Legal Representation LetterBarry A. Lindah/, Esq.
Corpora~inn Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesq~mwci.net
June 11, 2002
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
RE: City of Dubuque Representation
Dear Mayor and Council Members:
In response to concerns that have been raised about the City's legal representation by
Les Reddick and representation by other members of his firm of clients' whose interests
may at times be adverse to the City, I have researched the conflicts of interest issue
further. The purpose of this letter is to provide you with my thoughts on the matter. I
have also discussed the matter further with Les to satisfy myself that we both have the
same understanding of his representation of the City. Enclosed is a letter I intend to
send to Les setting out my understanding of that relationship.
The issue of conflicts of interest is covered by Canon 5 of the Iowa Code of Professional
Responsibility for lawyers. Canon 5 provides that, "A lawyer should exercise
independent professional judgment on behalf of a client." Underlying the Canon are a
number of ethical considerations, the more significant of which are set out below.
First, the professional judgment of a lawyer should be .exercised, within the bounds of
the law, solely for the benefit of the client and free of compromising influences and
loyalties. The interests of other clients should not be permitted to dilute a lawyer's
loyalty to a client. The Code of Professional Responsibility explains that maintaining the
independence of professional judgment required of a lawyer precludes the acceptance
or continuation of employment that will "adversely affect the lawyer's judgment on behalf
of, or loyalty to, a client." The problem arises whenever a lawyer is asked to represent
two or more clients who may have differing interests. The Code further provides that if
a lawyer is requested to undertake or continue representation of multiple clients having
potentially differing interests, the lawyer must weigh carefully the possibility that the
lawyer's judgment may be impaired or loyalty divided if the employment is accepted or
continued. In those instances in which a lawyer is justified in representing two or more
clients having differing interests, it is nevertheless essential that each client be given the
opportunity to evaluate the need for representation free of any potential conflict and to
obtain other counsel if desired. Thus before a lawyer may represent multiple clients, the
Service Feople Integrity Responsibillty InnovaQon Teamwork
lawyer should explain fully to each client the implications of the common representation
and should accept or continue employment only at the client's consent.
The Code further provides that except with the consent of the client after full disclosure,
a lawyer shall not accept employment if the exercise of the lawyer's professional
judgment on behalf of the client "will be or reasonably may be affected by the lawyer's
own financial, business, property, or personal interests."
The Restatement of the Law (3rd), The Law Governing Lawyers, provides additional
guidance on the conflicts of interest subject. The Restatement prohibits a lawyer from
representing clients with conflicting interests unless all affected clients consent. The
Restatement defines a conflict of interest as "a substantial risk that the lawyer's
representation of the client would be materially and adversely affected by the lawyer's
own interests or by the lawyer's duties to another current client, a former client, or a
third person." (Emphasis added) The Restatement addresses the underlying rationale
for the conflicts of interest prohibition. First the law seeks to assure clients that their
lawyers will represent them with undivided loyalty. A client is entitled to be represented
by a lawyer whom the client can trust. Second, the prohibition against conflicts of
interest seeks to enhance the effectiveness of legal representation by avoiding a
situation where the lawyer is inhibited from working with appropriate vigor in the client's
behalf. Third, a client has a legal dght to have the lawyer safeguard the client's
confidential information and to prevent the use of such information against the interests
of the client.
The Restatement also emphasizes that "avoiding conflicts of interest can impose
significant costs on lawyers and clients. Prohibition of conflicts of interest should be no
broader than necessary." The Restatement points out that conflict avoidance can make
representation more expensive since one or both clients would be required to find other
lawyers if the conflicts of interest rule were strictly applied. Second, one of the clients
might be depdved of the services of a lawyer whom the client had a particular reason to
retain, perhaps on the basis of a long-time association with the lawyer. The
Restatement also notes that, "In some communities or fields of practices there might be
no lawyer who is perfectly conflict-free." The Restatement also notes that conflicts
prohibitions interfere with lawyers' own freedom to practice according to their own best
judgment of appropriate professional behavior. It is appropriate to give significant
weight to the freedom and professionalism of lawyers in the formulation of legal rules
governing conflicts.
Les Reddick has been defending the City, primarily in commercial and tort litigation,
since the 1970's. Over that pedod of time, other members of his firm have had
business before the City Council and vadous City boards and commissions, including
such matters as zoning, real estate, real estate taxes, condemnation and other business
matters. I do not recall any instance in all that time when Les' professional judgment on
behalf of the City was, in my opinion, affected by representation of other clients by other
members of his firm. Les is not involved in any of those other matters nor do other
members of his firm take any actions against the City in areas where Les is retained to
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represent the City. In short, I do not recall any instance where a "true conflict of
interest" as defined by the Restatement has ever occurred. There has never been to
my knowledge a "substantial dsk" that Les' representation of the City would be
"materially and adversely affected" by the duties that other lawyers in his firm owed to
other clients.
So long as Les accepts the conditions of the attached letter of engagement, I see no
reason for any change with respect to Les' representation of the City.
~e~_ sincerely,
Barry A. Lindahl
Corporation Counsel
Enclosure
CC:
Michael Van Milligen, City Manager
Les Reddick, Esq.
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DRAFT
June 11, 2002
Les Reddick, Esq.
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
RE: City of Dubuque Representation
Dear Les:
The purpose of this letter is to clarify my understanding of your representation of the
City in certain legal matters.
Over the years, the City has sought representation by you in certain matters
notwithstanding that the City is aware that your firm also has clients who appear before
various City boards and commissions, including the City Council, with respect to zoning,
real estate, real estate taxes, condemnation and other business matters. The matters
on which we will generally seek your counsel involve commercial and tort litigation.
You have been retained to represent the City, usually through the City's insurer, the
Iowa Communities Assurance Pool, in defense of a number of lawsuits with the
understanding that you will personally appear on behalf of the City in that litigation. You
have also been retained directly by the City in other matters, such as in the case of IBP
vs. FDL and most recently in City of Dubuque vs. Yaggy Colby Associates, again with
the understanding that you will personally serve as the City's legal counsel in those
matters. It is the City's intent that your representation in such similar matters will
continue.
The City acknowledges that on a number of occasions, other members of your firm
have represented other clients whose interests are sometimes adverse to the interests
of the City. The City has no objection to other members of your firm representing clients
with regard to City matters including zoning, real estate, real estate taxes and other
related business matters since you have not and will not be involved on the City's behalf
with respect to any of those matters. Such matters, in my judgment, do not, and have
not directly or indirectly compromised in any way your ability to represent the City in
those areas in which you are retained on behalf of the City. We understand that your
firm has not, does not and will not take any actions against the City in those areas.
It is my understanding that you have and will maintain the confidences of the City within
the firm.
I would appreciate it if you would acknowledge that the foregoing is a correct statement
of our agreement.
Very sincerely,
BAL:tls
Barry A. Lindahl
Corporation Counsel
CC;
Mayor Terrance Duggan and
Members of the City Council
Michael Van Milligen, City Manager