HomeMy WebLinkAbout2023-03-06 J01F_03 Waiver and Consent - Ahlers and CooneyAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: March 6, 2023
AGENDA ITEM:Consideration of approval of a motion approving waiver and consent
with Ahlers & Cooney, P.C.
FORMAT:Motion
SYNOPSIS INCLUDING PRO & CON: The City of Waukee has requested Ahlers & Cooney
represent them on an Agreement for Private Development with Stivers
Iowa Real Estate, LLC and Ed Stivers Ford, Inc (Stivers collectively).
Ahlers & Cooney represents Stivers on other matters unrelated to the
agreement.
Although Ahlers & Cooney do not believe there is a conflict of interest,
they have requested that the City consent to the attached waiver
regarding their work on the agreement.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the motion.
ATTACHMENTS: I. Waiver and Consent – Ahlers & Cooney
PREPARED BY:Jennifer Brown, Director of Economic Development
REVIEWED BY:
PUBLIC NOTICE INFORMATION –
NAME OF PUBLICATION:
DATE OF PUBLICATION:
J1F3
Ahlers & Cooney, P.C.
Attorneys at Law
100 Court Avenue, Suite 600
Des Moines, Iowa 50309-2231
Phone: 515-243-7611
Fax: 515-243-2149
www.ahlerslaw.com
WISHARD & BAILY - 1888; GUERNSEY & BAILY - 1893; BAILY & STIPP - 1901; STIPP, PERRY, BANNISTER & STARZINGER - 1914; BANNISTER, CARPENTER,
AHLERS & COONEY - 1950; AHLERS, COONEY, DORWEILER, ALLBEE, HAYNIE & SMITH - 1974; AHLERS, COONEY, DORWEILER, HAYNIE, SMITH & ALLBEE, P.C. - 1990
March 3, 2023
Sent via email
Jennifer Brown
jbrown@waukee.org
RE: Conflict Waiver
Dear Jennifer:
Recently, we have been asked to represent the City of Waukee (the “City”) with respect to an
Agreement for Private Development Agreement (the “Development Agreement”) with Stivers Iowa
Real Estate, LLC and Ed Stivers Ford, Inc. (collectively, “Stivers”). This work will involve, among
other things, the negotiation, preparation, and approval of the Development Agreement on behalf of
the City. However, our firm also currently represents Stivers on certain matters unrelated to the
Development Agreement (“Stivers Representations”). The purpose of this letter is to inform you that
these representations present an ethical conflict of interest for our firm, and to seek the City’s
informed consent to our representation of the City in this matter.
While the Development Agreement work is not within the scope of the Stivers
Representations, this representation is a concurrent conflict of interest under the ethical standards
governing the practice of law in Iowa. From a legal perspective, a concurrent conflict of interest
exists under Iowa rules if (1) the representation of one client will be directly adverse to another client;
or (2) there is a significant risk that the representation of one or more clients 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. We know that the second condition stated above does not apply to this
situation, as noted above, but our firm’s representation of the City will be directly adverse to Stivers.
The state’s ethical rules allow a law firm to concurrently represent two adverse parties if
(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; (3) the
representation does not involve the assertion of a claim by one client against another represented
by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected
client gives informed consent, confirmed in writing. We believe confidently that our attorneys
will be able to provide competent and diligent representation to each of their affected clients as the
matters being addressed are totally unrelated, the representation is not prohibited by law, and there
will not be an assertion of a claim as described. The purpose of this letter is to seek the written
consent of the City to proceed.
Please be aware that the Rules of Professional Conduct require that we represent all our
clients with diligence and that we protect and maintain their confidences. Accordingly, we will
March 3, 2023
Page 2
not disclose or use any confidential information that we may have acquired about either party to
the other in our prior or ongoing representation of the parties.
In deciding whether to consent, you should consider how our representation as described
above could or may affect you. For example, clients that are asked to waive or consent to
conflicts should consider whether there is any material risk that their attorney will be less diligent
on their behalf due to the conflict. Similarly, clients should consider whether there is any material
risk that their confidential information or other proprietary matters will be used adversely to
them due to the conflict. Although you are not required to do so, we recommend that you seek
the advice of a lawyer outside of our Firm if you have any questions or concerns about whether
you should sign this conflict waiver.
The purpose of this letter is to seek the written consent of the City proceed. We are also
seeking the Stivers’ consent in writing by a separate letter. Although we are asking the parties to
waive this conflict of interest so that we can represent the City in connection with the
Development Agreement, neither party is obligated to do so. If either party objects to the waiver,
we will not undertake work on the matter on behalf of the City.
Please feel free to contact me with any questions or concerns. If you consent to the
concurrent representation, please so indicate below and return a copy of this fully executed letter
to my attention. Thank you.
Very truly yours,
AHLERS & COONEY, P.C.
/s/ Nathan Overberg
Nathan Overberg
March 3, 2023
Page 3
The City Council of the City of Waukee hereby waives and consents to any actual, potential, or
perceived conflict of interest associated with Ahlers & Cooney, P.C.’s representation of the City
with respect to the above referenced transaction, despite the Firm’s representation of Stivers in
other matters.
Dated this ____ day of ______________________, 2023.
ACKNOWLEDGED AND AGREED TO BY:
CITY OF WAUKEE
Mayor
City Clerk
02169465-1\21938-041
6th March