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HomeMy WebLinkAboutRapport and Marston 1996-01-11b1-11-1996 04:OOPM FROM RAPPORT & MARSTON TO I Law Offices Of i RAPPORT AND MARSTON An Association of Sole Practitioners 200 W. Henry Street P.O. Box 488 Ukiah, California 85482 David J. Rapport Lester J. Marston MEMORANDUM TA: Honorable Mayor and City Councilmembers FkOM: David J. Rapport, City Attorney DA►Tr=: January 11, 1996 SUBJECT: Consent to dual representation CC96001 UKIAH P.02 (707) 462-6846 FAX 4624235 In! February 1995, the City Council previously consented to my representing both Redwood Valley County Water District ("District") and the City of Ukiah ("Ukiah") in matters relating to the proposed Potter Valley Authority. (A copy of the memorandum disclosing the conflict is enclosed for your re~erence. ) A I that time Sonoma County Water Agency ("Agency") was trying to develop legislation to create a P6tter Valley Authority. The Authority would have been empowered to negotiation with PG & E over the sale of the Potter Valley Project and to charge all water users under its jurisdiction fees to fund any agreements it reached with PG & E. A group of lawyers representing different water interests in Sonoma, Mendocino and Marin Counties were meeting regularly to draft this legislation. The District arid Ukiah agreed that I could. represent both agencies despite the potential conflicts of interest disclosed in the attached letter. Since then, the Agency has abandoned efforts to form a Potter Valley Authority. Instead, it has iniltiated direct negotiations with PG & E for the purchase of the Potter Valley Project. Partially in relsponse to this development, the Mendocino County Russian River Flood Control and Water Conservation Improvement District ("Flood Control District") has spearheaded an effort to develop a joi t powers agency which is being called the Mendocino County Inland Water and Power Commission. The purpose of the Commission is to negotiate with the Agency and PG & E over the future of the Potter Valley Project and to explore and develop additional water for inland Mendocino County. The Commission is being justified by the argument that water interests in Mendocino County will be more effective in dealing with these issues, if they can do so through one organization, The Commission would be governed by a Board consisting of one representative from PVID, one from the District, one from the Flood Control District, one from Ukiah and one from the Board of Supervisors as,, the governing board of the Mendocino Water Agency. I Have already participated in several meetings and suggested changes to drafts of the joint powers agreement. The purpose of this letter is to ask whether the City Council will consent to my continuing to represent it during the development of the joint powers agreement forming the Commission and in its dealings with the Commission, if it is formed. I 8:1uV1r698Lvvwdai dRnuRiy 1 i, 1998 01-11-1996 04:01PM FROM RAPPORT & MARSTON TO UKIAH P.03 ra.ndum to Mayor and Council embers ect: Dual representation ary 11, 1996 Page 2 All of the same potential conflicts exist in this representation as existed in connection with the Potter Valley Project. In addition, more direct conflicts will arise here. For example, as parties to the a6reement Ukiah and the. District could have a number of conflicting interests regarding how each party should contribute to the Commission's costs of operation. As members of the Commission's governing Board, the representatives from the District and Ukiah could disagree on a variety of policy matters which the Board must address. If the representatives want legal advice concerning such afters, I could have divided loyalties and would receive confidential lawyer-client communications f m each representative. A~ explained in the enclosed letter, Rule 5-102 of the Rules of Professional Responsibility prohibits a rr~ember of the State Bar from accepting professional employment without first disclosing his relation, if any, with the adverse party. In addition, a member of the State Bar shell not accept employment where he represents potential conflicting interests, unless he first obtains his client's written consent tdi such employment. Role 4-101 prohibits a member of the State Bar from accepting employment adverse to a client or former client, without the informed written consent of the client, relating to a matter in reference to which he has obtained confidential information in the course of his employment by the client. These potential conflicts could significantly interior with my ability to represent both parties. At the same time, however, under ate existing arrangement it is less expensive for both the District and Ukiah, if they use me rather than hiring separate lawyers to represent their interests. In my opinion that added expense is justified only if the conflicting interests are serious or complicated. In these e rly stages in the formation of the Commission, I don't believe the conflicting interests of 'the District and Ukiah are serious or complex. Disagreements over how much each member should contribute toithe commission or what activities the Commission should undertake after it is first formed are not compllcated. 1 don't believe either agency will be seriously compromised by representation from the same lawyer as to these types of issues. All of the Commission's members will have more common than conflicting interests in negotiations with the Agency or PG & E over the Potter Valley Project. Under the proposed joint powers a regiment, the Commission will undertake specific water projects under "project specific agreements" among those members of the Commission who want to participate in the project. More serious and complex disputes may arise, when the Commission begins to consider specific water projects and the parties negotiate project specific agreements. At that time it may become necessary fome to withdraw and for the District and Ukiah to retain independent counsel. Until that time, h ever, it is my opinion that the additional cost of separate representation for the District and Ukiah is ~ot necessary. Of course, you may justifiably feel differently and prefer to seek separate representation immediately. If that is your preference, I would withdraw from representing both the District and Ukiah on matters pertaining to the Commission. If ' ou are willing to consent to my representation based on the disclosures provided in this letter and th~ terms as stated herein, please authorize the Mayor to sign this memorandum in the space ingicated below. If ~1 ou have any questions or need additional information regarding this matter, I will be happy to prdvide that at your request. i %:Vhrs96VveWd 6 Janu" i 1, 1996 01-11-1996 04:02PM FROM RAPPORT & MARSTON i Memorandum, to Mayor and Councilmembers Subject: Dual repreeehtation J4nuary 11, 1996 Fred Schneite . Mayor ATT TO UKIAH P.04 Page 3 e:wkr~s64vawsf.a January lB~A I I i