Contract analysis

From: Helen Drazkowski <hdrazkowski@calderwoodharkness.com> To: Rachel Bernstein <rbernstein@calderwoodharkness.com> Cc: Lawrence Keating <lkeating@calderwoodharkness.com> Date: Thu, 16 May 2024 02:47:00 -0000 Subject: RE: Draft Declination Letter — Matter No. 1031-00001 (Metropolitan Transit Development Corp.)

Thank you for sending along the draft declination letter dated May 15, addressed to Terrence Whitfield at MTDC (550 West Harrison Street, Suite 1400, Chicago, IL 60607). I've reviewed it carefully. The letter is generally well-structured, and the overall approach is sound, but it requires several modifications before we can send it out. I'm attaching my redline, but I want to walk through the key points here so that

**Overarching Concern: Protecting the Confidentiality of the Existing Client Relationship**

The central issue is that the letter as currently drafted contains enough detail to allow a sophisticated reader — and Whitfield is certainly that — to identify or deduce the identity of our existing client and the nature of our engagement for that client. Our duty of confidentiality under the Illinois Rules of Professional Conduct means we cannot reveal to MTDC who the conflicting client is, what type of matter we h

With that principle as the guide, here are my specific comments, roughly tracking the letter's structure:

**1. "Technology vendor" / "biometric workforce management" language (¶2).** The second paragraph references the conflict as arising in connection with "a technology vendor involved in biometric workforce management." This is far too specific. Whitfield knows MTDC's vendors. This language would allow him to readily identify our client. Please remove any reference to the type of client, the industry, or the subject ma

**2. Reference to "Intellectual property matters" (¶2).** The sentence noting that the conflict relates to "Intellectual property matters" must be struck entirely. Even characterizing the practice area narrows the field unacceptably and risks disclosing confidential information about the nature of our existing engagement.

**3. "Irreconcilable positional conflict" (¶3).** While this phrase is legally accurate as an internal characterization, using it in a letter to Whitfield signals that we would be required to take opposing legal positions regarding the same technology or platform. Replace with more generic phrasing along the lines of: "a conflict of interest that, in the firm's assessment, is not subject to waiver by consent under ap

**4. Statement regarding confidential information (¶3).** The sentence noting that the firm "possesses confidential information that would be material to the proposed engagement" is problematic. It effectively confirms that our conflicting client has a direct nexus to the MTDC matter. Delete this sentence. The statement that the conflict is unwaivable is sufficient on its own. We have no obligation to explain the spe

**5. Confirmation of no attorney-client relationship (¶4).** This paragraph is fine as drafted and must remain. It correctly confirms that no attorney-client relationship was formed between the firm and MTDC, that we received no confidential documents or materials from MTDC, and that there are no outstanding obligations. One minor addition: please add a sentence clarifying that any information shared during the initi

**6. Referral offer (¶5).** The offer to facilitate referrals to alternative counsel is appropriate and should stay. I'd suggest adding a sentence indicating that we will separately provide names and contact information for recommended firms with relevant experience, which sets up the referral letter we plan to send shortly after. Do not name any specific firms in this declination letter — save those for the separate

**7. Closing / expression of regret (¶6).** The expression of regret reads well; no changes needed. Please confirm the letter will be signed by you as the partner who had the initial contact, on Chicago office letterhead (One North Wacker Drive, Suite 4200, Chicago, IL 60606).

Once you've incorporated these edits, please circulate the revised draft to me and Lawrence for final sign-off before transmission. Given the time-sensitivity of MTDC's situation — the AG's CID response deadline and the pending class action (Cook County Case No. 2024-CH-04417) — we should get this letter to Whitfield no later than tomorrow, May 17. Please send via email with the signed letter as a PDF attachment to W

Rachel, I'm happy to discuss any of these edits by phone if that would be helpful. I want to emphasize the importance of getting this right — this letter will be part of the firm's permanent conflicts record and needs to withstand scrutiny. The edits are largely about discipline in what we don't say, which I know you appreciate.

Helen Drazkowski General Counsel Calderwood & Harkness LLP One North Wacker Drive, Suite 4200 Chicago, IL 60606 hdrazkowski@calderwoodharkness.com