HomeMy WebLinkAboutAgenda Report - January 7, 2004 I-01AGENDA ITEM 1 w 1
CITY OF LODI
COUNCIL COMMUNICATION
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AGENDA TITLE: Update regarding audit (agreed-upon services) of Envision Law Group's billings.
MEETING DATE: January 7, 2004
PREPARED BY: Deputy City Manager
RECOMMENDED ACTION: That the City Council receive an update regarding the audit of
agreed-upon procedures of Envision Law Group's billings.
BACKGROUND INFORMATION: At the request of Mayor Hansen, this item is placed on the agenda
to allow for a verbal update regarding the status of the audit of the
Envision Law Group's billings.
FUNDING: Not applicable
jWS1
Janet Keetir
Depu*j City Manager
APPROVED:
H. Dixon Flynn, City Manager
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RAN,
WTIEN CONFLICTS OF MEREST CANNOT BE WArVED
By Stanley W. Lmport
Cox, Castle & Niebolson, US Angelo: -
The rule itself does not identify any situation in which a client may not consent to a
conflict disclowA in accordance with rule 3-310. Nevertheless, there are certain situations in
which obtainins a client's informed conwm is not possible.
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(1949); 6 Cal,App.2d 598, 605-606 (1935) (reprmntation of stmdio and
actress in conna negotiations),, BASF Formal Opinion No. 1973-26.
B. Men -Client In f Gy'nLoweM - The concept of Wormed consent
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assumes that a client is in a position to undarstznd and ass4ss the lawyer's disclosure and the
consent being sought. When the client lacks the capacity to do so, informed r-onsent is not
possible- See LACBA Formal Opinion No. 471 (1992).
Another exMplc is where intercsts of the lawyer in Lhe subject matter of thi
mprowntation are so great ftt tk lawyer cannot be expected to wmpetway reprewat the
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client. Some of Lhese conflicts are covered by rults that prohibit a lawyer from engaging in
cerWn practices altogether. See e.g. Rule 4-210, (payment of personal or business expenses
incurred by or for a client), Rule 4-300 (purchase of property at foreclosure sale) and Rule
4-40() (inducing a client to make a subswdal gift).
Under Rule 3-310(C)(3), informed written consent is required from both the new and
preexisting client. Consent is also required under the broader common law rule concerning
mprosentations adverse to a cfienrEjaUjy,—����, 9 Caj.4th 274, 285, n.4
EUa suggests, howevcr, that the eircumstanm under which consent may be obtaiaed
is limited, After noting the, gcncral rule that "courts and ethical CQdC4 alike prohibit an
attomey from simultaneously -rcp=wnting two client adversaries, even where the substance
of the reprmntations is unrelated,' the Court stated in a footnote-,
Yet after maJdng this statement, the court went on to state that the exception "is not,
in arty event, one that concerns us in this case." N. Thus, the Court appws to have left
the issue open.
The pamge indicztes that consent may be obWnod only when the two mattm are
unrelated. It thercforc suggests that ft exception allowing for consent may not apply when
the two matters am related. In making dus suggestion, the Court appears to have had in
mind the situation where a lawyer is representing opposing inzmts in the same litigation,
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v-2m at 284. n. 3. It is not clear that the same. limitation would apply when the
two mattors axe factually related but the lawyer is not reps ting opposing interests on the
same, rwject, While Ejaj; emphasized that client Joyaliy is the p�irrwy conc'em, when the
representations are refamd, preservation of client confidences is also a concem.
Tr�m ob:wning the dlenCs �infarmcd %�n�nea o�onsent "cept in the ram circumstance? In
�ddiuianff loyAty is for the CHent's benefit, except in those caw whzrc competent
representation is unbk4y, why should a properly informed cliont be precluded from fr=ly
consenting to an advexse representation?
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