TO: Honorable Mayor & Members of the North Port Commission
FROM: A. Jerome Fletcher II, ICMA-CM, MPA, City Manager
TITLE: Approve the Acknowledgement and Agreement to Waive Any Conflict of Interest With Bryant Miller Olive, P.A. for Legal Services.
Recommended Action
Approve the Acknowledgement and Agreement to Waive Conflict of Interest with Bryant Miller Olive, P.A., for legal services.
Background Information
The City desires to enter into an Interlocal Agreement with Charlotte County (“County”) for the purpose of coordinating resources for the construction of certain improvements to the intersection of Cranberry Boulevard and Hillsborough Boulevard, and ancillary improvements to the intersection of Cranberry Boulevard and U.S. Highway 41. The City Attorney’s Office desires to engage with the law firm of Bryant Miller Olive, P.A. (“BMO”) to represent the City by reviewing and providing comments/recommended revisions to the draft Interlocal Agreement.
BMO currently serves as Disclosure Counsel to the County under an ongoing Legal Services Agreement. BMO has represented the County as disclosure counsel for many years and has previously represented the County in other matters. Likewise, BMO has advised the County that BMO represents the City of North Port as Disclosure Counsel and in a variety of other matters. BMO does not represent the County in any matter relating to the proposed Interlocal Agreement.
In many respects, the interests of the County and the City are aligned. Both parties wish work together to improve certain intersections in their communities. That said, for purposes of The Florida Bar Rules, the City and the County are on opposite sides of the Interlocal Agreement they intend to enter to accomplish this. The interests of the County and the City may diverge with respect to certain issues regarding the project and terms of the Agreement. Also, it is possible that a dispute may arise between the parties concerning the Agreement in the future.
The Florida Bar rules generally prohibit a lawyer from representing a client if the representation will be directly adverse to another client or there is a substantial risk that the representation 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. This general prohibition does not bar the representation if both clients provide informed written consent, provided that (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; and (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.
At present, BMO and the City Attorney’s Office believe that BMO undertaking representation of the City by conducting legal review, providing comments, and recommending revisions to the proposed Agreement is consistent with the rules of professional responsibility. First, the representation is not prohibited by law. Second, the representation does not presently involve BMO asserting positions adverse to either party in the same proceeding before a tribunal. Third, BMO’s obligations to the County as Disclosure Counsel and under its Legal Services Contract with the County are unrelated to the Interlocal Agreement with the City and would not limit any obligations BMO has to the City, or vice versa. In addition, the representation will not compromise any other professional obligations, such as maintaining attorney-client privilege. Fourth, the scope of services to be provided by BMO in the Interlocal Agreement matter do not involve any proceeding before a tribunal. BMO agrees that it will not represent the City or the County in any litigation that may arise regarding the Interlocal Agreement. BMO’s lawyers who will provide legal services to the City regarding the Interlocal Agreement have not had a role in handling matters for the County.
Strategic Plan
Infrastructure and Facilities Integrity
Financial Impact
Not applicable.
Procurement
Not applicable.
Attachments:
1. Acknowledgement and Agreement Waiving Conflict of Interest
Prepared by: Michael Golen, Interim City Attorney
Department Director: Michael Golen, Interim City Attorney