HomeMy WebLinkAboutMINUTES - 06092009 - C.22RECOMMENDATION(S):
APPROVE and AUTHORIZE the County Counsel, or his designee, to execute on behalf of
the County, a letter agreement with Orrick, Herrington & Sutcliffe LLP (“Orrick”) that
waives any actual or potential conflict of interest that may exist as a result of Orrick’s
representation of the County, principally in the area of public finance, and Orrick’s
representation of certain firms against which the California State Attorney General has
brought an action for anti-competitive conduct in the Dynamic Random Access Memory
(“DRAM”) market on behalf of a number of California counties, including Contra Costa
County.
FISCAL IMPACT:
There is no negative impact on the General Fund.
BACKGROUND:
The County has a long-standing relationship with Orrick. Orrick frequently acts as the
County’s public finance counsel, primarily as bond counsel.
Recently, Orrick advised the County Counsel’s
APPROVE OTHER
RECOMMENDATION OF CNTY
ADMINISTRATOR
RECOMMENDATION OF BOARD
COMMITTEE
Action of Board On: 06/09/2009 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Gayle B. Uilkema, District II Supervisor
Mary N. Piepho, District III Supervisor
Susan A. Bonilla, District IV Supervisor
Federal D. Glover, District V Supervisor
Contact: Kate Andrus, Deputy
County Counsel (335-1824)
I hereby certify that this is a true and correct copy of an action taken and entered on
the minutes of the Board of Supervisors on the date shown.
ATTESTED: June 9, 2009
David J. Twa, County Administrator and Clerk of the Board of
Supervisors
By: EMY L. SHARP, Deputy
cc:
C.22
To:Board of Supervisors
From:Silvano B. Marchesi, County Counsel
Date:June 9, 2009
Contra
Costa
County
Subject:APPROVE AND AUTHORIZE CONFLICT WAIVER WITH ORRICK, HERRINGTON & SUTCLIFFE
LLP
BACKGROUND: (CONT'D)
Office that its litigation group is representing four firms that are among many firms
named as defendants in an action brought by the California State Attorney General’s
Office in 2002. In that action, known as City of Los Angeles v. Infineon Technologies
AG, et al. (“Infineon”), the California State Attorney General’s Office asserts the
defendants engaged in anti-competitive conduct in the DRAM market. The four firms
represented by Orrick are Nanya Technology Corporation and Nanya Technology
Corporation USA (together, “Nanya”), and Mosel Vitelic Inc. and Mosel Vitelic
Corporation (together “Mosel”). Orrick has represented Nanya since 2004. Beginning in
2006, Mosel was represented by Heller Ehrman LLP. In the fall of 2008, the attorneys
representing Mosel joined Orrick. Thus, Orrick has a long-standing attorney-client
relationship with Nanya and Mosel.
In the absence of the informed written consent of each client, the California Rules of
Professional Conduct prohibit an attorney from representing a client in one matter and at
the same time representing a second client in a separate matter if the second client’s
interests in the separate matter are adverse to those of the first client. (Rule 3-310(C)(3))
In evaluating whether to waive any potential conflict Orrick may have in this instance,
the issue is whether there is the potential for the County to be harmed if information
gained by Orrick in its representation of the County is disclosed to Orrick attorneys
representing Nanya and Mosel. We believe that, in this instance, there is no subject
matter conflict and no potential for harm to the County. Nevertheless, Orrick has agreed
to create and enforce an “ethical wall,” separating those Orrick attorneys working on
matters for the County from those Orrick attorneys working on Infineon.
The County Administrator’s Office has advised that it does not object to the conflict and
recommends waiver.
A copy of the letter agreement that waives any potential conflict Orrick may have is
attached.
CONSEQUENCE OF NEGATIVE ACTION:
If the conflict waiver is not granted, Orrick will not be able to continue to represent
Nanya and Mosel, which will likely result in increased costs not only for Nanya and
Mosel, but for the California State Attorney General’s Office and a delay in the resolution
of Infineon.
ATTACHMENTS
Orrick Letter Agreement