HomeMy WebLinkAboutAgreement A-20-342 FCTA conflict waiver.pdfConflict Waiver:
Representation of the County and FCTA regarding contract for
construction management services.
Your Board recently authorized Department of Public Works and Planning (PWP) to enter into
a contract with the Fresno County Transportation Authority (FCTA) wherein the County will
provide construction management services to FCTA for the Golden State Corridor
Infrastructure Improvements Project, a project being constructed with Measure C funds.
The Office of County Counsel has been asked to represent the County (Department of Public
Works and Planning staff, specifically) in regards to drafting said contract. One of our office's
deputy county counsels already represents the FCTA in all matters pursuant to the Board's
earlier authorization and would represent it in this contract negotiation as well. This situa�ion is
a bit different from the regular representation with FCTA in that no contracts with the County
are typically entered into. Accordingly, we have to inform you about our representation and
obtain your informed written consent.
RULES OF PROFESSIONAL CONDUCT
Rule 3-310 of the California Rules of Professional Conduct provides, in pertinent part:
(C)A member shall not, without the informed written consent of each client:
(1)Accept representation of more than one client in a matter in which the interests of
the clients potentially conflict; or
(2)Accept or continue representation of more than one client in a matter in which the
interests of the clients actually conflict; or
(3)Represent a client in a matter and at the same time in a separate matter accept as a
client a person or entity whose interest in the first matter is adverse to the client in the
first matter.
CONSEQUENCES OF THE REPRESENTATION
We are obliged, under the rule cited above, to inform you of any actual or reasonably
foreseeable adverse effects of this representation. It is possible that conflicts between the
County and FCTA may develop into disputes. This scenario could have potentially problematic
results in regard to our representation of the County. In particular:
•Someone may argue that we would be tempted to favor the interests of one
client over the other.
•Our exercise of independent judgment to the County may be impaired or
clouded by our pre-existing relationship with FCTA.
Agreement No. 20-342
• We may not be able to present the appropriate position, claims or defenses for a
client In order to avoid taking adverse positions to one of you.
• We may be restricted from forcefully advocating a client's position for fear of
alienating the other client.
• We may be forced to withdraw from representing either or both clients because
of disputes or further conflicts of interest which could increase either or both
clients' attorney's fees and costs.
• There may be an appearance of impropriety in our representation of both clients
simultaneously.
Our office believes that we can adequately mitigate any risks of these consequences, especially
since this is for such a discrete task. 1) We will have two different attorneys in our office
represent each side of the contract; 2) neither attorney will have access to the other's files or
documents as regards this contract; and 3) the two attorneys will not discuss the matter with
each other, and 4) each attorney will report to different superiors with any issues that arise.
Moreover, this is simple reimbursement for cost of services contract and the parties have a
preexisting governmental relationship with County members sitting on the FCTA Board. Under
these circumstances the parties do not appear to be adverse with respect to this transaction.
As regards reviewing the subject contract, the attorney representing FCTA will report to Chief
Deputy County Counsel Brian Melikian, and the attorney representing the County will report to
County Counsel Daniel Cederborg.
YOUR CONSENT
If you wish our office to represent the County in this matter, we need you to sign this consent
letter. It is understood that this consent will not prevent County Counsel from representing the
County of Fresno now or in the future, and will not waive any protection that you may have
with regard to attorney-client communications with us in this matter. Those communications
will remain confidential and will not be disclosed to any third party without your consent. The
files will be kept separate and there will be no communication regarding the respective
representations except as among those persons solely working for that entity.
In the event that circumstances change or we become aware of new information that requires
a new consent from the parties, you will be notified of that fact immediately, and continued
representation will be subject to the informed written consent of involved parties.
Your execution of this consent form will constitute an acknowledgment of full disclosure in
compliance with the requirements of Section 3-310 of the California Rules of Professional
Conduct previously quoted in this letter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first hereinabove written.
FOR ACCOUNTING USE ONLY :
ORG No .:
Account No .:
Requisition No .:
COUNTY OF FRESNO
£~~ Ernest "Buddy" Mende 7afrman of the
By :
Board of Supervisors of the County of Fresno
ATTEST :
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California