Loading...
HomeMy WebLinkAboutCOM 0009.004 2014-20161003 5:��, S,,'e 2300 3ornla!u HI 968 3 Fho,e 808.524.5644 Fox 868.599.188 i II f,IAlilI1 11 i Oel Bronster Hoshibata ,1 <, February 3, 2015 County Council - -, County of Hawaii -- 25 Aupuni Street, Suite 1402/2402 ? Hilo, Hawaii 96720 ci - Re: Hawaii Floriculture and Nursery Association et al. vs. County of Hawaii, Civil NO. 14 -1 -00267 BMK Dear Councilmembers: We represent the Plaintiffs in this case. We are writing in response to Earthjustiee and Center for Food Safety's ( "CFS ") letter to the County Council dated January 27, 2015. The letter contains many inaccuracies and flies in the face of ethical considerations. We therefore urge the County to reject hiring Earthjustice and CFS to represent the County because of the ethical violations inherent with this representation. We highlight a few issues of particular concern below. Issue 1 - May CFS "represent" the County and /or Participate in the Appeal? Answer - No. A. CFS is not a law, firm. Rule 6(e) of the Rules of the Hawaii Supreme Court ( "HRSC ") states that "[a] lawyers' professional business organization shall be organized only for the purpose of rendering legal services and services ancillary thereto." CFS' website confirms that CFS is not a law firm. The website states: CFS is a national non - profit public interest and environmental advocacy organization working to protect human health and the environment by curbing the uses of harmful food production technologies and by promoting organic and other forms of p Comm. No. %' Ref. To: Ref. Date FFS 4 2015 County Council County of Hawaii February 3, 2015 Page 2 sustainable agriculture. CFS also educates consumers concerning the definition of organic food and products ... CFS may not, therefore, represent the County. Rule 1.13(a) of the Hawaii Rules of Professional Conduct ( "HRPC") states that "[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." CFS's lawyers may only represent CFS. B. CFS' Participation Would Violate Two Court Orders. Previously, in the federal court proceeding now on appeal, the District Court denied intervenor status to CFS. CFS may not circumvent this order by seeking to "represent' the County. In the related state court proceeding, the Circuit Court for the Third Circuit entered an Order that enjoins the County from disclosing certain highly sensitive business information. CFS may not circumvent this order by seeking to "represent" the County. Issue 2 - Mav Earthiustice Renresent the Countv? Answer - No Rule 1.7(a) of the HRPC states: "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:... 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." A concurrent conflict of interest may be undertaken if the lawyer reasonably believes each client will be competently and diligently represented, the representation is not prohibited by law and the representation does not involve the assertion of claims by the concurrently represented clients against each other." HRPC 1.7(b). Earthjustice's proposed representation of the County is a prohibited concurrent conflict of interest. There is, without doubt, a significant risk that its representation of the County would be materially limited by Earthjustice's responsibilities to CFS or other present or former clients, and /or by Mr. Achitoff's own personal interests. No reasonable lawyer would believe the County's interests would not inevitably be subverted to these other interests. It bears noting that, with respect the Maui GMO ordinance, Mr. Achitoff has been sharply critical of Maui County's litigation position, claiming the County has violated its duties to the voters. County Council County of Hawaii February 3, 2015 Page 3 It is not correct to equate the litigation positions of the County and CFS. The County is a government entity charged with serving all citizens including those who oppose Bill 113. As with any County law, only the County will have the right and duty to enforce Bill 113 if it is deemed valid. No advocacy group is in a comparable position. More critically, only the County has standing to appeal the District Court's order invalidating Bill 113. See Hollinsworth v. Perry, 133 S. Ct. 2652, 2663 (2013) (dismissing appeal by proponents of a ballot initiative of a decision invaliding the resulting the ordinance for lack of standing). Earthjustice's representation of CFS in this case and the others regarding county ordinances restricting cultivation of genetically modified crops raises an unwaivable conflict of interest that precludes its service as counsel for the County regarding Bill 113. Issue 3 - May Either Earthiustice or CFS Fund the Anneal? Answer - No. A. A Charity's Loyalty May Not Interfere With a Representation. Earthjustice and CFS claim their legal fees in representing the County will be provided at no cost to the County. The cost of these legal services will be covered by Earthjustice or CFS. HRPC 1.8(1) states: "[al lawyer shall not accept compensation for representing a client from one other than the client unless ... (2) there is no interference with the lawyer's independence of professional judgment or with the client - lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. As tax- exempt non -profit organizations, CFS and Earthjustice owe a duty of loyalty to act in the interest of their charities alone. See IRS Compliance Guide for 501(c)(3) Tax- Exempt Organizations, available at www.irs.gov/pub/irs- tegeZgovernance practices.pdf. They may not, without violating ethical rules or threatening their tax -free status, provide free legal services to the County to appeal the District Court's invalidation of Bill 113. No proposal has been made or is possible for protection of confidential information to adversaries' counsel that would result if the County were to be represented by Earthjustice or CFS. A. The Proposed Representation Would Violate Procurement Law. The County must comply with Haw. Rev. Stat. § 103D, the Hawaii Public Procurement Code (the "Code "). Section 10313-304 of the Code governs procurement of professional services. It provides, among other things, that "[c]ontracts for professional services shall be awarded on the basis of demonstrated competence and qualifications for the type of services required, County Council County of Hawaii February 3, 2015 Page 4 and at fair and reasonable prices." § 103D- 304(a). A notice must be published "inviting persons engaged in providing professional services which the agency anticipates needing ... to submit current statements of qualifications and expressions of interest." § 103D- 304(b). A selection committee designated by the head of the County's purchasing agency "shall review and evaluate all submissions and other pertinent information, including references and reports, and prepare a list of qualified persons to provide these services." § 103D- 304(c). The selection criteria and their order of importance are statutorily proscribed. § 103D- 304(e). The head of the purchasing agency or designee "shall negotiate a contract with the first ranked person, including a rate of compensation which is fair and reasonable, established in writing, and based upon the estimated value, scope, complexity, and nature of the services to be rendered." § 10313- 304(h). These are only some of the statutory requirements that apply to the hiring of outside counsel by the County. Each will be violated if the County accepts the unsolicited offers of free representation by CFS or Earthjustice to represent the County in its appeal of the District Court's invalidation of Bill 113. B. The Counsel Seeking to Represent the County Have Improperly Solicited Business and Made Misleading Representations. On a final note, the County should be wary of engaging counsel who take Hawai'i's ethical rules lightly. Certain communications by lawyers to solicit business are prohibited in our state. HRPC Rule 7.3(a) states: "[a] lawyer shall not by in- person, live telephone or real -time electronic contact, solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted has a family, close personal, or prior professional relationship with the client." Someone will be paying for the legal services that Earthjustice and CFS offer to the County for free. HRPC 7.1 states: "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." On CFS's website, the public is urged to submit a letter to the County urging acceptance of free legal counsel from CFS and Earthjustice because "[[]heir expertise and winning track record are unmatched in this field." A claim is false or misleading if it "is likely to create an unjustified expectation about results the lawyer can achieve" or "compares the lawyer's services with other lawyer's services [and cannot) be factually substantiated." HRPC 7.1(b) -(c). These ethical violations are one more reason the County should decline any and all offers of assistance from CFS and Earthjustice. County Council County of Hawaii February 3, 2015 Page 5 Thank you for your time and consideration to this critical matter. Please contact me in the event that you have any questions. Very truly yours, Marge onst e cc: Katherine Garson, Esq.