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HomeMy WebLinkAboutRES 347 Draft 01 1998-2000 COUNTY OF HAWAII STATE OF HAWA[`I RESOLUTION NO. 34'7 00 RESOLUTION AUTHORIZING THE CORPORATION COLR~ISEL AND HIS AUTHORIZED REPRESENTATIVE TO ENTER INTO AN AGREEMENT WITH THE INDIVIDUALLY NAMED DEFENDANTS, PARTIES, WHO ARE OR WERE OFFICIALS AND EMPLOYEES OF THE COUNTY OF HAWAII, TO REPRESENT IN THE CIVIL ACTION TANNY,41 CAZL'ffERO V COh:WTY OF HA 1~'AI I, ET AL ,CIVIL :NO 00-l-0384, AND fNDEMTr`IFY THEM FOR ANY AND ALL DAMAGES, INCLUDING PUNITIVE DA_VIAGES ARISING FROM THAT CASE WHEREAS, the County of Hawafi and Chief of Police Wayne G Carvalho, refired, and Sergeant Hyland Char, are being sued m their professional and mdrndual capacity by t'ie PlamUff, Tanny M Cazimero m Crvil No 00-1-0384, and ~~'I-IEREAS, on October 20, 2000, the Hawai'~ County Police Comm~ss~on found that the Chief of Police Can•alho and Sergeant Char, at all times alleged in the complaint, were acting in the course and scope of the performance of their duty pursuant to Sections 52D-8 and ~ 2D-9, Hawaii Revised Statutes, and WHEREAS, the Haw•ai`i County Council concurs with the finding of the Haw•a~`i County Police Commisswn and further finds that whatever involvement Chief of Police Carvalho and Sergeant Char might have had m the above entitled lawsuit, were also done m the scope of their employment, and WHEREAS, the Office of the Disciplinary Counsel of the Supreme Court of the State of Hawaii, has issued an opinion that representaUOn by one attorney of multiple parties to such actions is improper unless those parties waive any potential conflict of interest involved or unless the goventmental entity agrees to mdemntfy all the mdrndual parttes for any potential damages, including punrtrve damages, and WHEREAS, the Hawat`t County Counctl finds that the acts alleged m the complaint, tf occurred, were done m good Earth and the probability of punrtrve damages being adludt:ed is small, and WHEREAS, the Hawaii County Council finds that the payment of punrtrve damages serves a public purpose because tt encourages public service and assures that a plaintiff can collect aludgment, if any, and WHEREAS, the Hawaii County Council further finds that for these reasons, rt is m the public's interest to indemnify [he individually named defendants m flits action for all d,unages that may be assessed, including, but not limited to punrtrve damages, so that the Cotpotation Counsel, fits authonzed representatives or Special Counsel, may represent all the named parttes who are officials and employees, or refired officials and employees of the County of Hawaii, and WHEREAS, the representation by the Corporation Counsel, fits authonzed representatives or Spectal Counsel, of such individually named parttes is not an admission of liability by the Haw•at't County Counctl or the County of Hawat`t, NOVb', THEREFOKE, BE IT RESOLVED BY THE HAWAII COUNTY COLNCIL, that the Cotporatton Counsel, and fits authonzed representattves, is authonzed to enter ~nto an agreement with the individually named parties, who are or are former officials and employees of the County of Hawaii, to carry out the putpose of this resolution, to be executed and provided by law -2- BE IT FURTHER RESOLVED that the Mayor of the County of Hawal`I Is autlionzed to stgn the above-noted agreement on behalf of the County of Hawal'I, pursuant to the Hawat I County Charter DATED Hilo, Hawaf 1, this day of 2000 INTRODUCED BY l ^ Y? I ~ COLTCIL MEMBER, COUP TY OF HAWAII COUNTY COLi\CIL ROLL G4LL bOTE Counh• of Hawai' i Hilo, Hawaii AYES VOES ABS Eh ARAKAKI I hereby certify that the foregoing RESOLUTION was by the cltwG vote mduated to [he right hereof adopted by the COUNCIL of ELARIONOFF [he County of Hawa~'i on IACOBSOV LEITHEAD-TODD ATTEST PISICCHIO SMITH T1 LER tiAGO~G Reference C-9 % 2 CO[JSTY CLERK CHAIIL'v1A\ R PRESIDI\G OFFICER RESOLCTIO'~ \O 34,•i Cazimero a Hawaii County, Wayne G. Carvalho and Hyland Char, Civtl No. 00-1-0384 LDIITED JOINT REPRESENTATION DISCLOStiRE AND CO\SENT On or about October 27, 2000, I met with Ted H S Hong, Assistant Corporation Counsel t"or the County of Hawau We discussed the allegations m the Complaint m [he above case 1 understand that I have been named m my former official capacity as Chief of Police for the County of Hawau and as an individual We also discussed the issue of Joint Representation by the Office of the Corporation Counsel, County of Hawau, of myself, the County and Sergeant Char 1 have had the opportunity to review Rule 1 7 of the Rules of Professional Conduct, State c f Hawau, concerning Conflict of Interest In our meeting we discussed a number of factual situation, concerning a possible conflict of interest behveen myself. the Counh' of Hawau and Serge.mt Char Based on those discussions, and review of Rule 1 7, Rules of Professional Conduct, State of Hawau, I believe rt ~s m my best interests \OT TO W RIVE any actual or potential conflict of interest m the present case Because of the underlying facts which resulted m the Plaintiffs termination, I believe that there may be a potential conflict of interest m this case, which would put me at odds H rth the County of Hawau Accordingly, I request that pursuant to the Hawau County Charter, Section ~-2 5, of the County Charter, County of Hawau (1991). be hired to represent me m [his case After discussing when the Answer to the Complaint ~s due, November 3, 2000, and [ha[ the Hawau County Council has postponed my request for mdemmticanon and authonty to hire Special Counsel until their meeting on or about November 15, 2000, I hereby waive any potential conflict of interest, pursuant to Rule 1 7, Rules of Professional Conduct, State of Hawan, for the sole, limited Irurpose of allowing the Office of [he Corporation Counsel, County of Hawau to file an Answer to the Complaint m this case, and for no other reason or purpose Accordingly, the Office of the Corporation Counsel, Counh' of Hawan, may only file an Answer and Counterclaim on my behalf DATED Hilo, Hawaii, wAYNE G CARVALHO DATED Hilo, Hawan, STEPHEN K YAMASHIRO, MAYOR COU1vTY OF HAWAII Page 1 of 1 Cazimero v. Hawaii County, Ways:e G. Carvalho and Hyland G:ar, Crnl No. 00-1-0384 JOINT REPRESE\TATION DISCLOSURE AND CONSENT Because you have been named m a lawsuit with the County and another County employ ee, i[ is important that you understand the basis upon which the Office of the Corporation Counsel, County of Haw•au, may represent the County and its employees m the same lawsuit Generally, Co-defendants can have differing, and occasionally sharply conflicting, mteiests and objectives m defending a lawsuit For example. each of you could blame the other or artempt to shift responsibility and the amount or percentage of money damages assessed for each iilleged act, to the other defendant One co-defendant may desire to hold other defendants resp~msible for the alleged wrongdoing by seeking documents, statements of other witnesses and other material [o support that contention Further, as part of an attcmpt to shift responsrbrlrty, each co- defendant is entitled to show and argue that the other co-defendant should pay more money damages than he should E3y agreeing to~omt representation, you would not be able to shift responsibility to other named defendants or reduce the any award of money damages a€ainst you by arguing that other co-defendants should be assessed a lareer percentage The Rules of Professional Conduct. State of Hawau, ~a•arns attorneys and protects cliems~ interests by requiring that RULE 1 7 CONFLICT OF INTEREST GENERAL RULE (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless (I) the lawti•er reasonably believes the representation will not adversel}' affect the relationship with the other client, and (2) each client consents after consultation (b) A law~•er shall not represent a client if the representation of that client may be materially limited b}• the lawyer's responsibilities to another client or to a third person, or by the law'yer's own interests, unless (1) the lawyer reasonably believes the representation will not be adversely affected, and (2) the Chen[ consents after consultation ~bhen representation of multiple clients m a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks rmolved Paee 1 of 2 If each of you had your own attorney, you would each have an "advocate" for your pose lion and you would each receive totally independent and confidential advice from your attorney All tnformat~on that you gave to your separate attomey would be confidential That is not the case when one attomey represents both of you ~omtly Our office cannot be an advocate for one of you against the other ~f we represent both of }•ou Information that a ether of you gives to us relating to your defense will be available to the other Our efforts will he to assist you m developing a coordinated overall defense m the present lawsuit and vigorously defend the both of you As to those matters on which your individual interests may morally differ we will attempt to explain to both of you the interests of each of you, and the effect on each of you of a particular course of action Generally speaking, there are clear benefits m cost, efficiency and effectiveness of defending this la++'smt together as opposed to your each having separate attorneys, but rt is important that each of }'ou understands our obl~gat~ons with respect to loin[ representation You mduated a[ our meeting of that you understood [he issues, asks and benefits, and that you are ready to proceed with the defense on a~omt representation basis By signing this document. each of you confines that you have consented to our~omt representation m connection with defending the above entitled lawsuit, been advised of and +v'awe any potential conflict of interest as discussed Any client is entitled at am' tune to decide to seek independent counsel if he chooses to do so Likewise. ~f we conclude that a senous conflwt of interest between the hvo of you has developed or is likely to develop so that our continued representatwn would be mappropnate, we i eserve the tight to notify you that w•e can no longer continue to represent either of you In that event, we will not be obliged to disclose to either of you [he precise reason why we have concluded that we should discontinue representation of both of you [f you are m agreement with our~omt representation as outlined above and as discussed, would you each please sign this document DATED Hdo, Hawau HYLAND CHAR DATED Hilo. Hawau. STEPHEN K YAMASHIRO, MAYOR COLITY OF HAw'AI[ Page 2 of 2