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HomeMy WebLinkAbout2023-10-02 J01K Waiver and Consent_Ahlers and CooneyAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: October 2, 2023 AGENDA ITEM:Consideration of approval of a motion approving waiver and consent with Ahlers & Cooney, P.C. FORMAT:Motion SYNOPSIS INCLUDING PRO & CON: Ahlers & Cooney represents both the City of Waukee and Central Iowa Hospital Corporation (Unity Point). The City is currently in discussions with Unity Point related to a development agreement which Ahlers & Cooney would prepare on behalf of the City. The work done for Unity Point by Ahlers & Cooney is unrelated to the proposed development agreement and specifically relates to compensations matters. Although Ahlers & Cooney does not believe this is a conflict of interest, they have requested that the City consent to the attached waiver regarding Ahlers & Cooney and 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:Brad Deets, City Administrator REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: J1K 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 Nathan J. Overberg 515.246.0329 noverberg@ahlerslaw.com September 27, 2023 Sent via email: bdeets@waukee.org Brad Deets City Administrator City of Waukee 204 West Hickman Road Waukee, IA 50263 Dear Brad: You recently asked us to represent the City of Waukee, Iowa (the “City”) in relation to the proposed Development Agreement with Central Iowa Hospital Corporation (“Central Iowa Hospital”). In the course of our Firm’s representation of the City, we expect we will be asked to prepare the Development Agreement in which Central Iowa Hospital would be the entity opposite the City. The purpose of this letter is to let you know that our firm also currently represents Central Iowa Hospital on certain matters unrelated to the Development Agreement; specifically, workers’ compensation matters (“Central Iowa Hospital Representations”). The purpose of this letter is to inform you that the proposed representation of the City and the Central Iowa Hospital Representations present an ethical conflict of interest for our firm, and to seek the consent of the City before proceeding with the work. While working on the Development Agreement is not within the scope of the Central Iowa Hospital Representations, it does create 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, but our firm’s representation of the City on the matter will be directly adverse to the Central Iowa Hospital, a current client. 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 Page 2 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. We are requesting the same from Central Iowa Hospital. 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 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. Please feel free to contact me with any questions or concerns. If the City consents 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. NJO: mp cc: Jennifer Brown, Director of Economic Development Page 3 The City Council of the City of Waukee, Iowa waives and consents to any actual, potential, or perceived conflict of interest associated with Ahlers & Cooney, P.C.’s representation of the City of Waukee, Iowa with respect to the above-referenced Development Agreement due to the separate Central Iowa Hospital Corporation Representations. Dated this ___ day of _______________, 2023. CITY OF WAUKEE, IOWA By: ____________________________________ Mayor By: ____________________________________ City Clerk 02259586-1\21938-041