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Date of Issue: March 17, 2005

Holmes Beach counsel may have conflicts, ethics problem

Dye, Deitrich, Prather, Petruff & St. Paul P.A., the law firm that acts as city attorney for Holmes Beach, may have an ethics problem because it failed to disclose a prior interest when the city commission voted March 11 to sell a city-owned traffic island to adjacent property owner Patrick McConnell.

McConnell, as SeaShell Beach Inc., is developing La Marais Sud, a three-unit condominium complex at 3700 Gulf Drive in Holmes Beach.

According to the Florida Department of State, Division of Corporations database, the Dye Deitrich law firm filed documents for the Florida non-profit corporation La Marais Sud Association Inc. on Feb. 19, 2003. The documents represent incorporation of the condominium owners association.

On Feb. 25, Patricia Petruff of the firm was the city attorney at a city commission meeting where action on the sale of the traffic island to McConnell was delayed because of an error in the legal description advertisement.

Petruff was also the Holmes Beach city attorney at the March 11 commission meeting when the commission voted 4-1 to sell the traffic island to McConnell.

Prior to Feb. 19, the firm had acted as city attorney on Nov. 4, 2002, when McConnell received a height variance for the condominium project from the Holmes Beach Board of Adjustment.

Holmes Beach Mayor Carol Whitmore said the Dye Deitrich law firm did not discuss any previous relationship with McConnell or La Marais Sud, either prior to the Feb. 25 commission meeting or the March 11 meeting.

But the opinions regarding conflict of interest and disclosure of that interest by an attorney seem to vary among Florida legal experts.

Florida League of Cities
Eric Hartwell, an attorney for the Florida League of Cities, said that while neither the league nor the Florida Municipal Attorneys Association has any type of ethics code for attorneys, the Florida Bar Association does.

He cited Rule 4-1.7 of the Florida Bar Association's rules for client-lawyer relationships, which states that "a lawyer shall not represent a client if the representation of that client will be directly adverse to the interests of another client, unless:

"The lawyer reasonably believes the representation will not adversely affect the lawyers responsibilities to and relationship with the other client, and each client consents after consultation."

Hartwell also said a lawyer has a duty to avoid limitation on independent professional judgment.

"I believe representing a client when a conflict of interest exists would simply require the attorney to disclose the conflict to his client and permit the client to knowingly waive the potential conflict to his client, and declare that the conflict will not reasonably interfere with the lawyer's judgment/representation of the existing client," said Hartwell.

He said he was speaking only in general terms and was not commenting on any specific incident.

Florida Bar Association
Attorney Ken Marvin of the Florida Bar Association said that in general terms, the FBA's rules of professional conduct and accompanying comments approved by the Florida Supreme Court would apply, adding that he was not speaking about any specific case.

The FBA comments state that "loyalty is an essential element in the lawyer's relationship to a client.

"An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined.

"If such a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation.

"As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client's or another client's interests without the affected clients consent."

However, added the FBA, "simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require consent of the respective clients."

Client loyalty "is also impaired when a lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests."

On the other hand, said the FBA, "A possible conflict does not itself preclude the representation," and "consideration should be given to whether the client wishes to accommodate the other interest involved.

"Ordinarily," however, "a lawyer may not act as an advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated."

The FBA said that "resolving questions of conflict is primarily the responsibility of the lawyer undertaking the representation."

The entire FBA section on conflict of interest is available online at www.flabar.org.

Marvin said questions about a specific case could only be answered by a specific complaint.

Florida Ethics Commission
According to the Florida Ethics Commission, however, unless the law firm is considered a full-time city employee, "It does not appear they would have to disclose their interest" to the commission, at least under the ethics law, an attorney for the commission said.

The law does "suggest," however, that an attorney should not represent clients before the city that the attorney represents, the lawyer said, but each case is different.

Dye Deitrich acts as the Holmes Beach city attorney on a contractual basis, charging an hourly rate for actual work performed. That's not considered a full-time city employee under Florida law, the ethics commission attorney said.

Dye letter
Ironically, attorney Jim Dye, who often sits as the Holmes Beach city attorney in place of Petruff, has already given a statement on conflict of interest to Holmes Beach.

In a Dec. 3, 2003, letter to Mayor Carol Whitmore, Dye addressed the "issue concerning disclosure of conflicts," that was raised by Holmes Beach resident Joan Perry at the Nov. 25, 2003, commission meeting.

Dye referred to Section 112.3143 of the Florida Statutes and said that while conflicts are defined the same way for appointed officials as elected officials, "Appointed officials, however, cannot participate in the matter which causes the conflict unless the appointed official first discloses the nature of his or her interest in the matter."

The Holmes Beach city charter states the city attorney is "appointed" by the mayor annually, subject to city commission approval.

Perry said that Petruff should have disclosed her firm's involvement with La Marais Sud at least prior to the March 11 meeting.

Perry added that she did not know of the firm's dealings with La Marais Sud before the March 11 meeting, but raised the issue of Dye Deitrich's interest in other McConnell affairs at that same meeting.

Perry said Dye Deitrich was the law firm that handled a quit-claim deed, warranty deed and mortgage documents on the condominium property, all done prior to the March 11 meeting at which Petruff advised the commission on the sale of city property to McConnell.

At that March 11 meeting, Petruff did not indicate the firm had any interest or association in McConnell or the condominium.

Recusement
Dye did, however, recuse himself from discussion of a height variance requested by La Casa Costiera condominium developer William Greer at the Nov. 19 board of adjustment meeting. The firm had prepared the condominium association documents for La Casa Costiera.

The Dye Deitrich law firm also recused itself from the Dec. 18 Holmes Beach Code Enforcement Board hearing involving a complaint against the Alamanda Villa condominiums.

According to CEB clerk Susan Longo, the firm had handled the condominium incorporation documents for Alamanda Villa.

Attorney Mark Singer from Sarasota represented the city at the CEB hearing.

Additionally, the law firm has recused itself from a variance request and site-plan review for Frank Davis, owner of property at 5622 Gulf Drive, citing a potential conflict of interest.

The nature of that conflict has not been disclosed.

That's not quite good enough for Perry.

"I think the city attorney always needs to declare any conflict, even if it's just the appearance of a conflict, or declare if he or she has had any interest," she said.

"I raised the issue both written and verbally at the March 11 meeting and I expect our commissioners to pay attention," Perry added.

"What we need is a contract with the city attorney that states that they do no other business in Holmes Beach, except for city business."

Efforts to reach the Dye Deitrich law firm for comment by an attorney were unsuccessful.

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