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HomeMy WebLinkAbout6.b. Legal Services - Litigation Matterr CITY OF ROSEMOUNT EXECUTIVESUMMARY FOR ACTION CITY COUNCIL MEETING ATE: October 6, 1992 AGENDA ITEM: Legal Special 3ervices Litigation Matters AGENDA SECTION: New Business PREPARED BY: Stephan Jilk AGENDA TEM 6 Q ATTACM1ENTS : <Mr. Harbison Letters APP VED BY: The City Council has considered the need for special legal counsel in the matter of litigation involving the City and Mr. Mike McDonaugh. The City Council will consider the hiring of Mr. ,Kent Harbison, of the Fredrikson and Byron Law Firm, to represent the City in this matter. RECOMMENDED ACTION:To authorize the hiring of Mr. Kent Harbison to represent the City of Rosemount in the Michael McDonaughjSunrise Builders Supply Case. COUNCIL ACTION: FROM FREDRIKSON & BYRON 10. 2.1992 11:00 P. 2 1100 InternaUOnai CCnUC Y00 Scrond Avenue South Minneapolis. NIN gwn2-3.347 (612) 347-7000 I' REDRI SON & BYRON, P.A. FAX (612) 347-7077 Attorneys At Law Direct DW No. (612) 347-7119 October 1, 1992 Mr. Stephan Jiik City Administrator City of Rosemount 2875 145th Street West P.O. Box 510 Rosemount, MI 55068-0510 Dear Steve: Please pass ori my appreciation again to the members of the City Council for their vote of confidence in indicating their preference to retain me to rvpresent the City and yourself in the above -entitled litigati n. I understand that the Council will be making the final decision on my selection at its next meeting. In anticipation of this action, I thought it might be helpful to expedite the process by providing you the enclosed suggested retainer agreement at the present time. Since the trial has been postponed for only 60 days, time is of the essence, and 1 would like to begin preparation for it as soon as Possible. The enclosed letter agreement is patterned after the standard engagement agreements we use with most new clients. If you prefer a different kind of format or have any concerns about any of the terms of the agreement, please do not hesitate to let me know. If you have your own form that you use for such matters, I would also be happy to use that as well. As I indi services is $203 reduced rate in Rosemount, like the enclosed reu J during my last conversation with you, my normal hourly rate for my hour. I am also willing, however, to represent the City's interests at a ignition of the public service aspect of this matter. I also assume that ly other municipalities, is faced with tight budgetary restraints. Therefore, agreement specifies my hourly rate at $140. FROM FREDRIKSON & BVROF 10. 2.1992 11:01 P. 3 FREDRIKSON & BYR?N, RA. Auorneys At Law Mr. Stephan Jilk October 1, 1992 Page 2 I look forward) to working with you. I hope you and any members of the Council will feel free to contact m any time you have any questions or concerns. Sinccrc y, Kent G. Harbison KGH/dlo/79+33 Enclosure FROM FRE6RIKSON & BVRO10. 2.1992 11:01 P. 4 11U0 lnternutinnpl Centre 400 fiL:vond Avenue South Minneapolis. MN SS402-3347 D �rTT�� TT �v �T �1p P.A.(612) 347-7000 FREDRI JO1y & BARON, PFA?t (G12i 317-7077 Attorneys At Uu' Direct Dial No. (G 12) 347-7119 October 1, 1992 Mr. Stephan Jilk City Administrator City of Rosemount 2875 145th Street West P.O. Box 510 Rosemount, MN 55068-0510 II'm Dear Mr. Jilk: Thank you for selecting us to represent the City of Rosemount and yourself in connection with the litigation ol Michael McDonough V. City of Rosemount, et al. and other matters relating thereto. The purpose of this letter is to describe the basis of that representation. Attorneys' Fees and Ex erg mics 1. Fees. We w ll serve as your legal counsel on the basis of an hourly fee rate. My curren I hourly rate is $203, but, in recognition of the public service, aspect of our representation, we will reduce our hourly rate for this matter to $140. As is often he case in litigation matters, it may be appropriate or necessary from time to tim to use the services of other attorneys or legal assistants at Fredrikson & Byron -but we will hold the hourly rate for all services at $140. 2. E x pj n• You ill also be responsible for paying all costs incurred in the course of this matter. These costs include such things as copying charges, filing fees, depos tion costs, outside investigative services, travel costs, express delivery charges, and fees and expenses of experts when necessary. Miscellaneous and incidental costs such as copying charges, at the discretion of Fredrikson & Byron, may be advanced by the firm and billed to you with your normal monthly billing FROM FREDRIKSON & BYRON 10. 2.1992 11 01 P. 5 FRE'DRIKSON & BYR Attorneys At Law Mr. Stephen Alk October 1, 1992 Page 2 3. costs or en N, P.A. t. Costs such as deposition transcripts, expert witness fees, and other excess of $100 may be billed directly to and paid by you to the person that has provided the service. We will consult with you and obtain your nt regarding the retention of experts or consultants. We typically will bill you on a monthly basis and expect payment within 30 days of r ipt of our invoice. We encoura;;e you to review your invoices each month when you receive them and communicate with us immediately if you have any questions or comments concerning the billing statements or quality of our servi s. Coo2eration of Cityf Emeniount. and Stephan The success of our representation .of you will depend, in part, on our receiving your cooperation with respect to providing us documents, complete and accurate information regarding this matter, the payment of our fees, etc. We look forward to working with you and receiving your cooperation. While we do not anticipate any difficulties in (his regard, as noted below, Fredrikson Byron, P.A. does reserve the right to withdraw from representation of you in the event you do pot cooperate with us ill the handling of this matter. Exports and Investigators As indicated above, we may, with your consent, employ consultants or expert witnesses and investigators to investigate or to opine on the facts surrounding this matter. All such experts or consultants shall report exclusively to Fredrikson & Byron in order to preserve the work product privilege for your benefit. Fees charged by such expert witnesses or consultants shall be billed to and paid directly by you. Based on the information we currently have regarding this matter, we do not anticipate that there will be any need for expert witnesses or consultants. If this position changes, we will contact you immediately for your advice and approval. This agr either you or F services on any Termination Limitations t may be terminated at any time upon reasonable written notice given by ;on & Byron. We shall be. under no obligation to undertake or continue .t and FrWrikson & Byron may withdraw as counsel in any matter: (a) if .r . FROM FREDRIKSON & BYRON 10. 2.1992 11 02 P. 6 FREDRIKSON & BYON, PA. Aunrneys At Law Mr. Stephen Jilk October 1, 1992 Page 3 Fredrikson & Byron legal ethics; (b) if y (c) if you fail to coc deems such services to be in conflict with the interests of another client or >u should fail to make any payment to Fredrikson & Byron when due; or peratta with Fredrikson & Byron. you are free to terminate our services at any time for any reason upon reasonable written notice. If you terminate our representation, you are obligated to pay us for all fees, costs and disbursements incurred up to the time of our termination. If we withdraw or are terminated and you request the ori inal or a copy of our file, you will pay a reasonable photocopying charge for one copy of the file. nflicts of Interest We will be r presenting the City of Rosemount and Stephan Jilk in this matter. Because we are representiny two clients, we must address certain issues raised by this multiple representation. The Rules of Professional Conduct, which govern the professional conduct of lawyers, provide th it a lawyer may represent more than one client in the same matter only if the lawyer reasons ly believes that the representation of each client will not adversely be affected by represe tation of the other client, and the e:lionts consent after consultation. I will discuss each of the a requirements below in the context of representing each client individually in this proceeding. First, we remnably believe that a representation of each of you will not be adversely affected by our representation of both of you in this matter. We understand that neither of you has any claims against the other. If either of you believes that you do have claims against lie other or inconsistent positions, then our belief probably would change and we would be forced to withdraw from presentation of one or both of you. Second, given the circumstances, it is advisable that we represent both of you only if the City and- you consent after consultation regarding this matter. I believe we have already discussed -these issues at the meeting on September 29, 1992, but I encourage you or any member of the City Council to contact me if there are any remaining questions concerning the advantages and risks of our representing both parties. The obvious implication of common representation is that each of you will be acting jointly to some extent in this pro weeding. In other words, you cannot take inconsistent positions in this proceeding although you will be able separately to settle the individual proceedings against either of you. if, at any point in the proceeding, either f you desires to take positions that conflict with that taken by the other, we may be, forced to ithdraw from representing one or both of you. 9I � . FROM FREURIKSON & BVROM 10. 2.1992 11:03 P. 7 FREDR1KSON & BYI Aunrneys At Law Mr. Stephen Jilk October 1, 1992 Page 4 , PA. The advantages of common representation are that the cost of legal services for each of you will be reduced. Another advantage is that you may present a unified front to the plaintiff. Each of you will be' ointly and severally liable for the full amount of attorneys' fees, costs, and disbursements chargedor incurred by our firm. It is our understanding that the City has already agreed to defend and indemnify you in this matter. If this letter meets with your approval, please sign the enclosed additional copy and return it to me. Also, by signing a copy of this letter, you are indicating your consent to the multiple representation described above. We look forward to working with you and thank you again for this opporlunity. Sincer .ly, nso Hnrhi. Kent G. K014/dto/7847o ACCEPTED; Stephen Jilk CITY OF ROSEM UNT By: Its: Dated.