On June 11, 2019, the Board of Supervisors approved a contract for state legislative advocacy services with Nossaman LLP, subject to approval as to form by County Counsel. A copy of the board order is attached as Attachment A. (The RFQ for State Legislative Advocacy services indicated that the contract period would be for three years, with two single year renewal options possible.)
According to their RFQ response, Nossaman LLP, a limited liability partnership in existence since 1942, has more than 170 attorneys and public policy advisors across eight different offices located in Sacramento, Los Angeles, San Francisco, Irvine, San Diego, Seattle, Austin, and Washington D.C. The advocacy services for the County would be provided out of their Sacramento offices. Ashley Walker and Jennifer Capitolo, Senior Policy Advisors in their Public Policy Group, would be the lead lobbyists for the County and would have the primary responsibility under a contract for managing the Nossaman "team" in achieving the County's legislative objectives. As stated in their proposal, Ms. Capitolo currently serves as the lead government affairs representative for the California Water Association (CWA), a statewide association of water utilities that are regulated by the PUC, and lobbies both the State Legislature and the State Water Resources Control Board on behalf of the organization. Other advisors included in the proposal have extensive experience in crafting and lobbying for legislation related to water recycling.
On June 26, 2019, before contract negotiations were complete, the County received a letter from Nossaman advising the County that Nossaman has an ongoing commitment to provide legal services to the Kern County Water Agency, the Coalition for a Sustainable Delta, and other unnamed clients. According to the letter, all of these clients may, at times, have interests that conflict with those of the County. A copy of the letter is attached as Attachment B. The nature of the potential conflicts is described on page 2 of the letter. The letter goes on to request that the County formally waive the conflict.
On July 8, 2019, a second letter was received from Nossaman, a copy of which is attached as Attachment C. The second letter reveals that the firm’s request for a conflict waiver was based on rules of professional conduct for the legal profession that no longer apply.[1] And that under the new rules, Nossaman has concluded that no conflict currently exists and therefore a conflict waiver is not required. Nossaman concludes the letter by asking the County to acknowledge that the firm has disclosed to the County that the firm represents the Kern County Water Agency and the Coalition for a Sustainable Delta, and that those clients have adverse, or potentially adverse, positions to the County with regard to State water project operations and the Delta conveyance project.
[1] The State Bar of California adopted new rules of professional conduct that went into effect November 1, 2018.
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Law firms owe clients a duty of undivided loyalty. When a client’s interests are adverse to another client’s interests, the firm’s representation of those clients may be affected.
Nossaman is proposing as a mitigation the creation of an “ethical wall” between the professionals who represent the Kern County Water Agency and the Coalition for a Sustainable Delta on the one hand and the professionals who will represent the County on the other hand. The “wall” would be necessary because Nossaman reports that it will continue to represent both the Kern County Water Agency and the Coalition for a Sustainable Delta with respect to endangered species and water supply issues in the Delta, including with respect to the Delta conveyance project.
If during the term of the County’s contract with Nossaman, a situation arises that, under the current rules, requires Nossaman to obtain conflict waivers, Nossaman would have to obtain them from all affected clients in order to continue the then-existing representation. |