To: Board of Directors of the Sonoma County Agricultural Preservation and Open Space District
Department or Agency Name(s): County Counsel
Staff Name and Phone Number: Lisa Pheatt, Deputy County Counsel, 707-565-2421
Vote Requirement: Majority
Supervisorial District(s): Countywide
Title:
Title
Shute, Mihaly & Weinberger LLP Conflict Waiver
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Recommended Action:
Recommended action
Authorize the President of the Board to Execute a Limited Conflict Waiver
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Executive Summary:
In May 2022, County Counsel retained the law firm of Shute, Mihaly & Weinberger LLP (“SMW”) to assist Ag + Open Space with updating its template form of conservation easement for the use in Ag + Open Space negotiations with landowners (“Template Matters”). SMW would like to represent the Save the Redwoods League (the “League”) and Sonoma Land Trust (“SLT”) in pending and future matters in which Ag + Open Space may acquire a conservation easement as part of a transaction in which the League or SLT participates (“Ag + Open Space Easement Acquisition Matters”).
Although no one from the SMW team assigned to work on the Template Matters will be working on the Ag + Open Space Easement Acquisition Matters, the Rules of Professional Conduct require that SMW obtain consent from Ag + Open Space to represent the League and/or SLT in the Ag + Open Space Easement Acquisition Matters.
Discussion:
Shute, Mihaly & Weinberger LLP (“SMW”) previously represented the Sonoma County Agricultural Preservation and Open Space District (“Ag + Open Space”) in matters related to conservation easements, including drafting a template form of conservation easement for the District to use in negotiations with landowners (“Template Matters”). SMW would like to represent the Save the Redwoods League (“League”) in connection with the League’s acquisition of lands known as Silver Estates and subsequent transactions regarding those lands (the “Silver Estates Matter”), which may involve the District acquiring a conservation easement interest in the property. SMW also anticipates representing both the League and Sonoma Land Trust (“SLT”) in future matters in which the District may acquire a conservation easement as part of a transaction in which the League or SLT participates (collectively, including the Silver Estates Matter, “Ag + Open Space Easement Acquisition Matters”).
Given the overlapping subject matter SMW’s past work for Ag + Open Space and its intended work for the League on the Silver Estates Matter, it seems reasonable to assume that in the course of negotiating the business terms or other issues related to the conservation easement, the parties may take differing views on topics like restrictions on use of the property and indemnifications, and may consider compromising their position on certain topics to secure an overall favorable agreement. SMW’s prior advice to Ag + Open Space may affect the District’s positions in the transaction. This same analysis applies similarly to future transactions in which SMW represents the League or SLT, through which the Ag + Open Space would acquire a conservation easement similar to the one anticipated over the Silver Estates property.
Accordingly, SMW is requesting Ag + Open Space provide informed written consent to SMW’s representation of the League in the Silver Estates Matter and in future matters involving the League or SLT that include the conveyance of a conservation easement to the District (“Ag + Open Space Easement Acquisition Matters”).
Given the limited nature of the requested conflict waiver, and the fact that SMW has erected an ethical screen that prohibits the attorneys who worked on the Easement Template Matters from working on the Ag + Open Space Easement Acquisition Matters, County Counsel recommends that your Board authorize the President to approve the requested conflict waiver.
Strategic Plan:
N/A
Prior Board Actions:
None
Fiscal Summary
Narrative Explanation of Fiscal Impacts:
There are not fiscal impacts associated with the requested action.
Narrative Explanation of Staffing Impacts (If Required):
None
Attachments:
Conflict Waiver
Related Items “On File” with the Clerk of the Board:
None