Krieg Devault/CRC/Legal Services KPIEG I DEVAULT. McWV■ FRICGDEVAUITCOM
November 5, 2010 David E.Corbitt
Direct Dial: (317)238-6358
E-mail: dcorbitt@kdlegal.com
Douglas C. Haney, Esq. Les Olds, AIA
Carmel City Attorney Executive Director
I Civil Square Carmel Redevelopment Commission
Carmel, Indiana 46032 30 West Main Street, Suite 220
Carmel, Indiana 46032
RE: Multiple Representation Disclosure and Consent
Gentlemen:
Krieg DeVault LLP (the "Firm) has in the past and currently represents the
Carmel Redevelopment Commission (the "CRC") in respect of certain claims for alleged
defects in construction work on the Carmel Performing Arts Center. We have been asked
to assist the City of Carmel in connection with the negotiation of the Operating
Agreement and related documents relating to the Carmel Energy Center. The Firm's
legal services to be rendered on behalf of the City of Carmel in connection with the
matters described above are referred to herein as the "Legal Services." We are writing
this letter to accomplish the following:
(a) To confirm in writing our disclosure of the nature of our previous and
current representation of the CRC in other matters and our current representation of the
City of Cannel in connection with the performance of the Legal Services;
(b) To explain any potential conflicts of interest which may exist as a result of
such representation of the CRC to perform the Legal Services;
(c) To confirm the consent of the CRC and the City of Cannel to undertake
the representation of the City of Carmel to perform the Legal Services; and
(d) To confirm the agreement and acknowledgment of the CRC and the City
of Carmel that in the event of the development of a dispute or adversarial relationship
between the CRC or the City of Cannel, we may be disqualified from representing either
party absent written consent from each of the CRC and the City of Cannel at the time;
but, in the event not disqualified, we will continue to represent the City of Carmel
throughout the resolution of any such dispute.
ONE INDIANA SOUARE, SUITE 2800. INDIANAPOLIS, IN 46204-2017 T 317.636.4341 F 317.636.1507
111 MERSIAS LAW FIRMS V,OEU)WIOE
l' I<RIEG f DEV/ULT, WWW.KRILGOEVAULT.COM
November 5, 2010
Page 12
I. Nature of Representation.
A. Representation of CRC. We currently represent the CRC in connection
with certain litigation matters. We have not been engaged by the CRC to represent its
interests with respect to the Carmel Energy Center. The only matter which is relevant to
this letter is our prior and current representation of the CRC regarding matters unrelated
to the Legal Services, and specifically the Cannel Energy Center.
B. Representation of the City of Carmel. We have been engaged by the City
of Cannel to provide the Legal Services. Specifically, the City of Cannel has requested
our assistance with the analysis of certain agreements, arrangements and transactions
relating to the Cannel Energy Center and preparation of responses thereto and related
guidance. We also currently represent the City of Carmel with regard to certain matters
unrelated to the Legal Services.
II. Nature of Potential Conflicts.
Rule 1.7 of the Indiana Rules of Professional Conduct (the "RPC") prohibits a
lawyer from representing a client if that representation is: (i) directly adverse to another
client; or (ii)materially limited by the lawyer's responsibilities to another client.
Our representation of the City of Carmel is adverse to the interests of the CRC in
connection with the transaction relating to the Cannel Energy Center. However, we have
not previously and do not currently represent the interests of the CRC in connection with
the Carmel Energy Center transactions. Each of the City of Cannel and the CRC has the
absolute right to undivided loyalty of counsel, without the appearance of a conflict, and
independent professional judgment of our firm.
It is our understanding that the CRC will not seek the advice or counsel of our
firm with regard to the Cannel Energy Center transactions. Because of our previous and
current representation of the City of Carmel and our current representation of the CRC,
we believe it prudent to request that the City of Cannel and the CRC consent to our
representation of the City of Cannel and performance of the Legal Services.
Accordingly, we request that you consent to our current representation of the City
of Carmel and its affiliates in connection with the Carmel Energy Center transactions and
performance of the Legal Services and our representation of the CRC in connection with
matters other than the Cannel Energy Center transactions. By signing and returning to us
the agreement and consent set forth at the end of this letter, you consent to and waive any
conflicts regarding this arrangement, and you further acknowledge our right to withdraw
our representation of either or both of the City of Carmel and the CRC if, in our opinion,
it might violate the RPC. Notwithstanding such waiver and consent, depending on the
circumstances, there remains some degree of risk that we would be disqualified from
representing either party in the event of a dispute. We also recognize that each of the
{ 'i KRIEG I :EV,ULT„ WWW RR,EGOEYAUMST COM
November 5, 2010
Page 13
City of Carmel and the CRC can terminate our respective representation of them at any
time.
To confirm that you have been advised of and consent to our representation of the
City of Carmel by providing the Legal Services under these circumstances, please sign a
copy of this letter and return it to me by fax and regular mail as soon as possible.
Thank you for your understanding and cooperation with regard to this matter. We
will endeavor to pursue consummation of the Transaction in an expeditious and efficient
manner.
Very truly yours,
• C4*
is
David E. Corbitt
READ AND AGREED TO this day of November, 2010.
THE CITY OF CARMEL
on behalf of itself and its affiliates
By:
Printed:
Title:
THE CITY OF CARMEL REDEVELOPMENT
COMMISSION
By: �. :�i
Printed: Lis 3. OLOS
Title: 'oat pmecro,G
KD IM-3076994 1.DOC