Item G1 * BOCC SPECIAL MEETING
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1/31/14-- KW Division: County Attorney
Bulk Item: Yes XX No Staff Contact Person: Bob Shillinger, 292-3470
AGENDA ITEM WORDING: Approval to waive conflict of interest between the County and the law
firm of Nabors, Giblin & Nickerson (NGN) with respect to that firm's dual representation of the County and
North Key Largo Utility Corp. regarding a proposed irrigation water tank funding agreement and authorization
for the County Attorney to execute conflict waiver letter dated 12/30/2013.
ITEM BACKGROUND: The law firm of Nabors, Giblin & Nickerson (NGN) has served as the County's
bond counsel since 1990, if not before. That firm recently hired John Jenkins as an attorney with the firm. Mr.
Jenkins has represented the North Key Largo Utility Corp. ("NKLU")for a number of years.
The County and NKLU are presently working on an agreement to fund construction of an irrigation water tank
that will further the County's potable water conservation goals. The project was included in the capital
improvement plan approved by the BOCC in September of 2013. If the waiver is granted, Mr. Jenkins would
continue his representation of NKLU on this matter and the County Attorney's office, with possible assistance
from NGN attorneys other than Mr. Jenkins, would represent the County on this transaction. In the unlikely
event that litigation arises from this transaction, NGN would not represent either party. NKLU has already
consented to a conflict waiver for this transaction.
The Florida Bar's Rules of Professional Conduct allow a client to waive any conflict of interest that might arise
from the dual representation of both parties to a transaction if both clients consent to that waiver in writing. As
set forth in the NGN letter dated 12/31/2013, 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. These rules are attached.
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 #
TALLAHASSEE FORT MYERS
Suite 200 Bullding83,Suite 2
lass Mahan Drive :1.2731
My World Plaza Lane
Nabors
Tallahassee,Florida 32308 Fort Myers,Florida 33907
(850)224-4070 Tel Gi
• p (239)288-4027 Tel
(850)224-4073 Fax " " 2884057 Fax
FORT LAUDERDALEb11r1 (239)TAMPA
208 S.E.Sixth Street Suite 1060
Fort Lauderdale,Florida 33301 NickersonP A. 2502 Rocky Point Drive
(954)525-8000 Tel Tampa,Florida 33607
(954)525.8331 Fax (813)2812222 Tel
(813)281-0129 Fax
December 30,2013
Bob Shillinger,Esq.
County Attorney
Monroe County Attorney's Office
I I 1112th Street, Suite 408
Key West, FL 33040
Re: North Key Largo Utility Corp.;
Irrigation Water Tank Funding Agreement
Dear Bob,
North Key Largo Utility Corp. ("NKLU") is a member-owned cooperative serving
wastewater customers in and adjacent to the Ocean Reef Club on Key Largo. Since its
incorporation, I have worked with the Company on a variety of utility matters including funding
for system capital improvements. Since 2012, I have been associated with the law firm of
Nabors, Giblin & Nickerson P.A. ("NGN"). From time to time NGN has acted as bond counsel
and provided advice on local government issues to Monroe County.
In 2007, as part of its wastewater treatment plant upgrade, NKLU entered into an
agreement with the South Florida Water Management District pursuant to which NKLU agreed
to supplement its highly treated wastewater effluent irrigation system with water produced by a
system of raw water wells, reverse osmosis treatment system and chlorine contact tank. Use of
these alternative irrigation water sources furthers the County's water conservation goals and
conserves potable water supply in the Florida Keys. As a part of this alternative water supply
irrigation system, NKLU intends to build, and the County will assist in funding, a 4.0 million
gallon water storage tank and related treatment system improvements. The parties have reached
substantial agreement on the terms of this arrangement, and County staff has prepared a draft
funding agreement.
In representing NKLU regarding•this funding arrangement, NGN may be involved in
issue identification; review, revise, and finalize the funding agreement; advice to the Company
on existing loan requirements; and legal counsel on related matters. As actual funding is not
anticipated until late 2014,no closing issues need be addressed at this time.
When a lawyer becomes associated with a new firm, as I have with NGN, the Florida Bar
Rules of Professional Conduct state that the firm may not knowingly represent a person in the
Bob Shillinger, Esq.
December 30, 2013
Page 2
same or a substantially related matter in which that lawyer(or a firm with which the lawyer was
associated), had previously represented a client whose interests are materially adverse to that
person, and about whom the lawyer had acquired confidential information that is material to the
matter at hand. However, the Rules do allow such representation if each affected client gives
informed consent, confirmed in writing. NGN and I will be prohibited from representing NKLU
in this matter unless you provide informed, written consent. I have attached relevant provisions
of the Rules of Professional Conduct in the event you wish to review them.
The purpose of this letter is to confirm agreement by the County that NGN may represent
NKLU in the matter described above, and that County agrees to waive any conflict of interest
arising out of, and that you will not object to,this representation.
If you need to edit the terms of this letter, or wish to discuss any related issues, please
contact me at your earliest convenience. I have copied David Ritz, President of NKLU, with this
letter, and I will provide to you a similar letter that I am sending to NKLU to seek a waiver of
conflict from the Company. Once you are satisfied with this conflict waiver, please sign and
return the enclosed copy of this letter.
Sincerely,
.{ 1
ohn R.Jenkins
For the firm
cc: Mr. David Ritz
Steve Miller, Esq.
Enclosure
County Attorney
Monroe County Attorney's Office
OE C ATf Bob Shillinger,Esq.
ppQitO
R 72--8V 1C3ER
Rule 4-1.7 of the Rules Regulating the Florida Bar
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer
shall 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 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, confirmed in writing or clearly stated on
the record at a hearing.
Rule 4-1.9 of the Rules Regulating the Florida Bar
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless the former
client gives informed consent; or
(b) use information relating to the representation to the disadvantage of the former client
except as these rules would permit or require with respect to a client or when the information has
become generally known;or.
(c)reveal information relating to the representation except as these rules would permit or
require with respect to a client.
1
Rule 4-1.10(b)of the Rules Regulating the Florida Bar
(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated
with a firm,the firm may not knowingly represent a person in the same or a substantially related
matter in which that lawyer, or a firm with which the lawyer was associated, had previously
represented a client whose interests are materially adverse to that person and about whom the
lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c)that is material to
the matter.
Rule 4-1.10(d)of the Rules Regulating the Florida Bar
(d)Waiver of Conflict. A disqualification prescribed by this rule may be waived by the
affected client under the conditions stated in rule 4-1.7.
2
RULES OF PROFESSIONAL CONDUCT Rule 4-1.7
(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 repre-
sentation to each affected client;
C (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 law-
yer represents both clients in the same proceeding
before a tribunal; and
(4) each affected client gives informed consent,con-
firmed 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 shall include explanation of the impli-
cations of the common representation and the advan-
tages and risks involved.
(d) Lawyers Related by Blood or Marriage. A
lawyer related to another Iawyer as parent, child,
sibling, or spouse shall not represent a client in a
representation directly adverse to a person who the
lawyer knows is represented by the other lawyer
except upon consent by the client after consultation
regarding the relationship.
(e) Representation of Insureds. Upon undertak-
ing the representation of an insured client at the
expense of the insurer, a lawyer has a duty to ascer-
tain whether the lawyer will be representing both the
insurer and the insured as clients,or only the insured,
and to inform both the insured and the insurer re-
garding the scope of the representation. All other
Rules Regulating The Florida Bar related to conflicts
of interest apply to the representation as they would 4
in any other situation.
Amended July 23,1992,effective Jan.1,1993(605 So.2d 252);
Jan.23,2003,effective July 1,2003(838 So.2d 1140); March
23,2006,effective May 22,2006(933 So.2d 417).
Comment
Loyalty to a client
Loyalty and independent judgment are essential
elements in the lawyer's relationship to a client.
Conflicts of interest can arise from the lawyer'sresponsibilities to another [
client or
Rule 4-1.7. Conflict of Interest; Current Clients a third person, or from the lawyer'sormer own interests.
(a) Representing Adverse Interests. Except as For specific rules regarding certain conflicts of in- '
provided in subdivision (b), a lawyer shall not repre- terest,see rule 4-1.8. For former client conflicts of
sent a client if: interest, see rule 4-1.9. For conflicts of interest 1
involving prospective clients, see rule 4-1.18. For
(1) the representation of 1 client will be directly definitions of"informed consent"and"confirmed in
adverse to another client; or writing,"see terminology.
(2) there is a substantial risk that the representa- An impermissible conflict of interest may exist
lion of 1 or more clients will be materially limited by before representation is undertaken,in which event i
the lawyees responsibilities to another client,a former the representation should be declined. If such a
client or a third person or by a personal interest of conflict arises after representation has been under-
the lawyer. taken,the lawyer should withdraw from the repre-
2983 sentation. See rule 4-1.16. Where more than 1
i
Rule 4-1.7 RULES REGULATING THE FLORIDA BAR
client is involved and the lawyer withdraws because that cannot be handled competently and at a rea-
a conflict arises after representation, whether the sonable fee. See rules 4-1.1 and 4-1.5. If the
lawyer may continue to represent any of the clients probity of a lawyer's own conduct in a transaction is
is determined by rule 4-1.9. As to whether a client- in serious question,it may be difficult or impossible
lawyer relationship exists or, having once been es- for the lawyer to give a client detached advice. A
tablished, is continuing, see comment to rule 4-1.3 lawyer may not allow related business interests to
and scope. affect representation, for example, by referring
As a general proposition, loyalty to a client pro- clients to an enterprise in which the lawyer has an
hibits undertaking representation directly adverse undisclosed interest.
to that client's or another client's interests without Conflicts in litigation
the affected client's consent. Subdivision (a)(1) ex- Subdivision (a)(1) prohibits representation of op-
presses that general rule. Thus,a lawyer ordinari- posing parties in litigation. Simultaneous represen-
ly may not act as advocate against a person the tation of parties whose interests in litigation may
lawyer represents in some other matter,even if it is conflict, such as co-plaintiffs or co-defendants, is
wholly unrelated. On the other hand,simultaneous governed by subdivisions(a),(b)and(c). An imper-
representation in unrelated matters of clients whose missible conflict may exist by reason of substantial
interests are only generally adverse, such as com- discrepancy in the parties'testimony,incompatibili-
peting economic enterprises, does not require con- ty in positions in relation to an opposing party, or
sent of the respective clients. Subdivision (a)(1) the fact that there are substantially different possi
applies only when the representation of 1 client bilities of settlement of the claims or liabilities in
would be directly adverse to the other and where question. Such conflicts can arise in criminal cases
the lawyer's responsibilities of loyalty and confiden- as well as civil. The potential for conflict of interest
tiality of the other client might be compromised. in representing multiple defendants in a criminal
Loyalty to a client is also impaired when a lawyer case is so grave that ordinarily a lawyer should
cannot consider,recommend,or carry out an appro- decline to represent more than 1 co-defendant. On
priate course of action for the client because of the the other hand, common representation of persons
lawyer's other responsibilities or interests. The having similar interests is proper if the risk of
conflict in effect forecloses alternatives that would adverse effect is minimal and the requirements of
otherwise be available to the client. Subdivision subdivision(c)are met.
(a)(2)addresses such situations. A possible conflict Ordinarily, a lawyer may not act as advocate
does not itself preclude the representation. The against a client the lawyer represents in some other
critical questions are the likelihood that a conflict matter,even if the other matter is wholly unrelated.
will eventuate and,if it does,whether it will materi- However,there are circumstances in which a lawyer
ally interfere with the lawyer's independent profes- may act as advocate against a client. For example,
sional judgment in considering alternatives or fore- a lawyer representing an enterprise with diverse
close courses of action that reasonably should be operations may accept employment as an advocate
pursued on behalf of the client. Consideration against the enterprise in an unrelated matter if
should be given to whether the client wishes to doing so will not adversely affect the lawyer's rela-
accommodate the other interest involved. tionship with the enterprise or conduct of the suit
Consultation and consent and if both clients consent upon consultation. By
A client may consent to representation notwith- the same token, government lawyers in some cir-
standing a conflict. However,as indicated in subdi- cumstances may represent government employees
vision (a)(1)with respect to representation directly in proceedings in which a government agency is the
adverse to a client and subdivision (a)(2) with re- opposing party. The propriety of concurrent repre-
spect to material limitations on representation of a sentation can depend on the nature of the litigation.
client, when a disinterested lawyer would conclude For example, a suit charging fraud entails conflict
that the client should not agree to the representa- to a degree not involved in a suit for a declaratory
lion under the circumstances, the lawyer involved judgment concerning statutory interpretation.
cannot properly ask for such agreement or provide A lawyer may represent parties having antagonis-
representation on the basis of the client's consent. tic positions on a legal question that has arisen in
When more than 1 client is involved,the question of different cases, unless representation of either-
conflict must be resolved as to each client. More- client would be adversely affected. Thus, it is
over,there may be circumstances where it is impos- ordinarily not improper to assert such positions in
sible to make the disclosure necessary to obtain cases pending in different trial courts,but it may be
consent. For example,when the lawyer represents improper to do so in cases pending at the same time
different clients in related matters and 1 of the in an appellate court.
clients refuses to consent to the disclosure neces- Interest of person paying for a lawyer's service
sary to permit the other client to make an informed
decision, the lawyer cannot properly ask the latter A lawyer may be paid from a source other than
to consent. the client, if the client is informed of that fact and
Lawyer's interests consents and the arrangement does not compromise
the lawyer's duty of loyalty to the client. See rule
The lawyer's own interests should not be permit- 4-1.8(f). For example, when an insurer and its
ted to have adverse effect on representation of a insured have conflicting interests in a matter arising
client. For example, a lawyer's need for income from a liability insurance agreement and the insurer
should not lead the lawyer to undertake matters is required to provide special counsel for the in-
1984
1
RULES OF PROFESSIONAL CONDUCT Rule 4-1.8
sured, the arrangement should assure the special caution, however, for it can be misused as a tech-
counsel's professional independence. So also,when nique of harassment. See scope.
a corporation and its directors or employees are Family relationships between lawyers
involved in a controversy in which they have con-
flicting interests,the corporation may provide funds Rule 9-1.7(d) applies to related lawyers who are
in different firms. Related lawyers in the same
for separate legal representation of the directors or
employees, if the clients consent after consultation firm are also governed by rules 4-1.9 and 4-1.10.
and the arrangement ensures the lawyer's profes- The disqualification stated in rule 4-1.7(d)is person-
sional independence. al and is not imputed to members of firms with
whom the lawyers are associated.
Other conflict situations Representation of Insureds
Conflicts of interest in contexts other than litiga- The unique tripartite relationship of insured, in-
tion sometimes may be difficult to assess. Relevant surer,and lawyer can lead to ambiguity as to whom
factors in determining whether there is potential for a lawyer represents. In a particular case,the law-
adverse effect include the duration and intimacy of yer may represent only the insured,with the insur-
the lawyer's relationship with the client or clients er having the status of a non-client third party
involved,the functions being performed by the law- payor of the lawyer's fees. Alternatively, the law.
yer,the likelihood that actual conflict will arise,and yer may represent both as dual clients, in the
the likely prejudice to the client from the conflict if absence of a disqualifying conflict of interest, upon
it does arise. The question is often one of proximi- compliance with applicable rules. Establishing clan-
ty and degree. ity as to the role of the lawyer at the inception of
For example, a lawyer may not represent multi- the representation avoids misunderstanding that
ple parties to a negotiation whose interests are may ethically compromise the lawyer. This is a
fundamentally antagonistic to each other, but com- general duty of every lawyer undertaking represen.
mon representation is permissible where the clients tation of a client, which is made specific in this
are generally aligned in interest even though there context due to the desire to minimize confusion and
is some difference of interest among them. inconsistent expectations that may arise.
Conflict questions may also arise in estate plan- Consent confirmed in writing or stated on the
ning and estate administration. A lawyer may be record at a hearing
called upon to prepare wills for several family mem- Subdivision(b)requires the lawyer to obtain the
bers, such as husband and wife, and, depending informed consent of the client,confirmed in writing
upon the circumstances, a conflict of interest may or clearly stated on the record at a hearing. With
arise. In estate administration the identity of the regard to being confirmed in writing,such a writing
client may be unclear under the law of some juris- may consist of a document executed by the client or
diction. In Florida,the personal representative is one that the lawyer promptly records and transmits
the client rather than the estate or the beneficiaries. to the client following an oral consent. See termi-
The lawyer should make clear the relationship to nology. If it is not feasible to obtain or transmit
the parties involved. the writing at the time the client gives informed
A lawyer for a corporation or other organization consent,then the lawyer must obtain or transmit it
who is also a member of its board of directors within a reasonable time thereafter. See terminolo-
should determine whether the responsibilities of the gy. The requirement of a writing does not supplant
2 roles may conflict. The lawyer may be called on the need in most cases for the lawyer to talk with
to advise the corporation in matters involving ac- the client, to explain the risks and advantages, if
tions of the directors. Consideration should be any, of representation burdened with a conflict of
given to the frequency with which such situations interest,as well as reasonably available alternatives,
may arise,the potential intensity of the conflict,the and to afford the client a reasonable opportunity to
effect of the lawyers resignation from the board, consider the risks and alternatives and to raise
and the possibility of the corporation's obtaining questions and concerns. Rather, the writing is
legal advice from another lawyer in such situations. required in order to impress upon clients the seri-
If there is material risk that the dual role will ousness of the decision the client is being asked to
compromise the lawyer's independence of profes- make and to avoid disputes or ambiguities that
sional judgment, the lawyer should not serve as a might later occur in the absence of a writing.
director.
Conflict charged by an opposing party
Resolving questions of conflict of interest is pri-
marily the responsibility of the lawyer undertaking
the representation. In litigation,a court may raise
the question when there is reason to infer that the
lawyer has neglected the responsibility. In a crimi-
nal case,inquiry by the court is generally required
when a lawyer represents multiple defendants.
Where the conflict is such as clearly to call in
question the fair or efficient administration of jus-
tice,opposing counsel may properly raise the ques-
tion. Such an objection should be viewed with
1985
Rule 4-1.8 RULES REGULATING THE FLORIDA BAR
Rule 4-1.9. Conflict of Interest; Former Client
A lawyer who has formerly represented a client in a
matter shall not thereafter:
(a) represent another person in the same or a
substantially related matter in which that persons
interests are materially adverse to the interests of the
former client unless the former client gives informed
consent;
(b) use information relating to the representation
to the disadvantage of the former client except as
these rules would permit or require with respect to a
client or when the information has become generally
known; or
(c) reveal information relating to the representa-
tion except as these rules would permit or require
with respect to a client.
Amended July 23,1992,effective Jan.1,1993(605 So.2d 252);
April 25,2002(820 So.2d 210); March 23,2006,effective May
22,2006(933 So.2d 417); Nov.19,2009,effective Feb.1,2010
(24 So.3d 63).
Comment
After termination of a client-lawyer relationship,
a lawyer may not represent another client except in
conformity with this rule. The principles in rule
4-1.7 determine whether the interests of the pres-
ent and former client are adverse. Thus, a lawyer
could not properly seek to rescind on behalf of a
new client a contract drafted on behalf of the for-
mer client. So also a lawyer who has prosecuted an
accused person could not properly represent the
accused in a subsequent civil action against the
government concerning the same transaction.
The scope of a "matter" for purposes of rule
4-1.9(a) may depend on the facts of a particular
# situation or transaction. The lawyer's involvement
in a matter can also be a question of degree. When
I a lawyer has been directly involved in a specific
# transaction, subsequent representation of other
1990
RULES OF PROFESSIONAL CONDUCT Rule 4-1.10
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.
rently handled a type of problem for a former client The provisions of this rule are for the protection
is not precluded from later representing another of clients and can be waived if the former client
client in a wholly distinct problem of that type even gives informed consent. See terminology.
though the subsequent representation involves a
position adverse to the prior client. Similar consid- With regard to an opposing party's raising a
erations can apply to the reassignment of military question of conflict of interest,see comment to rule
lawyers between defense and prosecution functions 4-1.7. With regard to disqualification of a firm with
within the same military jurisdiction. The underly- which a lawyer is associated,see rule 4-1.10.
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
matter in question. (a) Imputed Disqualification of All Lawyers in
Matters are "substantially related" for purposes Firm. While lawyers are associated in a firm,none of
of this rule if they involve the same transaction or them shall knowingly represent a client when any 1 of
legal dispute,or if the current matter would involve them practicing alone would be prohibited from doing
the lawyer attacking work that the lawyer per- so by rule 4-1.7 or 4-1.9 except as provided elsewhere
formed for the former client. For example, slaw- in
yer who has previously represented a client in this rule, or unless the prohibition is based on a
securing environmental permits to build a shopping personal interest of the prohibited lawyer and does s,
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
the basis of environmental considerations; however, in the firm.
the lawyer would not be precluded,on the grounds {b) Former Clients of Newly Associated Lawyer. s
of substantial relationship,from defending a tenant When a lawyer becomes associated with a firm, the
of the completed shopping center in resisting evic-
tion for nonpayment of rent. firm may not knowingly represent a person in the
La same or a substantially related matter in which that
Lawyers owe confidentiality obligations to former lawyer, or a firm with which the lawyer was associat-
clients,and thus information acquired en the lawyer ed, had previously represented a client whose inter-
sthe course of representing a client may not ests are materially adverse to that person and about
subsequently be used by the lawyer to the disadvan- Y
tage of the client without the former client's con- whom the lawyer had acquired information protected
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
businessperson and learned extensive private finan- the matter.
cial information about that person may not then
represent that person's spouse in seeking a divorce. (c) Representing Interests Adverse to Clients of
Formerly Associated Lawyer. When a lawyer has
However, the fact that a lawyer has once served a
client does not preclude the lawyer from using terminated an association with a firm, the firm is not
generally known information about that client when prohibited from thereafter representing a person with 4
later representing another client. Information that interests materially adverse to those of a client repre 41
-
has been widely disseminated by the media to the sented by the formerly associated lawyer unless:
public, or that typically would be obtained by any reasonably prudent lawyer who had never (1) the matter is the same or substantially related
repre-
sented the former client,should be considered gen- to that in which the formerly associated lawyer repre-
erally known and ordinarily will not be disqualify- sented the client; and
in . The essential
g question is whether, but for (2) any lawyer remaining in the firm has informs-
having represented the former client, the lawyer tion protected by rules 4-1.6 and 4-1.9(b)and (c) that
would know or discover the information. is material to the matter. y
k
Information acquired in a prior representation (d) Waiver of Conflict. A disqualification pre-
may have been rendered obsolete by the passage of scribed by this rule may be waived by the affected
al knowledge of the clients policies and practices time. In the case of an organizational client, ices client under the conditions stated in rule 4-1.7.
ordinarily will not preclude a subsequent represen- (e) Government Lawyers. The disqualification of
tation; on the other hand, knowledge of specific lawyers associated in a firm with former or current
facts gained in a prior representation that are rele- government lawyers is governed by rule 4-1.11.
vant to the matter in question ordinarily will pre- Amended July 23,1992,effective Jan.1,1993(605 So.2d 252);
chide such representation. A former client is not
required to March 23,2006,effective May 22,2006(933 So.2d 417); Jul
reveal the confidential information 7,2011,effective Oct.1,2011(67 So.3d 1037). Y
learned by the lawyer in order to establish a sub-
stantial risk that the lawyer has confidential infor-
mation to use in the subsequent matter. A conclu-
sion about the possession of such information may Definition of"firm" -
be based on the nature of the services the lawyer With respect to the law department of an organ-
provided the former client and information that zation,there is ordinarily no question that the mem
1991
3
Yi
Rule 4-1.10 RULES REGULATING THE FLORIDA BAR
bers of the department constitute a firm within the political beliefs,for example,but that lawyer will do
meaning of the Rules of Professional Conduct. no work on the case and the personal beliefs of the
However,there can be uncertainty as to the identity lawyer will not materially limit the representation
of the client. For example, it may not be clear by others in the firm, the firm should not be dis-
whether the law department of a corporation repre- qualified. On the other hand,if an opposing party
sents a subsidiary or an affiliated corporation, as in a case were owned by a lawyer in the law firm,
well as the corporation by which the members of and others in the firm would be materially limited in
the department are directly employed. A similar pursuing the matter because of loyalty to that law-
question can arise concerning an unincorporated yer, the personal disqualification of the lawyer
association and its local affiliates. would be imputed to all others in the fuze.
Similar questions can also arise with respect to The rule in subdivision (a)also does not prohibit
lawyers in legal aid. Lawyers employed in the representation by others in the law firm where the
same unit of a legal service organization constitute a person prohibited from involvement in a matter is a
firm,but not necessarily those employed in separate nonlawyer, such as a paralegal or legal secretary.
units. As in the case of independent practitioners, Such persons,however,ordinarily must be screened
whether the lawyers should be treated as associated from any personal participation in the matter to
with each other can depend on the particular rule avoid communication to others in the firm of confi-
that is involved and on the specific facts of the dential information that both the nonlawyers and
situation. the firm have a legal duty to protect. See terminol-
Where a lawyer has joined a private firm after ogy and rule 4-5.3.
having represented the government,the situation is Lawyers moving between firms
governed by rule 4-1.11(a)and(b); where a lawyer
represents the government after having served pri- When lawyers have been associated in a fuze but
vate clients, the situation is governed by rule then end their association, however, the problem is
4-1.11(c)(1). The individual lawyer involved is more complicated. The fiction that the law firm is
bound by the rules generally,including rules 4-1.6, the same as a single lawyer is no longer wholly
4-1.7,and 4-1.9. realistic. There are several competing consider-
Different provisions are thus made for movement ations. First, the client previously represented
of a lawyer from 1 private fuze to another and for must be reasonably assured that the principle of
movement of a lawyer between a private firm and loyalty to the client is not compromised. Second,
the government. The government is entitled to the rule of disqualification should not be so broadly
protection of its client confidences and, therefore, cast as to preclude other persons from having rea-
to the protections provided in rules 4-1.6, 4-1.9, sonable choice of legal counsel. Third, the rule of
and 4-1.11. However, if the more extensive dis- disqualification should not unreasonably hamper
qualification in rule 4-1.10 were applied to former lawyers from forming new associations and taking
government lawyers, the potential effect on the on new clients after having left a previous associa-
government would be unduly burdensome. The tion. In this connection, it should be recognized
government deals with all private citizens and or- that today many lawyers practice in firms, that
ganizations and thus has a much wider circle of many to some degree limit their practice to 1 field
adverse legal interests than does any private law or another,and that many move from 1 association
firm. In these circumstances, the government's to another several times in their careers. If the
recruitment of lawyers would be seriously impaired concept of imputed disqualification were defined
if rule 4-1.10 were applied to the government. On with unqualified rigor, the result would be radical
balance,therefore,the government is better served curtailment of the opportunity of lawyers to move
in the long run by the protections stated in rule from 1 practice setting to another and of the oppor-
4-1.11. tunity of clients to change counsel.
Principles of imputed disqualification Reconciliation of these competing principles in
the past has been ted under 2 rubrics. One
The rule of imputed disqualification stated in approach has been to seek per e rules of disqualifi-
subdivision(a)gives effect to the principle of loyalty cation. For example,it has been held that a part-
to the client as it applies to lawyers who practice in ner in a law firm is conclusively presumed to have
a law firm. Such situations can be considered from access to all confidences concerning all clients of the
the premise that a firm of lawyers is essentially 1 firm. Under this analysis, if a lawyer has been a
lawyer for purposes of the rules governing loyalty partner in one law firm and then becomes a partner
to the client or from the premise that each lawyer is in another law firm,there is a presumption that all
vicariously bound by the obligation of loyalty owed confidences known by a partner in the first firm are
by each lawyer with whom the lawyer is associated. known to all partners in the second firm. This
Subdivision (a) operates only among the lawyers presumption might properly be applied in some
currently associated in a firm. When a lawyer circumstances, especially where the client has been
moves from 1 firm to another the situation is gov- extensively represented, but may be unrealistic
erned by subdivisions(b)and(c). where the client was represented only for limited
The rule in subdivision (a) does not prohibit rep- purposes. Furthermore,such a rigid rule exagger-
resentation where neither questions of client loyalty ates the difference between a partner and an associ-
nor protection of confidential information are pre- ate in modern law firms.
sented. Where 1 lawyer in a firm could not effec- The other rubric formerly used for dealing with
lively represent a given client because of strong vicarious disqualification is the appearance of impro-
1992
d,
RULES OF PROFESSIONAL CONDUCT Rule 4-1.11
priety and was proscribed in former Canon 9 of the tion by the individual lawyer involved,but does not
Code of Professional Responsibility. This rubric properly entail abstention of other lawyers through
has a two-fold problem. First, the appearance of imputed disqualification. Hence, this aspect of the
impropriety can be taken to include any new client- problem is governed by rule 4-1. 9(a). Thus, if a
lawyer relationship that might make a former client lawyer left 1 firm for another, the new affiliation
feel anxious. If that meaning were adopted, dis- would not preclude the firms involved from continu-
qualification would become little more than a ques- ing to represent clients with adverse interests in the
tion of subjective judgment by the former client. same or related matters so long as the conditions of
Second, since "impropriety" is undefined, the term rule 4-1.10(b) and (c) concerning confidentiality
"appearance of impropriety" is question-begging. have been met.
it therefore has to be recognized that the problem Rule 4-1.10(d) removes imputation with the in-
of imputed disqualification cannot be properly re- formed consent of the affected client or former
solved either by simple analogy to a lawyer practic- client under the conditions stated in rule 4-1.7.
ing alone or by the very general concept of appear- The conditions stated in rule 4-1.7 require the
ance of impropriety. lawyer to determine that the representation is not
A rule based on a functional analysis is more prohibited by rule 4-1.7(b) and that each affected
appropriate for determining the question of vicari- client or former client has given informed consent to
ous disqualification. Two functions are involved: the representation, confirmed in writing or clearly
preserving confidentiality and avoiding positions ad- stated on the record. In some cases,the risk may
verse to a client. be so severe that the conflict may not be cured by
Confidentiality client consent. For a definition of informed con-
Preserving confidentiality is a question of access sent,see terminology.
to information. Access to information, in turn, is Where a lawyer is prohibited from engaging in
essentially a question of fact in particular circum- certain transactions under rule 4-1.8,subdivision(k)
stances,aided by inferences,deductions,or working of that rule, and not this rule, determines whether
presumptions that reasonably may be made about that prohibition also applies to other lawyers associ-
the way in which lawyers work together. A lawyer ated in a firm with the personally prohibited lawyer.
may have general access to files of all clients of a
law firm and may regularly participate in discus-
sions of their affairs; it should be inferred that such
a lawyer in fact is privy to all information about all
the firm's clients. In contrast,another lawyer may
have access to the files of only a limited number of
clients and participate in discussion-of the affairs of
no other clients; in the absence of information to
the contrary, it should be inferred that such a
lawyer in fact is privy to information about the
clients actually served but not information about
other clients.
Application of subdivisions(b)and(c)depends on
a situation's particular facts. In any such inquiry,
the burden of proof should rest upon the firm whose
disqualification is sought.
Subdivisions(b) and (e) operate to disqualify the
four► only when the lawyer involved has actual
knowledge of information protected by rules 4-1.6
and 4-1.9(b)and(c). Thus,if a lawyer while with 1
firm acquired no knowledge or information relating
to a particular client of the firm and that lawyer
later joined another firm,neither the lawyer individ-
ually nor the second firm is disqualified from repre-
senting another client in the same or a related
matter even though the interests of the 2 clients
conflict. {
Independent of the question of disqualification of
a firm, a lawyer changing professional association
has a continuing duty to preserve confidentiality of
information about a client formerly represented.
See rules 4-1.6 and 4-1.9.
Adverse positions
The second aspect of loyalty to client is the
lawyer's obligation to decline subsequent represen-
tations involving positions adverse to a former client
arising in substantially related matters. This obli-
gation requires abstention from adverse representa-
1993
TALLAHASSEE FORT MYERS
Suite 200 Building 83,Suite 2
1500 Mahan DriveNabOws 12731 World Plaza Lane
Tallahassee,Florida 32308 Fort Myers,Florida 33907
(850)224-4070 Tel
(850)224-4073 Fax (239)288-4027 Tel
Gibliel 1 (239)288.4057 Fax
FORT LAUDERDALE TAMPA
208 S.E.Sixth Street
1060
Fort Lauderdale,Florida 33301P A Suite
Nickerska-in
Point
(954)525-8000 Tel 2502 Rocky Point Drive
(954)525-8331 Fax Tampa,Florida
(813)281-2222 Tel Tei
(813)281-0129 Fax
December 30, 2013
Mr. David Ritz,President
North Key Largo Utility Corporation
24 Dockside Lane, #512
Key Largo, Florida 33037
Re: North Key Largo Utility Corp.;
Irrigation Water Tank Funding Agreement
Dear David,
As you know, North Key Largo Utility Corp. ("NKLU") is a member-owned cooperative
serving wastewater customers in and adjacent to the Ocean Reef Club on Key Largo. Since its
incorporation, I have worked with the Company on a variety of utility matters including funding
for system capital improvements. Since 2012, I have been associated with the law firm of
Nabors, Giblin &Nickerson P.A. ("NGN"). From time to time NGN has acted as bond counsel
and provided advice on local government issues to Monroe County,
In 2007, as part of its wastewater treatment plant upgrade, NKLU entered into an
agreement with the South Florida Water Management District pursuant to which NKLU agreed
to supplement its highly treated wastewater effluent irrigation system with water produced by a
system of raw water wells, reverse osmosis treatment system and chlorine contact tank. Use of
these alternative irrigation water sources furthers the County's water conservation goals and
conserves potable water supply in the Florida Keys. As a part of this alternative water supply
irrigation system, NKLU intends to build, and the County will assist in funding, a 4.0 million
gallon water storage tank and related treatment system improvements. The parties have reached
substantial agreement on the terms of this arrangement, and County staff has prepared a draft
funding agreement.
In representing NKLU regarding this funding arrangement, NGN may be involved in
issue identification; review, revise, and finalize the funding agreement; advice to the Company
on existing loan requirements; and legal counsel on related matters. As actual funding is not
anticipated until late 2014, no closing issues need be addressed at this time.
When a lawyer becomes associated with a new firm, as I have with NGN,the Florida Bar
Rules of Professional Conduct state that the firm may not knowingly represent a person in the
same or a substantially related matter in which that lawyer (or a firm with which the lawyer was
Mr. David Ritz
December 30, 2013
Page 2
associated),.had previously represented a client whose interests are materially adverse to that
person, and about whom the lawyer had acquired confidential information that is material to the
matter at hand. However, the Rules do allow such representation if each affected client gives
informed consent, confirmed in writing. NGN and I will be prohibited from representing NKLU
in this matter unless you provide informed, written consent. i have attached relevant provisions
of the Rules of Professional Conduct in the event you wish to review thetas.
The purpose of this letter is to confirm agreement by NKLU that NGN may represent
NKLU in the matter described above, and that NKLU agrees to waive any conflict of interest
arising out of, and that you will not object to,this representation.
If you need to edit the terms of this letter, or wish to discuss any related issues, please
contact me at your earliest convenience. I have copied Bob Shillinger, Monroe County Attorney,
with this letter, and I will provide to you a similar letter that I am sending to the County to seek a
waiver of conflict from the County. Once you are satisfied with this conflict waiver, please sign
and return the enclosed copy of this letter.
Sincerely,
Jo enkins
For the 1rm
cc: Bob Shillinger, Esq.
Steve Miller, Esq.
Enclosure
North Key Largo Utility Corporation
4
L
David Ritz, President