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Item R11 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Revised Agenda Meeting Date: November 18,2014 Division: County Attomey Bulk Item: Yes xx- No — Staff Contact Person/Phone#:-- Bob Shillinger 292-3470 AGENDA ITEM WORDING: Approval of limited waiver of conflict of interest between Monroe County and the law firm of Gunster,Yoaldey&Stewart,P.A. ITEM BACKGROUND:The County wishes to employ the firm of Gunster,Yoakley&Stewart, P.A. (Gunster) for assistance in matters related to the Canal Restoration Project and other items where Gunster has expertise. The waiver is needed in the event a conflict of interest arises between the County and another client that Gunster represents. The limited waiver contemplates that Gunster would still be able to represent clients who are seeking development approvals from the County including administrative appeals of denials of development permits and other quasi-judicial proceedings but would prohibit Gunster from representing clients in litigation against the County in state or federal court unless that specific matter is waived by the County. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES:N/A STAFF RECOMMENDATIONS:Approval TOTAL COST: INDIRECT COST: BUDGETED: Yes X No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes i No AMOUNT PER MONTH Year APPROVED BY: County AW.Y"�OMB/Purchasing— Risk Management DOCUMENTATION: Included TBP* Not Required *Placeholder only—to be provided. DISPOSITION: AGENDA ITEM# Revised 7/09 CU NSTER FLORIDA'S LAW FIRM FOR BUSINESS Our File Number:00031128.P39081 Writer's Direct Dial Number:(954)712-1478 Writer's E-Mail Address: 1phillips@gunster.com November 3,2014 Robert B. Shillinger,Jr.,Esq. 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 ("GYS') proposed legal representation of the Monroe County(the"County") Dear Mr. Shillinger: In connection with the proposed representation of the County in its challenge before the South Florida Water Management District and the Florida Department of Environmental Protection's application for environmental permits related to canal cleaning (the "Matter"), this letter addresses the circumstances under which the County consents to GYS' representation and waives any conflict of interest. GYS currently represents several private companies and individuals in connection with various regulatory matters before the County and anticipates representing additional clients in similar matters in the future as well as possible litigation that may arise from or related to such regulatory matters (the "GYS Clients"). These matters are (or will be) wholly unrelated to the proposed representation in this Matter for the County. As a result of our representation of the GYS Clients, our representation of the County in the Matter described above would create a conflict of interest within the meaning of the Rules Regulating the Florida Bar. Specifically, Rule 4-1.7 of the Florida Rules of Professional Conduct states that a lawyer shall not represent a client if: (1) the representation of one client will be directly adverse to another client; or (2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a.former client or a third person or by personal interest of the lawyer. Accordingly,while GYS' representation of the GYS Clients is wholly unrelated to this Matter,the proposed representation of the County would, nevertheless, create a conflict of interest because a GYS lawyer would be representing the GYS Clients in matters directly adverse to the County as the approving agency in those regulatory matters. Las Olas Centre 450 East Las Olas Boulevard,Suite 1400 Fort Lauderdale,FL 33301 p 954-462-2000 f 954-523-1722 GUNSTER.COM Fort Lauderdale I Jacksonville I Miami I Palm Beach I Stuart I Tallahassee I Tampa I Vero Beach I West Palm Beach Robert B. Shillinger,Jr.,Esq. November 3,2014 Page 2 Rule 4-1.7 goes on to provide that, notwithstanding the existence of a conflict of interest, 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. As used in the Rules of Professional Conduct, the phrase "Informed Consent"means"the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct." We have consulted with you regarding the conflict of interest that would arise through our representation of the County in this Matter and have explained the implications and material risks of our simultaneous representation of the GYS Clients with respect to other unrelated matters. As we have discussed, the primary risks arising from this type of conflict circumstance are that (1) the representation of one client may be materially limited or less than zealous or eager due to the representation of the other client, and (2) the potential that one client's confidences or secrets may be disclosed to the other and used adversely against the first. We believe that in this Matter, GYS will be able to provide competent and diligent representation to the County and to the GYS Clients without resulting in any adverse impacts on our relationships with either the County or the GYS Clients. The law does not prohibit these representations and GYS' representation of the County and the GYS Clients will not involve the representation of both sides in the same proceeding. Under these circumstances,we believe that a waiver of the conflict of interest and the County's consent to our representation of current and future GYS Clients in regulatory matters, including land use and development approvals and code enforcement matters before the County or in any quasi-judicial or administrative proceeding arising out of or related to such matters would be ethically permissible. The County will consider on a case by case basis waivers that involve GYS's representation of Clients directly adverse to the County in state and federal court. First, GYS' proposed representation of the County in this Matter is wholly unrelated to our representation of the GYS Clients on other matters. Second, we will take every reasonable precaution that the confidences of the County and the GYS Clients will be carefully preserved. In addition, you agree that you will not disclose to us any of the County's confidential information unrelated to this Matter and that we will not disclose to you any confidential information relating to our representation of the GYS Clients in other matters. It is our understanding that, after considering the advantages, disadvantages and material risks of the proposed conflict waiver as well as the reasonably available alternatives to providing the consent that we have requested,the County has agreed(1)to provide its Informed Consent to GYS' representation of the County in this Matter, (2) to waive the resulting conflict of interest, Gunster, Yoakley & Stewart, P.A. ATTORNEYS AT LAw Robert B.Shillinger,Jr.,Esq. November 3,2014 Page 3 and (3) that GYS may represent current and future GYS Clients in regulatory matters as discussed above before the County, provided, further, that in the event the County,revokes its consent in this Matter or declines to consent in future regulatory matters to GYS' representation of a GYS Client, the County agrees that GYS will have the right to immediately terminate its representation of the County in this Matter and that GYS may continue to represent the GYS Clients in regulatory matters before the County. Subject to this limitation, you agree that GYS may actively and zealously represent the GYS Clients' interests in other matters consistent with our obligations to all of our clients. If, at any time, we have any concerns about new conflict issues with respect to our representation we will, to the extent required by the Rules Regulating The Florida Bar, bring those concerns to your attention and suggest that.you take such actions as may be appropriate. If, at any time, you have similar concerns, we ask that you immediately bring them to our attention. We request that you sign this letter acknowledging that you have received it agree with the understandings contained herein and consent to our representation as described herein and discussed with you. As we have discussed,this is an important issue that.deserves your careful consideration. You should consult with counsel other than GYS before making the decision to sign this letter. If you desire to consult with independent counsel concerning these matters, we would be happy to work with any counsel that you designate for this purpose. Finally, this will also confirm that before undertaking the representation of the County in this Matter,we will obtain a similar acknowledgement and consent from all GYS Clients. Very truly yours, Luna E.Phillips LEP/mm. Agreed to by and on behalf of the County this day 2014.- By: Print Name: Title: FTI,.ACTIVE 4509965.1 9/23/14 Gunster, Yoakley & Stewart, P.A. ATTORNEYS AT LAw