Item O4BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: June 20, 2012 Division: County Attomey
Bulk Item: Yes _ No xx Staff Contact Person/Phone #: Bob Shillinger, x3470
AGENDA ITEM WORDING: Approval of contract for legal services with the law firm of Krupnick,
Campbell Malone et al for legal representation of the County in potential claims arising from the
Deepwater Horizon Oil Spill.
ITEM BACKGROUND: The County has been approached by a handful of law firms seeking to
represent it in litigation arising from claims that the County may have against responsible parties
arising from the Deepwater Horizon Oil Spill of 2010. The Board decided to go with the Krupnick,
Campbell firm at the June 2012 meeting. The contract terms and the potential conflict of interest issue
regarding the wastewater assessments that delayed approval in July have been resolved although local
counsel David Paul Horan requests the opportunity to address the Board so he can discuss the
possibility of waiving future conflicts. .
Under the agreement, the firm will represent the County on a contingency basis, meaning that the firm
will advance all costs and will only recover those costs and will only paid a fee out of the proceeds of
any recovery received. In short, the County will not advance any costs or fees nor will the County be
liable for costs or fees should the firm's efforts be unsuccessful. If successful, the firm will be paid a
fee of 30% of the gross recovery, prior to deduction for costs, if the matter is resolved prior to entry of
judgment at trial and 35% thereafter.
PREVIOUS RELEVANT BOCC ACTION: May 16, 2012, the Board gave direction to staff to
research proposal and bring back a contract that required no investment of time or money by the
County. June 20, 2012, the Board voted to select the Krupnick, Campbell firm to represent it and
directed staff to bring back a contract in July. July 18, 2012, the Board voted to postpone approval of
the contract a month to resolve a potential conflict of interest with local counsel David Paul Horan.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Approval
TOTAL COST: None INDIRECT COST: TBD BUDGETED: n/a
COST TO COUNTY: None SOURCE OF FUNDS: None
REVENUE PRODUCING: potentially AMOUNT to be determined
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included xx Not Required
DISPOSITION: AGENDA ITEM #
Shillinger-Bob
From:
Karen R. Horan <Karen@horan-wallace.com>
Sent:
Monday, July 30, 2012 5:11 PM
To:
Shillinger-Bob; David P. Horan
Cc:
Hutton -Suzanne; Gastesi-Roman; David Rice
Subject:
RE: BP Oil spill case
Dear Bob:
The reason I started working with Bob McKee and the Krupnick Campbell firm was that I found them to be the
best firm regarding the actual ability (and willingness) to bring actions against BP, et al. to collect reasonable
damages. This is the same reason that I approached Monroe County.
Remember, I requested that if my presence as local counsel was a problem, I would withdraw. That may be
necessary because of some recent unexpected issues that have arisen.
With a small (3 partner/2 associate) firm and the rapidly growing numbers of Keys attorneys, good cases can't
be turned away. Cases involving land use, code enforcement, construction, civil rights, etc., make up a large part of our
firm's legal work. I've put forty years into building my firm's reputation as a firm that can handle these kinds of cases.
It's never occurred to me that acting as local counsel with Krupnick Campbell on the County's BP claim would
be a conflict with further representation by my firm of clients on zoning, ROGO issues, code enforcement, fees, taxes,
civil rights, etc.
Unless the County is willing to waive "conflict" on a broad range of the above issues, we simply can't afford to
co -counsel with the Krupnick Campbell firm on the County's BP claim. I would have no problem in requesting a waiver in
the (hopefully unlikely) event actual litigation against Monroe County was to occur. In the event waiver was denied, I
could refer the case to another firm.
Working for Monroe County has been a good part of my professional life. Some may see the Chamber of
Commerce and Military Affairs Committee as not working for our community, but I do. Most would agree that long-time
service on the Human Services Advisory Board and Sheriff's Shared Assets Committee, Mote Marine Advisory Board and
National Marine Waste Foundation as community service. The reason I recommended Krupnick Campbell was that I was
providing (what I believe is) a community service.
I am aware that a number of good local attorneys are strongly in favor of Monroe County working with "their"
firms so that they can get a referral fee. These attorneys may (or may not) be shown on the retainer agreements as
local counsel. Their name being absent from any agreement should not be determinative of any future "conflict" issues.
I would appreciate being able to discuss these issues with the Commission prior to the Commission voting on
the Krupnick Campbell retainer agreement. Please advise me as to whether this can occur.
By copy of this to Mayor David Rice and County Administrator Roman Gastesi, I am asking that copies of this
email be furnished to the Monroe County Commissioners whose email addresses are not available on the Monroe
County website.
Rcspcctfiilly,
David Paul Horan, Esq.
(Dictated By David Paul Horan)
Hor,ap Wallace
:iggins
608 Whitehead Street
Key West, Florida 33040
(305) 2944585 ('Telephone)
(305) 294-7822 (Facsimile)
This a -mail, as well as any attachments to same, is covered by the Electronic Communications Privacy Act, 18 USC Section 2510-2521 and is legally privileged under
federal and state law, including but not limited to laws applicable to the attorney/client-privilege and other private matters. The information contained in this e-mail
message is attorney privileged and confidential information intended only for use of the individual or entity named above. If the reader of this message is not the
intended recipient, you are hereby notilied that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this
communication in error, please notify us immediately by telephone. The receipt by anyone other than the designated recipient does not waive the attorney/client
privilege, nor will it constitute a waiver of the work -product doctrine. THANK YOU.
From: Shillinger-Bob [mailto:Shillinger-Bob@MonroeCounty-FL.Gov]
Sent: Monday, July 30, 2012 9:26 AM
To: David P. Horan
Subject: BP Oil spill case
David Paul:
My agenda deadline is tomorrow. Can I get something in writing that you are no longer representing the Cudjoe group?
Bob Shillinger
Chief Assistant County Attorney
Monroe County Attorney's Office
1111 12th Street, Suite 408
Key West, FL 33040
(305) 292-3470
(305) 292-3516 (facsimile)
Please note that Florida has a broad public records law and that any communication with the County could be
considered a public record. If you do not wish for your email address to become a public record, use the telephone or
some other method of conveying your message.
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LAW OFFICES
KRUPNICK CAMPBELL MALONE
BUSER SLAMA HANCOCK LIBERMAN & MCKEE
JON E. KRUPNICK'
WALTER G. CAMPBELL, JR.* t
KEVIN A. MALONE*
THOMAS E. BUSER*
JOSEPH J. SLAMA*
KELLY D. HANCOCK"'t*
SCOTT S. LIBERMAN
ROBERT J. MCKEE
IVAN F. CABRERAt
KELLEY B. STEWARTtt
MICHAEL J. RYAN
CARLOS A. ACEVEDO**
HOLLY D. KRULIK
A PROFESSIONAL ASSOCIATION
12 SOUTHEAST SEVENTH STREET
SUITE 801
FORT LAUDERDALE, FLORIDA 33301-3426
TELEPHONE (954) 763-8181
TOLL FREE (877) 763-8181
FACSIMILE (954) 763-8292
W W W. KRUPNICKLAW.COM
NICK S. DAVITIANt
JACQUELYN S. HOLDEN..ttt
SEAN F. THOMPSON
MARK GIULANI
M. JASON WEIL
'BOARD CERTIFIED CIVIL TRIAL LAWYER
"ADMITTED IN NY ONLY
'"ADMITTED IN NY
tADMITTED IN DISTRICT OF COLUMBIA
#ADMITTED IN NORTH CAROLINA
M ADMITTED IN CONNECTICUT
*ADMITTED IN WASHINGTON
BP Deepwater Horizon Drilling Rig Oil Spill Disaster
Florida Contingency Fee Agreement and Authority to Represent
Uwe, _Monroe County, Florida , the undersigned client (hereinafter referred to as "I,"
"we," "us," "me," "The County" or the "Client"), do hereby retain the LAW OFFICES OF
KRUPNICK CAMPBELL MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE,
P.A., THE LAW OFFICES OF HORAN, WALLACE & HIGGINS, LLP, and the law firms
listed on Exhibit "A" attached hereto (hereinafter referred to as "Attorneys"), as my/our
Attorneys to represent me/us in connection with my/our claim for damages related to the BP
DEEPWATER HORIZON DRILLING RIG OIL SPILL DISASTER (hereinafter referred to as
"Claim").
Uwe understand that Uwe am/are NOT employing attorneys to represent me/us for any
insurance -related claims.
Uwe understand that under this Contingent Fee Agreement the Attorneys will investigate
and evaluate the County's claim. Thereafter, Uwe will be informed as to whether or not the
Attorneys will proceed further with this claim.
Uwe specifically authorize Attorneys to undertake negotiations and/or file suit and/or
institute legal proceedings as they deem necessary on my/our behalf. Uwe further authorize
Attorneys to retain and employ, at my/our expense, the services of any experts, as well as the
services of other outside contractors, as Attorneys deem necessary or expedient in representing
my/our interests. Uwe also authorize Attorneys to retain and employ other attorneys not
Contingency Fee Agreement and Authority to Represent Page 1 of 6
associated with Attorneys without my/our prior knowledge and written consent; however, the
combined fee of Attorneys and all other attorneys shall be limited as set forth herein below. All
costs and expenses will be advanced by the Attorneys who will be reimbursed from my/our
recovery. If Uwe do not obtain a settlement or collectable judgment, Uwe shall have no liability
to pay the costs expended in attempting to obtain the settlement or collectable judgment.
Uwe understand that Attorneys jointly will assume responsibility for the representation as
a whole and Attorneys agree that it may be necessary to institute and prosecute Client's Claim to
determination in the appropriate court, and make all reasonable and necessary efforts to collect
any judgment that may be rendered therein in Client's favor. Uwe understand that my/our
Attorneys agree to be available for consultation.
Uwe further understand that the LAW OFFICES OF KRUPNICK CAMPBELL
MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE, P.A. will be primarily
responsible for the evaluation, investigation, and handling of my/our claim and the LAW
OFFICES OF HORAN, WALLACE & HIGGINS, LLP, whom I/we initially contacted regarding
my/our claim, will be acting as co -counsel. However,.
1. ATTORNEYS' FEES. As compensation for legal services, I/we agree to pay
my/our Attorneys as follows:
Contingency Fee — Attorneys shall receive a percentage of the gross recovery before the
deduction of costs and expenses as follows: 30% if the claim is resolved prior to entry of
judgment at trial; 35% if the claim is resolved after any appeal is filed. This fee shall be divided
amongst Attorneys with no additional Attorneys' fee due from me.
As used in this agreement "gross recovery" means principal, interest, penalties, litigation
costs and expenses, statutory attorneys' fees, and all other amounts recovered or to be recovered,
including the value of any structured settlement, future payments, remediation, or non -pecuniary
benefits, whether by suit, settlement, judgment, or otherwise.
It is understood and agreed that this employment is upon a contingency fee basis and, if
no recovery is made, Uwe will not be indebted to Attorneys for any sum whatsoever as
Attorneys' Fees and/or costs.
2. COSTS AND EXPENSES. In addition to paying Attorneys' Fees, in the event of
a successful recovery, Uwe agree to pay all costs and expenses in connection with Attorneys'
handling of this matter. Attorneys shall have the right and authority, without prior approval of
Client, to incur such litigation costs and expenses as may be necessary and/or advisable in
furtherance of Client's Claim. Uwe agree to bear responsibility in the event there is a gross
recovery in this matter for those litigation costs and expenses that will be reimbursed from
my/our gross recovery. The full accounting of these costs and expenses shall be permanently
available to me/us at the Fort Lauderdale, Florida, LAW OFFICES OF KRUPNICK CAMPBELL
Contingency Fee Agreement and Authority to Represent Page 2 of 6
MALONE BUSER SLAMA HANCOCK LIBERMAN & MCKEE, P.A., and Uwe understand that
a detailed summary of the same will be sent to me/us upon request, and Uwe hereby agree to
reimburse Attorneys immediately upon receipt of any settlement funds or collected judgment.
Litigation costs and expenses may include (but are not limited to) the following: filing fees;
deposition costs; expert witness fees; transcript costs; witness fees; subpoena costs; sheriff and
service of process fees; trial consultant fees; mock trial costs; shadow jury fees; mediation fees;
court costs; trial exhibit costs; copy costs; photographic, electronic or digital evidence
production; investigation fees; travel expenses; and any other case -specific expenses directly
related to the representation undertaken. Additionally, Uwe specifically authorize Attorneys to
charge as recoverable costs items such as computer legal research charges (e.g., Westlaw and/or
Lexis); long distance telephone expenses; cellular telephone charges; postage charges; Federal
Express, UPS, and other delivery service charges; internal photocopying at a rate of $ .25 per
page; facsimile costs at a rate of $ .25 per page; mileage; and outside courier charges, all of
which must be incurred solely for the purposes of the representation undertaken. Finally, Uwe
understand that Uwe will not be charged costs and expenses for any overhead costs of Attorneys'
practice, including office rent, utility costs, charges for local telephone service, office supplies,
fixed asset expenses, and ordinary secretarial and staff services.
3. NO GUARANTEE. Uwe acknowledge that Attorneys have made no promise or
guarantee regarding the outcome of my/our legal matter. In fact, Attorneys have advised me/us
that litigation in general is risky, can take a long time, can be very costly, and can be very
frustrating. Uwe further acknowledge that Attorneys shall have the right to cancel this agreement
and withdraw from this matter if, in Attorneys' professional opinion, the matter does not have
merit, Uwe do not have a reasonably good possibility of recovery, Uwe refuse to follow the
recommendations of Attorneys, Uwe fail to abide by the terms of this agreement, and/or if
Attorneys' continued representation would result in a violation of the Rules of Professional
Conduct, or at any other time as or if permitted under the Rules of Professional Conduct. No
guarantee or representation has been made to Client as to what type or amount of recovery, if
any, may be expected on Client's Claim. Attorneys are given the right to withdraw from this
representation after giving reasonable notice.
4. STATUTORY ATTORNEY'S FEES. In the event of recovery under the
provisions of any laws which specify attorney's fees to be paid, Attorneys are entitled to the
whole of the statutory fee awarded regardless of whether there is an award of damages. The
Attorneys shall be entitled to receive this court -awarded fee or the contingent percentage,
whichever is greater.
5. FLORIDA LAW. This contract shall be governed by Florida law. It contains the
entire and complete understanding between the parties and can only be modified by written
amendment signed by all parties. If any provision of this agreement is found to be inconsistent
with the law of Florida, it will be deemed stricken and all remaining provisions will be deemed to
Contingency Fee Agreement and Authority to Represent Page 3 of 6
be in full force and effect.
6. TERMINATION OF REPRESENTATION. Uwe understand that Uwe have
the right to terminate the representation upon written notice to that effect. Uwe understand that
Uwe will be responsible for any fees or costs incurred prior to the discharge or termination, based
on all of the facts and circumstances deemed relevant by Florida statutory law and/or
jurisprudence.
Uwe agree to cooperate with Attorneys at all times and to comply with all reasonable
requests of Attorneys. Uwe agree to keep Attorneys advised of my/our whereabouts at all times,
and to provide Attorneys with any changes of address and/or phone number. Uwe warrant and
represent to Attorneys that all information Uwe have provided to and/or will in the future provide
to them in connection with this claim is true and correct to the best of my/our knowledge,
information, and belief. The Attorneys are assuming the cost of all initial studies and
investigation to determine whether Uwe have a viable claim for damages, and in the event it is
determined that Uwe do not have such a viable claim for damages, no reimbursement for the
initial studies and investigation will be made or due by me/us to anyone. This agreement shall be
binding on the heirs, successors, and assigns of the parties hereto.
7. ENTIRE AGREEMENT. Uwe have read this agreement, a copy of which Uwe
have received, in its entirety and Uwe agree to and understand the terms and conditions set forth
herein. Uwe acknowledge that there are no other terms or oral agreements existing between
Attorneys and Client. This agreement may not be amended or modified in any way without the
prior written consent of Attorneys and Client.
8. CANCELLATION OF CONTRACT BY CLIENT. Uwe understand that Uwe
may cancel this Contract within three (3) business days of the date Uwe sign, by written
notification to my/our Attorneys, without incurring any obligation for Attorneys' fees or costs.
9. EXPLANATION TO CLIENT REGARDING POTENTIAL CONFLICTS
AMONG CLIENTS. Attorneys have discussed with me/us and Uwe understand that it is
possible that because Attorneys are representing a common multiplicity of clients in a single
matter, that there is a potential for conflicts of interest among various individual clients or groups
of clients. Uwe understand that Attorneys represent multiple clients in this regard.
Uwe freely and willingly enter into this contract knowing about the advantages and risks
involved as a result of the common representation. Uwe understand that in participating in this
manner, Uwe benefit from reduced and shared costs, and a potential greater ability of my/our
Attorneys to have more influence in the outcome of the entire process, as a result of this common
representation within which Uwe am/are a part.
Uwe further acknowledge that in this matter, Attorneys will only represent additional
clients whose interests are generally aligned with my/our interests, even though there may be
Contingency Fee Agreement and Authority to Represent Page 4 of 6
some differences.
This agreement is executed by me/us, the undersigned Client, on this
.2012.
CLIENT:
ATTEST: DANNY L. KOLHAGE, CLERK
I0
Deputy Clerk
day of
For Monroe County, Florida
Name and Title: Mayor David Rice
The foregoing agreement is hereby accepted on this
Attorney:
day of 92012.
Printed Name:
For: Krupnick Campbell Malone Buser Slama
Hancock Liberman & McKee, P.A.
Attorney:
Printed Name:
For: Smith Stag, L.L.C.
Attorney:
Printed Name:
For: Horan, Wallace & Higgins, LLP
Contingency Fee Agreement and Authority to Represent Page 5 of 6
Gulf Oil Disaster Recovery Group
Contingency Fee Agreement
Exhibit "A"
Firm/Company City St Zip
Smith Stag, L.L.C. New Orleans LA 70130
Krupnick Campbell Malone Buser Slama Hancock
Liberman & McKee, P.A. Ft. Lauderdale FL 33301
Horan, Wallace & Higgins, LLP Key West FL 33040
Contingency Fee Agreement and Authority to Represent Page 6 of 6
Statement of Client's Rights for Contingency Fees
Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you
should understand this statement of your rights as a client. This statement is not a part of the
actual contract between you and your lawyer, but, as a prospective client, you should be aware of
these rights:
1. There is no legal requirement that a lawyer charge a client a set fee or a percentage
of money recovered in a case. You, the client, have the right to talk with your lawyer about the
proposed fee and to bargain about the rate or percentage as in any other contract. If you do not
reach an agreement with one lawyer, you may talk with other lawyers.
2. Any contingent fee contract must be in writing and you have three business days
to reconsider the contract. You may cancel the contract without any reason if you notify your
lawyer in writing within three business days of signing the contract. If you withdraw from the
contract within the first three business days, you do not owe the lawyer a fee although you may
be responsible for the lawyer's actual costs during that time. If your lawyer begins to represent
you, your lawyer may not withdraw from the case without giving you notice, delivering necessary
papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain
court approval before withdrawing from a case. If you discharge your lawyer without good cause
after the three-day period, you may have to pay a fee for work the lawyer has done.
3. Before hiring a lawyer, you, the client, have the right to know about the lawyer's
education, training, and experience. If you ask, the lawyer should tell you specifically about the
lawyer's actual experience dealing with cases similar to yours. If you ask, the lawyer should
provide information about special training or knowledge and give you this information in writing
if you request it.
4. Before signing a contingent fee contract with you, a lawyer must advise you
whether the lawyer intends to handle your case alone or whether other lawyers will be helping
with the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell you
what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from
different law firms will represent you, at least one lawyer from each law firm must sign the
contingent fee contract.
5. If your lawyer intends to refer your case to another lawyer or counsel with other
lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case
and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a
new contract that includes the new lawyers. You, the client, also have the right to consult with
each lawyer working on your case and each lawyer is legally responsible to represent your
interests and is legally responsible for the acts of the other lawyers involved in the case.
Statement of Client's Rights Page I of 3
6. You, the client, have the right to know in advance how you will need to pay the
expenses and the legal fees at the end of the case. If you pay a deposit in advance for costs, you
may ask reasonable questions about how the money will be or has been spent and how much of it
remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If
your lawyer agrees to lend or advance you money to prepare or research the case, you have the
right to know periodically how much money your lawyer has spent on your behalf. You also
have the right to decide, after consulting with your lawyer, how much money is to be spent to
prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your
lawyer should also inform you whether the fee will be based on the gross amount recovered or on
the amount recovered minus the costs.
7. You, the client, have the right to be told by your lawyer about possible adverse
consequences if you lose the case. Those adverse consequences might include money that you
might have to pay to your lawyer for costs and liability you might have for attorney's fees, costs,
and expenses to the other side.
8. You, the client, have the right to receive and approve a closing statement at the
end of the case before you pay any money. The statement must list all of the financial details of
the entire case, including the amount recovered, all expenses, and a precise statement of your
lawyer's fee. Until you approve the closing statement, your lawyer cannot pay any money to
anyone, including you, without an appropriate order of the court. You also have the right to have
every lawyer or law firm working on your case sign this closing statement.
9. You, the client, have the right to ask your lawyer at reasonable intervals how the
case is progressing and to have these questions answered to the best of your lawyer's ability.
10. You, the client, have the right to make the final decision regarding settlement of a
case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers
during the trial must be immediately communicated and you should consult with your lawyer
regarding whether to accept a settlement. However, you must make the final decision to accept
or reject a settlement.
11. If at any time you, the client, believe that your lawyer has charged an excessive or
illegal fee, you have the right to report the matter to The Florida Bar, the agency that oversees the
practice and behavior of all lawyers in Florida. For information on how to reach The Florida Bar,
call 850/561-5600, or contact the local bar association. Any disagreement between you and your
lawyer about a fee can be taken to court and you may wish to hire another lawyer to help you
resolve this disagreement. Usually fee disputes must be handled in a separate lawsuit, unless
your fee contract provides for arbitration. You can request, but may not require, that a provision
for arbitration (under Chapter 682, Florida Statutes, or under the fee arbitration rule of the Rules
Regulating The Florida Bar) be included in your fee contract.
Statement of Client's Rights Page 2 of 3
Client Signature
Date
Client Signature
Date
Horan, Wallace & Higgins, LLP
Date
Statement of Client's Rights Page 3 of 3