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HomeMy WebLinkAboutBrooks Koch & Sorg/DOL ATTORNEYS y��[ SOR G BROOKS KOCH & SORG www.bksattorneys.com TERRENCE J. SORG DAVID M.BROOKS DIRECT LINE 317/822-3704 L. MICHAEL KOCH E-MAIL tjsorg@bbks-law.com TERRENCE J. SORG t REGISTERED ARCHITECT September 17, 2008 VIA FIRST CLASS U.S. MAIL Douglas C.Haney City Attorney, City of Carmel One Civic Square Carmel, Indiana 46032 RE: Waiver of Conflicts— Joint representation of the City of Carmel, Indiana and Owners of Guilford Reserve—Brownstones of Carmel townhouses("Owners")/Contract Employing Attorneys Dear Doug: The Owners of certain townhouses ("Owners") in the Guilford Reserve — Brownstones of Carmel subdivision development ("Development") have asked the law firm of Brooks Koch & Sorg to serve as counsel in connection with prosecuting claims against Savoy Homes, Inc; and/or Crawford Development, LLC and / or Robert Barbato, individually, (collectively "Defendants") with respect to construction defects, building code violations and other unlawful acts and omissions related to the construction of the townhomes in the Development (the "Litigation"). The City of Carmel, Indiana has also requested our firm to serve as counsel in prosecuting claims against Defendants in the same Litigation as a co-plaintiff for violations of state and local laws. This letter will confirm that you have been informed about the potential conflicts of interest inherent in any representation of two or more entities. It is important that you understand that since this firm would be representing both Carmel and each Owner, that each entity would be our client. A. Conflicts of Interest As we have previously discussed, our representation of each Owner and the City of Carmel in connection with the Litigation has raised certain conflicts of interest because the interests and objectives of each Owner individually are, or may become, inconsistent with the interests of the City of Carmel. For example, as you know, the City of Carmel inspected the construction of the townhomes in the Development and issued Certificates of Occupancy. Independent inspections have identified serious and substantial construction defects and building code violations existing in the respective homes (collectively "construction defects") which will require substantial sums of money to repair and correct. While other conflicts may exist not identified herein, the Owners' interests' conflict with our representation of the City of Carmel with respect to potential or prospective claims that the Owners may have against the City of Carmel based upon the aforementioned inspections and /or other acts or omissions. B. Risks of Multiple Representation Our representation of multiple interests has significant implications which you should consider. Our multiple representation may result in the loss of the attorney-client privilege for communications between 615 RUSSELL AVENUE • INDIANAPOLIS, IN 46225 • TEL: 317/822-3700 • FAR: 317/822-3705 S Douglas Haney/City Attorney/September 17,2008/page 2 you and members of our firm, because anything disclosed by one client on a matter of common interest may be disclosed to a jointly represented client in a civil proceeding between you. Further, in the event of a dispute between an Owner and the City of Carmel, we may be precluded from representing any individual party without first obtaining the consent of all concerned. For these reasons, our normal practice in these circumstances is to represent only one party. However, you have advised us that you do not wish to seek other counsel at this time and, instead, you desire that we represent your multiple interests in connection with the Litigation. Accordingly, we are requesting the City of Carmel to sign this informed consent to our joint representation of the Owners and the City of Carmel waiving all conflicts respecting our joint representation. We are also requesting the Owners to execute a similar waiver of conflicts provision a copy of which has been provided to you. In addition, we are requesting each Owner to sign the WAIVER AND RELEASE—the form of which you have been provided and approved. The City of Carmel, in consideration for each Owner executing the WAIVER AND RELEASE, has agreed to pay our firm all of the fees and expenses reasonably required to prosecute claims at the trial court level against Defendants on behalf of the City of Carmel and the Owners in the Litigation. The WAIVER AND RELEASE is expressly conditioned upon, and shall not become effective until, a written agreement is executed between our law firm and the City of Carmel authorizing our firm to proceed with the prosecution of Defendants in the Litigation. C. Rules of Professional Conduct As you know, we are governed by specific rules relating to our representation of clients when present or potential conflicts of interest exist. Rule 1.7of the Model Rules of Professional Conduct provides as follows: Rule 1.7. Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists 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. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client 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 client 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. BROOKS KOCH & SORG 615 RUSSELL AVENUE • INDIANAPOLIS,IN 46225 •TEL: 317/822-3700 • FAX: 317/822-3705 Douglas Haney /City Attorney/September 17,2008/page 3 Accordingly, we request an authorized official of the City of Carmel to sign and return to us a copy of this letter, acknowledging that: 1. The City of Cannel has been advised of Rule 1.7 and of the conflicts associated with our joint representation of the City of Carmel and Owners in the Litigation; and 2. You nevertheless want us to represent the City of Carmel in connection with the matters discussed above. Please sign and return the enclosed copy of this letter. By signing and returning the letter the City of Cannel is acknowledging that its authorized representative has read and understands this letter and that the City of Carmel consents to the matters set forth herein. In addition to the foregoing, we are providing the City of Carmel a"Contract Employing Attorney" enclosed with this letter for your review and execution. The contract contains language indicating that the City of Cannel has agreed to pay the attorney fees and expenses associated with the Litigation on behalf of the City of Carmel as well as the Owners. Should you have any questions about this letter or the consent, please advise. Very truly yours, Brooks Koch & Sorg � I Terrence J. Sorg, Attorney at Law Encl. Signed and Accepted this �3 day of September, 2008: 175"6-u-glas_Catan4, City Attorney, City of C iniel, Indiana BROOKS KOCH & SORG 615 RUSSELL AVENUE• INDIANAPOLIS, IN 46225 •TEL: 317/822-3700 • FAX: 317/822-3705 CONTRACT EMPLOYING ATTORNEYS The City of Carmel, Indiana("Client"), hereby employs the law firm of BROOKS KOCH& SORG ("Attorneys"), duly admitted and practicing attorneys in the State of Indiana, to prosecute by lawsuit the claims of said Client as co-plaintiff with the Owners of certain townhouses ("Owners") in the Guilford Reserve—Brownstones of Carmel subdivision ("Development") against Savoy Homes, Inc; and/or Crawford Development, LLC and/or Robert Barbato, individually, (collectively"Defendants") with respect to construction defects, building code violations and other violations of state and local laws and ordinances (the "Litigation"). Attorneys will work at the rate of$275.00 per hour for all attorney hours billed for the representation hereunder up to and including time billed 60 days prior to trial. All time billed after 60 days prior to the scheduled trial, including, but not necessarily limited to, trial preparation, trial briefs, conducting the trial itself and the filing of any post-trial briefs, shall be billed at$325.00 per hour. Client has agreed to pay all reasonable legal fees and expenses for the Owners with respect to the Litigation. Unless prohibited by Court order,the City of Carmel agrees to continue to pay all reasonable legal fees and expenses through the conclusion of trial so long as any claims of any party remain pending- - even if the City of Carmel has been dismissed from the Litigation. Reasonable attorney's fees and costs shall be recoverable by Attorneys in connection with negotiation, settlement, or any action to enforce payment of fees pursuant to this Contract. Statements will normally be prepared and mailed during the first week of the month following the month in which services are rendered and are due within thirty-five(35) days of receipt. The statement will reflect the hourly rates and an itemized accounting of time spent working on the file, described in reasonable detail and in one-tenth hour increments. The hourly rates will not change during this engagement. This agreement shall not constitute the Client's consent to nor cover the fee structure for any appeals, which shall be the subject of negotiations and mutual agreement of the parties hereto. In addition to the foregoing, Client agrees to pay for reasonable out-of-pocket expenses and disbursements of counsel incurred on Client's behalf including and without limitation, the following: a. Court filing and statutory witness fees. b. Consulting and Expert fees (after consultation with Client only). c. Deposition costs, including court reporter fees, transcript fees. d. The actual cost of color photocopying and photograph and videotape development and duplication and all copying/reproduction that is not completed by our law firm internally. Unless prohibited by Court order, the City of Carmel agrees to continue to pay the above identified out-of- pocket expenses related to the Litigation through the conclusion of trial so long as any claims of any party remain pending-- even if the City of Carmel has been dismissed from the Litigation. Out-of-pocket expenses will be billed on our monthly statement and are also due within thirty-five (35) days of receipt. Client understands that all expenses in the preparation and trial of the case occasioned by the taking of depositions, court costs, obtaining attendance of witnesses, printing of briefs, and other necessary expenses of litigation will be borne by Client regardless of the outcome of the litigation. Any unreasonable failure to pay the sums set forth above shall be deemed ground for withdrawal as counsel. 1 Either party shall be free to terminate this arrangement at any time. In such event, Client will be responsible for all reasonable fees, expenses, and disbursements incurred through the date of termination and Attorneys will work with Client to effect an orderly transition to other counsel. Any termination by Attorneys will be consistent with the then-applicable Code of Professional Responsibility. It is agreed that Attorneys have given no guarantee concerning the results of Client's claims or the outcome of the Litigation and all expressions of counsel are matters of opinion only. Client has read and understands this agreement. The undersigned Client agrees not to compromise any claim covered by this Contract without the written consent of Attorneys, and Attorneys, likewise, are not authorized to compromise any claim covered by this Contract without the written consent of Client. The undersigned Client agrees to cooperate in the preparation and trial of this claim, to appear on reasonable notice for depositions and court appearances, and to comply with all reasonable requests made by Attorneys in connection with the preparation and presentation of this claim. The undersigned is an authorized representative of the City of Carmel and hereby acknowledges and agrees that upon execution, this instrument shall be a valid and binding agreement upon the parties and is enforceable according to its terms which are not in contravention of law. ii ALL OF WHICH IS SO AGREED this 3 day of , - sitki-- 2008. a City of Carmel By: (--__._.Dnug_las-C-Haney, City Attorney Attorneys hereby accept the foregoing engagement. BROOKS KOCH& SORG By: `SC, Authorized agent of BROOKS KOCH& S RG 2