibited
ally involved in the securing environmental penults to build a shopping p p lawyer and does
center would be precluded from representing neigh- not present a significant risk of materially limiting the
bors seeking to oppose rezoning of the property on representation of the client by the remaining lawyers
at; Former Client the basis of environmental considerations; however, in the fim
presented a client in a the
sub lawyer
would relationship precluded,
defending atenant unds (b) Former Clients of Newly Associated Lawyer.
of the completed shopping When a lawyer becomes associated with a firm, the
p Aping center in resisting evic- firm may not knowingly r
tion for nonpayment Y g y represent a person� in the same or a p yrnent of rent, p son in the
which that person's Lawyers owe confidentiality obligations to former same or a substantially related matter in which that
to the interests of the clients,and thus information acquired by the lawyer lawyer, or a firm with which the lawyer was associat-
client gives informed in the course of representing a client may not ed, had previously represented a client whose inter-
subsequently be used b the la ests are material] adverse to that person and about
q Y Y lawyer to the disadvan- Y
tage of the client without the former client's con- whom the lawyer had acquired information protected
.o the representation sent. For example,a lawyer who has represented a by rules 4-1.6 and 4-1.9(b) and (c) that is material to
ner client except as businessperson and learned extensive private fi nan- the matter.
tire with respect to a cial information about that person may not then (c) Representing Interests Adverse to Clients of
ias become generally represent that person"s spouse in seeking a divorce. Formerly Associated Lawyer. When a lawyer has
However, the fact that a lawyer has once served a terminated an association with a firm, the firm is not
to the represents- client does not preclude the lawyer from using
generally known information about that client when prohibited from thereafter representing a person with
d permit or require later representing another client. Information that interests materially adverse to those of a client repre-
has been widely disseminated by the media to the sented by the formerly associated lawyer unless:
1,1993(605 So.2d 252); public, or that typically would be obtained by any (1) the matter is the same or substantially related
23,2006,effective May reasonably prudent lawyer who had never repre- to that in which the formerly associated lawyer repre-
0,effective Feb.1,2010 sented the former client,should be considered gen- seated the client; and
erally known and ordinarily will not be disqualify-
ing. The essential question is whether, but for (2) any lawyer remaining in the firm has informa-
having represented the former client, the lawyer tion protected by rules 4-1.6 and 4-1.9(b) and (c) that
Dwyer relationship, would know or discover the information. is material to the matter.
ier client except in Information acquired in a prior representation (d) Waiver of Conflict. A disqualification pre-
principles in rule may have been rendered obsolete by the passage of scribed by this rule may be waived by the affected
crests of the pres- time. In the case of an organizational client,gener-
a. Thus,a lawyer al knowledge of the client's policies and practices chant under the conditions stated in rule 4-1.7.
nd on behalf of a ordinarily will not preclude a subsequent represen- (e) Government Lawyers. The disqualification of
behalf of the for. tation; on the other hand, knowledge of specific lawyers associated in a firm with former or current
has prosecuted an facts,gained in a prior representation that are rele- government lawyers is governed by rule 4-1.11.
rly represent the vant to the matter in question ordinarily will pre-
ction against the elude such a representation. A former client is not Amended July,e effective
effective Jan.1,1993(605'So.2d 252y
ransaction, required to reveal the confidential information March effective
effective May 22,2006(93'3 So.2d 417); July
purposes of rule learned by the lawyer in order to establish a sub-
s of a particular stantial risk that the lawyer has confidential infor- ,Comment
yer's involvement mation to use in the subsequent matter. A eonclu-
of degree. When sion about the possession of such information may Definition of"f"um'''
ved in a specific be based on the nature of the services the lawyer With respect to the law department of an organi-
atation of other provided the former client and information that ration,there is ordinarily no question that the mem-
1975
Municode Page I of 1
0. Receipt of compensation by public officer or employee prohibited.
(a) It is prohibited for any public officer or employee,whether serving as county officers or
employees or as public officers or employees of other governmental entities to receive a
commission or any other compensation for a transaction recommended or approved by the
governmental board upon which the public officer sits or the agency by which the public
employee is employed.
(1) This prohibition does not extend to situations where a public officer or
employee receives a benefit from the generation of business that benefits all
businesses similarly situated to that owned or employing the public officer or
employee, but applies only to commissions or compensation that is particular to
the officer or employee.
(2) An attorney employed or on retainer by any local governmental entity in
Monroe County and contracted to provide services to Monroe County or any
agency thereof may be exempted by the terms of his contract, as approved by
the board of county commissioners,from the provisions of this section.
(b) The board of county commissioners may void any action or contract entered into in
connection with a matter where it is determined that this section has been violated.
Ord.No.010-2010,4 t
E 4or".s note—
Ord. No. 010, § 1, adopted Mar. 17, 2010, set out provisions intended for use as 2-429. For
purposes of classification and to preserve the style of this Code, and at the editor's
discretion,these provisions have been included as 2-430
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