HomeMy WebLinkAboutCity of SLO - Advance Conflict Waiver Letter Re Equinor Project-c161835.00001\42156741.1
Elizabeth Wagner Hull
Partner
(949) 263-2608
elizabeth.hull@bbklaw.com
Best Best & Krieger LLP | 18101 Von Karman Avenue, Suite 1000, Irvine, California 92612
Phone: (949) 263-2600 | Fax: (949) 260-0972 | bbklaw.com
March 29, 2024
Mr. Derek J. Johnson
City Manager
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Re: Request for Advance Conflict Waiver
Dear Mr. Johnson:
Best Best & Krieger, LLP (“BBK”) has represented the City of San Luis Obispo (“City”)
on various matters such as, but not limited to cannabis regulation and other litigation matters. BBK
was placed on the City’s on-call outside counsel panel the last several years. Recently, BBK’s
placement on the City’s on-call outside counsel panel has been renewed for the period of 2024-
2029. It is possible the City may request BBK to represent the City on new matters as part of being
on the on-call outside panel (collectively, the “City Matters”). Although BBK is not representing
the City on any current matters, we are requesting for an advance conflict waiver from the City as
described below should a conflict arise in the future between the City and another BBK client,
Equinor.
BBK is providing legal representation to Equinor, including its current and future affiliated
entities. Currently, those entities include Equinor US, Equinor Wind US LLC, and Equinor
Operations US LLC. Collectively Equinor, and the affiliates described above along with Equinor’s
future affiliates are collectively referred to in this letter as “Equinor”. BBK is, and will be
providing legal advice and representation to Equinor concerning the development of an off-shore
wind project (the “Project”). The Project includes, but is not limited to, the siting of off-shore
wind turbines, associated transmission/electrical lines, additional Project features, mitigation
measures necessary for Project development, and shore-based improvements and developments
that may be required to allow the development, construction, and operation of the Project over the
long-term. Siting for the Project is still undergoing feasibility and environmental review at the
federal and state levels, but it is anticipated that at least a portion of the Project will be located at
off-shore and on-shore locations in central California, likely including areas within or adjacent to
portions of the City.
BBK’s prior work for the City are unrelated to the Project. As part of this conflict waiver
letter, BBK cannot represent the City on any matters related to the Project. Even though the Project
and the City Matters are unrelated, the California Rules of Professional Conduct prohibit us from
representing two current clients with adverse interests, even if they are adverse in separate
unrelated matters, without informed written consent. We do not believe there is any current
adversity between the City and Equinor concerning the Project. However, it is possible that
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adversity might develop in the future between the City and Equinor on the Project. This letter is to
advise you of the conflict(s) of interest that may arise if we agree to represent the City on the City
Matters, and the City and Equinor become adverse to each other concerning the Project. We
request the City’s advance waiver of any conflict that may arise between the City and Equinor on
the Project so that we may continue to represent both in those circumstances without seeking
further informed consent.
RULES OF PROFESSIONAL CONDUCT
Rule 1.7 of the California Rules of Professional Conduct provides in pertinent part:
(a) A lawyer shall not, without informed written consent* from each client and
compliance with paragraph (d), represent a client if the representation is
directly adverse to another client in the same or a separate matter.
(b) A lawyer shall not, without informed written consent from each affected
client and compliance with paragraph (d), represent a client if there is a
significant risk the lawyer’s representation of the client will be materially
limited by the lawyer’s responsibilities to or relationships with another
client, a former client or a third person, or by the lawyer’s own interests.
. . .
(d) Representation is permitted under this rule only if the lawyer complies with
paragraphs (a), (b), . . . and:
(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; and
(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.
SCOPE OF REPRESENTATION & DISCLOSURES
We do not believe that a conflict currently exists between the City and Equinor. If you
believe there is a current conflict, please contact me immediately so that we can address that issue.
It is possible that conflicts may arise between the City and Equinor in the future due to the Project.
Although we cannot predict all potential circumstances which could create a conflict between the
City and Equinor, in this letter we describe what we believe are the reasonably foreseeable
circumstances that may arise.
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We have been asked to assist Equinor with analysis, entitlement, licensing, permitting,
right-of-way, and other services involving the permitting, construction, and operation of the
Project, with an emphasis on California and local agency permitting. Equinor may also request
that we provide advice and representation concerning land use and zoning applications. This work
is also anticipated to include the defense of litigation and/or administrative proceedings that may
challenge the Project – whether those actions/proceedings are filed directly against Equinor or in
connection with regulatory agency or local agency permitting processes. Part of this work will
include representing Equinor in processes under the California Environmental Quality Act
(“CEQA”), the California Coastal Act, and other state/local agency permitting processes.
Although we understand that the City is, and will continue to, evaluate its position
regarding off-shore projects as the process moves forward, we want to make the City aware of our
representation of Equinor and its potential consequences for the City, if we are to concurrently
represent the City on the unrelated City Matters. BBK’s representation of Equinor and our work
on the Project may result in us taking positions contrary to a position of the City, and may involve
BBK directly advocating for outcomes adverse to the City’s position. In some circumstances, it
could even involve BBK representing Equinor in litigation against the City. As examples:
1.Although Equinor will not be the “lead agency” for purposes of CEQA analysis,
BBK will be assisting Equinor with the analysis of the Project’s potential
environmental impacts (including any within the City), with the evaluation of
potential mitigation for those impacts, and with the evaluation of potential
alternatives to the Project. The City may disagree with the conclusions that are
ultimately reached in the environmental analysis, and/or the extent and scope of
mitigation imposed for those impacts or the alternatives considered.
2.BBK will be assisting Equinor with responding to comments submitted on the
environmental analysis under CEQA and potentially the National Environmental
Policy Act. If the City submits comments, that means that BBK would be assisting
Equinor with the review and potential response to the City’s comments.
3.BBK will be assisting Equinor with processing permits under the Coastal Act, the
California Endangered Species Act, and numerous other laws. To the extent that
the City submits comments in those processes or pursues administrative
proceedings before those entities, BBK would be assisting Equinor with responding
to the City’s comments.
4.To the extent that the City files litigation or an administrative proceeding in
opposition to any aspect of the Project, BBK may be representing Equinor in the
defense/opposition to the City’s claims. BBK may also be asked to intervene in
litigation or administrative proceedings in support of Equinor and the Project, even
if the litigation or administrative proceeding does not directly name Equinor.
5.BBK may be asked to represent Equinor, as the applicant, on permits or approvals
that are needed from the City. Similarly, BBK may be asked to represent Equinor
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on right-of-way needs and/or public benefit and mitigation negotiations leading to
potential contracts between Equinor and the City. Thus, BBK may be attending
meetings on Equinor’s behalf, negotiating with the City’s team to seek terms and
conditions favorable to Equinor, and/or attending public hearings before the City
on Equinor’s behalf. It is conceivable that BBK might represent Equinor in
litigation against the City over permit or other denials.
We do not believe our representation of Equinor will impair our competency, diligence or
loyalty to the City nor will it otherwise materially limit our representation of the City in the City
Matters or impair our independent professional judgment in any way. For example, we do not
believe we will be tempted to favor the interests of one client over the other, nor do we think the
relationship will create any appearance of impropriety. Nevertheless, the City might find it
disruptive to be negotiating against or litigating against attorneys from BBK, while other BBK
attorneys are representing the City in the City Matters. It is also possible that constituents of the
City might criticize the City for having BBK represent the City, while BBK is representing Equinor
on the Project. The City should consider these potential consequences as well as the circumstances
described above before agreeing to sign this advance waiver letter.
In the event that circumstances change or we become aware of new information that
requires notice to the City, we will promptly notify you. If an actual conflict of interest develops
in the future or if the relationship should materially limit our representation of either client, we
may be required to terminate our representation of the City, which could impact your attorneys’
fees and costs should you need to hire new counsel at that time.
YOUR CONSENT
If you wish BBK to represent the City in the City Matters , please sign this consent letter.
This consent will not waive any protection that you may have with regard to attorney-client
communications with us in your matter. Those communications will remain confidential and will
not be disclosed to any third party without your consent.
Please consider this matter carefully, and do not hesitate to contact us if you have any
questions or concerns. You may wish to confer with independent legal counsel regarding this
disclosure and your consent, and you should feel free to do so.
Your execution of this consent form will constitute an acknowledgment of full disclosure
in compliance with the requirements of Rule 1.7 of the California Rules of Professional Conduct
previously quoted in this letter, and your consent to proceeding with our representation of you.
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If you have any questions, please do not hesitate to call.
Sincerely,
Elizabeth Wagner Hull
of BEST BEST & KRIEGER LLP
CONSENT
By this letter, Best Best & Krieger LLP has explained the reasonably foreseeable potential risks
and conflict(s) of interest in the above referenced matter, and has informed me of the possible
consequences of this representation and these conflicts. I understand that I have the right to and
have been encouraged to consult with independent counsel before signing this consent, and I
acknowledge that I have been given sufficient time to do so. Notwithstanding the foregoing, I
hereby agree to be represented by Best Best & Krieger LLP and consent to the firm’s representation
of Equinor at the same time as described in the letter, including specifically the advance waiver of
any conflicts which arise between the City and Equinor concerning the Project.
By:
Dated:
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