OSAGE TRIBE OF INDIANS v. USA

Filing 296

ORDER granting 283 Motion to Disqualify Counsel. Attorney Bradley Dean Brickell terminated Signed by Judge Emily C. Hewitt. (nag)

O S A G E TRIBE OF INDIANS v. USA

D o c . 296

In the United States Court of Federal Claims
N o . 99-550 L (in to which has been consolidated No. 00-169 L) (E -F ile d : March 31, 2008) _________________________________________ ) ) ) ) ) Plaintiff, v. ) ) ) T H E UNITED STATES OF AMERICA, ) ) Defendant. ) ) _________________________________________ ) M o tio n to Disqualify Counsel; R C F C 83.2(c)(2); ABA Model R u le s of Professional Conduct R u le 1.9(a); Whether State C a se s Interpreting State Rules o f Professional Conduct Bind th e U.S. Court of Federal C la im s ; Whether the Sovereign O s a g e Nation Enjoys C o n tin u in g Identity Under "An A c t for the Division of Lands a n d Funds of the Osage Indians in Oklahoma Territory, and for O th e r Purposes" and "An Act to R e a ff irm the Inherent Sovereign R ig h ts of the Osage Tribe to D e te rm in e Its Membership and F o r m of Government"

T H E OSAGE TRIBE OF INDIANS O F OKLAHOMA,

O P IN I O N AND ORDER O n October 15, 2007, eight individuals who identify themselves as "personal o w n e rs of allotted shares or `headrights' of the Osage Tribe of Indians of Oklahoma" (p ro p o se d intervenors) filed their Motion to Intervene and Amend Complaint and Brief in S u p p o rt (Mot. Int. or motion to intervene) 1. Plaintiff responded to the motion to in te rv e n e by filing Plaintiff Osage Nation's 1 Motion to Disqualify Bradley D. Brickell as C o u n s e l for the Proposed Intervenors (Pl.'s Mot. or plaintiff's motion to disqualify) on N o v e m b e r 16, 2007. The proposed intervenors filed their Response of Proposed In te rv e n o rs to the Osage Nation's Motion to Disqualify (Prop. Int. Resp. or proposed in te rv e n o rs ' response) on December 14, 2007. Plaintiff (plaintiff or the Osage) filed P la in tif f Osage Nation's Reply Brief in Support of its Motion to Disqualify Bradley D.

Case number 99-550 L is captioned as above. Case number 00-169 is captioned The Osage Nation v. The United States of America in the court's electronic docketing system.

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B ric k e ll as Counsel for the Proposed Intervenors (Pl.'s Reply or plaintiff's reply) on D e c em b e r 21, 2007. The court held a telephonic status conference with the parties on J a n u a ry 4, 2008 at which Mr. Brickell requested and was, by Order of January 4, 2008, g ra n te d an opportunity to provide further briefing. See Transcript of Jan. 4, 2008; Order o f Jan. 4, 2008. The proposed intervenors filed their additional briefing on January 18, 2 0 0 8 (Prop. Int. Add'l Br. or Proposed Intervenors' Additional Briefing) to which p l a in t if f s replied on January 25, 2008 (Pl.'s Add'l Br.). For the following reasons, p la in tif f 's motion to disqualify is GRANTED. I. B a c k g ro u n d

B ra d le y D. Brickell previously represented plaintiff in both of the cases now c o n so lid a te d in this case. Mr. Brickell filed the complaint for case number 99-550 L on A u g u s t 2, 1999 and the complaint for case number 00-169 L on March 31, 2000.2 See C a s e No. 99-550 L, Complaint and Case No. 00-169 L, Complaint. On May 16, 2003, Wilson K. Pipestem became counsel for the Osage Nation in c a s e number 99-550 L. This court terminated Mr. Brickell as counsel of record in case n u m b e r 00-169 L on April 23, 2003 by granting a motion to substitute Mr. Pipestem for M r. Brickell. Order of Apr. 23, 2003, 1. A similar motion was filed in case number 995 5 0 L and granted by Judge Williams on May 16, 2003. Case No. 99-550 L, Motion to S u b s titu te Attorney William [sic] K. Pipestem in Place of Bradley Dean Brickell; Order o f May 16, 2003. On July 1, 2003, Mr. Brickell filed a motion in case number 00-169 L on behalf of s ix individual headright owners seeking leave to appear as amicus curiae and to file a b rie f on the pending motion to dismiss. Case No. 00-169 L, Motion for Leave to File M e m o r a n d u m Brief Amicus Curiae (filed July 1, 2003). The Osage Nation opposed the m o tio n . See Case No. 00-169 L, Plaintiff Osage Tribe's Opposition to Motion of In d iv id u a l Osage to File Memorandum Brief Amicus Curiae (filed July 21, 2003). The

Prior to consolidation on May 5, 2000, see Case No. 99-550, Docket No. 12, Order of May 5, 2 0 0 0 , these cases have been assigned at different times to several judges. As to case number 99-550 L, the c a se was assigned to Judge John P. Wiese on August 2, 1999, Notice of Assignment, Docket No. 2, to J u d g e Mary Ellen Coster Williams on August 15, 2003, Order Reassigning Case, Docket No. 46, and to J u d g e Emily C. Hewitt on September 2, 2005, Order of Reassignment, Docket No. 90. As to case number 0 0 -1 6 9 L, the case was assigned to Judge James T. Turner on March 31, 2000, Notice of Assignment, D o c k e t No. 2, to Judge Wiese on May 4, 2000, Notice of Reassignment, Docket No. 4, to Judge Turner on S e p t e m b e r 15, 2000, Notice of Reassignment, Docket No. 7, and to Judge Hewitt on May 1, 2002, Notice o f Reassignment, Docket No. 39.

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c o u rt declared the amicus motion moot in light of its decision to deny the motion to d is m is s . Case No. 00-169 L, Order of July 28, 2003. Mr. Brickell then submitted a motion to seal a letter to Chief Gray, Motion to Place E x h ib i t Under Seal, which he signed as "Attorney for Proposed Amicus Curiae," Case N o . 00-169 L, Motion for Leave to file Memorandum Brief Amicus Curiae 2, a motion w h ic h the Osage opposed. Plaintiff Osage Tribe's Response to Former Counsel's Motion to Place Exhibit Under Seal. The court, noting that "former counsel is not an attorney of re c o rd in the case," denied the motion to seal and stated that "[f]ormer counsel shall not f ile additional briefing in this case unless first granted amicus curiae status in this case or u n le ss requested by the court." Case No. 00-169 L, Order of Aug. 27, 2003, 1.3 M r. Brickell filed the proposed intervenors' motion to intervene on October 15, 2 0 0 7 .4 Plaintiff filed its motion to disqualify in response. This Opinion and Order re v ie w s the briefing submitted by plaintiff's counsel and Mr. Brickell. For the following re a s o n s , plaintiff's motion to disqualify Mr. Brickell is GRANTED. II. D is c u ss io n A. L e g a l Standards

T h e Code of Responsibility that governs this court is the American Bar A s s o c ia tio n Model Rules of Professional Conduct (ABA Model Rules). Rules of the C o u rt of Federal Claims (RCFC) 83.2(c)(2).5 ABA Model Rule 1.9(a) provides that "[a] la w ye r who has formerly represented a client in a matter shall not thereafter represent an o ther person in the same or a substantially related matter in which that person's in te re sts are materially adverse to the interests of the former client unless the former c lie n t gives informed consent, confirmed in writing." ABA Model Rule 1.9(a). ABA M o d e l Rule 1.9(a) contains several elements, including the following: the rule applies to 1 ) a lawyer who once had an attorney-client relationship with a former client; 2) to
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The court does not here examine the question whether Mr. Brickell is in violation of the court's Order of August 27, 2003 in his filing of the papers which prompted plaintiff's motion to disqualify. Briefing on the motion to intervene has been stayed pending resolution of the motion to disqualify. See Order of Nov. 29, 2007. The ABA Model Rules are substantially similar to the provision of § 132 of the Restatement (Third) of Law Governing Lawyers: "a lawyer who has represented a client in a matter may not thereafter represent another client in the same or substantially related matter in which the interests of the former client are materially adverse" absent consent. Restatement (Third) of Law Governing Lawyers § 132 (2000).
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p ro h ib it representation in the same or substantially related matter when; 3) there is m a te ria l adversity between the interests of the former and current clients; unless 4) the f o rm e r client "gives informed consent, confirmed in writing." Id. Several courts, including two federal appellate courts, have addressed ABA Model R u le 1.9(a) in their rulings. In Cole v. Ruidoso Municipal Schools (Cole), 43 F.3d 1373 (10 th Cir. 1994), the Tenth Circuit set out a three-pronged test for determining whether a law ye r has violated ABA Model Rule 1.9(a), which appears to the court to follow closely th e terms of the rule: A party seeking to disqualify opposing counsel on the ground of a former re p re se n tatio n must establish that: (1) an actual attorney-client relationship e x is te d between the moving party and the opposing counsel; (2) the present litig a tio n involves a matter that is `substantially related' to the subject of the m o v a n t's prior representation; and (3) the interests of the opposing c o u n se l's present client are materially adverse to the movant. C o le , 43 F.3d at 1384 (citations omitted).6 The court understands the omission of a re f ere n c e to "the same matter," as stated in the rule, to be the use of the shorthand b e c au s e "the same . . . matter" could be viewed as subsumed in the category of " s u b s ta n tia lly related matter." T h e Supreme Court of New Hampshire articulated a test, one that includes four p ro n g s and highlights the requirement addressed in ABA Model rule 1.9(a) - that the m o v in g party did not grant informed consent to its former attorney: F irs t, there must have been a valid attorney-client relationship between the a tto rn e y and the former client. Second, the interests of the present and

The Fifth Circuit has articulated a similar test, one the court refers to as "the `substantial relationship' test," In re American Airlines, Inc., 972 F.2d 605, 614 (1992), containing two prongs: A party seeking to disqualify opposing counsel on the ground of a former representation must establish two elements: (1) an actual attorney-client relationship between the moving party and the attorney he seeks to disqualify and (2) a substantial relationship between the subject matter of the former and present representations. In re American Airlines, Inc., 972 F.2d at 614 (citations omitted). The court, for reasons of completeness, prefers the articulation in Cole v. Ruidoso Municipal Schools (Cole), 43 F.3d 1373, 1384 (10th Cir. 1994) and Sullivan County Regional Refuse Disposal District v. Town of Acworth (Sullivan), 686 A.2d 755, 757 (N.H. 1996).

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f o rm e r clients must be materially adverse. Third, the former client must not h a v e consented, in an informed manner, to the new representation. Finally, th e current matter and the former matter must be the same or substantially r e la te d . S u lliv a n County Reg'l Refuse Disposal Dist. v. Town of Acworth (Sullivan), 686 A.2d 7 5 5 , 757 (N.H. 1996) (citations omitted). Consent is not an issue in this case. There is no co n sen t. The case turns on the other elements in ABA Model Rule 1.9(a).

B.

W h e th e r There Was a Valid Attorney-Client Relationship Between the A tto rn e y and Former Client

T h e first prong of the test requires the court to determine whether there was a valid a tto rn e y-c lien t relationship between the attorney and former client. ABA Model Rule 1 .9 (a); see Cole, 43 F.3d at 1384; Sullivan, 686 A.2d at 757. It is undisputed that Mr. B ric k e ll was counsel of record in case number 99-550 L, which, on its face, might appear to put beyond dispute that he "has formerly represented a client in a matter [and] shall not th e re a fte r represent another person in the same or a substantially related matter." See A B A Model Rule 1.9(a). However, Mr. Brickell asserts that, because of changes to the O sa g e Nation's constitution in 2006, the Osage Nation that he represented previously is n o t the same as the one currently represented by plaintiff's counsel. Prop. Int. Resp. 1. Proposed Intervenors argue that "[t]he current [p]laintiff, the Osage Nation, is the re o rg a n iz e d form of government pursuant to the new `constitution' of the Osage[,] which b e c am e operative in 2006" and that "[t]his new form of government is not the re p re se n ta tiv e body of the ultimate beneficiaries of this case, the `closed roll' tribe of O s a g e pursuant to the Act of 1906." Id. Plaintiff claims that "[t]here is no question that th is is the `same . . . matter' in which Mr. Brickell had an attorney-client relationship with th e Osage Nation" because "Mr. Brickell was counsel of record for the Osage Nation in b o th [cases] No. 99-550 [L] and No. 00-169 [L] from inception through the spring of 2 0 0 3 ." Pl.'s Mot. 7. Plaintiff further replies that the Osage's "2006 Constitution did not c re a te a `new' Osage Nation that is inconsistent with the 1906 Act and outside federal la w ," Pl.'s Reply 5, but that the constitution reflects sovereign authority of the Osage N a tio n "to expand its membership and change its government in 2006 without . . . c re a tin g an entirely new entity," id. T h e United States Constitution recognizes Indian tribes as sovereign governments. Article I, § 8 of the Constitution gives Congress the power "[t]o regulate Commerce with f o re ig n Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The Supreme Court of the United States has held that "Indian tribes are 5

u n iq u e aggregations possessing attributes of sovereignty over both their members and th e ir territory." United States v. Mazurie, 419 U.S. 544, 557 (1975) (citing Worcester v. G e o rg ia, 31 U.S. 515, 557 (1832)). The Supreme Court further described the sovereignty o f Indian tribes by stating that "Indian tribes still possess those aspects of sovereignty not w ith d ra w n by treaty or statute, or by implication as a necessary result of their dependent s ta tu s ." United States v. Wheeler, 435 U.S. 313, 323 (1978). Congress first enacted legislation specific to the Osage Nation in 1906 by passing " A n Act for the Division of Lands and Funds of the Osage Indians in Oklahoma T e rrito ry, and for Other Purposes" (1906 Act). See 34 Stat. 539; Logan v. Andrus, 640 F .2 d 269, 270 (10th Cir. 1981) ("The Osage Allotment Act of June 28, 1906 set up the m a c h in e ry for the administration of the Osage mineral estate and described and declared th e rights vested in the individuals."). The 1906 Act established a form of Osage g o v e rn m e n t that had general authority over all tribal matters, including those involving n o n -sh a re h o ld e r Osages. 34 Stat. 544-45. The 1906 Act states: [T]he roll of the Osage tribe of Indians, . . . as it existed on the first day of Jan u ary, nineteen hundred and six, and all children born between January f irs t, nineteen hundred and six, and July first, nineteen hundred and seven, to persons whose names are on said roll on January first, nineteen hundred a n d six, and all children whose names are not now on said roll, but who w e re born to members of the tribe whose names were on the said roll on Jan u ary first, nineteen hundred and six, including the children of members o f the tribe who have, or have had, white husbands, is hereby declared to be th e roll of said tribe and to constitute the legal membership thereof . . . . 34 Stat. 539-40. The 1906 Act further provided that "there shall be a biennial election of o f f ice rs for the Osage tribe." Id. at 545. In its interpretation of the 1906 Act, the court in L o g a n specifically held that the Osage's sovereign power extends beyond its authority u n d e r the 1906 Act to manage the proceeds of the mineral estate: "The Osage Allotment A c t of June 28, 1906 set up the machinery for the administration of the Osage mineral e sta te and described and declared the rights vested in the individuals. . . . The statute was b a sic a lly for allotments but this portion [the provision providing for the election of tribal o f f ic e rs ] in no way limited the authority of the officers therein named to mineral a d m in is tra tio n or any other specific function." Logan, 640 F.2d at 270. At the instance of the Osage, the 1906 Act was clarified in 2004 by "An Act to R e a f f irm the Inherent Sovereign Rights of the Osage Tribe to Determine Its Membership a n d Form of Government" (2004 Act). Pub. L. No. 108-431, 118 Stat. 2609 (2004). The c o u rt finds the text of the 2004 Act to be clear on its face. See 2004 Act. However, in 6

o rd e r to provide an historical context for the legislation, the court reviews aspects of its le g is la tiv e history.7 C h ief Jim Gray, then principal chief of the Osage, testified on March 15, 2004 "in stro n g support of this legislation." H.R. 2912, To Reaffirm the Inherent Sovereign Rights o f the Osage Tribe to Determine its Membership and Form of Government: Legislative F ie ld Hearing Before the Comm. on Resources, 108th Cong. 15 (2004) (statement of C h ief Jim Gray). Chief Gray stated that the 2004 Act "would reaffirm the Osage Nation's in h e re n t sovereign rights to establish its own form of government and membership c riter ia without diminishing the Osage mineral estate." Id. Chief Gray testified that, u n d e r the 1906 Act, "Osage membership for purposes of voting and eligibility for elected trib a l office is limited to Osages with headrights," a mandate that Chief Gray c h a ra c te riz e d as "not Osage" because "[i]t is not of our making. It does not reflect Osage v a lu e s. It is an imposition." Id. Chief Gray testified that House Resolution (H.R.) 2912, w h ic h became the 2004 Act, "would allow the Osage people to define who we are and w h o we will be" by enabling the Osage "the freedom to define our own citizenship, our o w n form of government, and our own future." Id. at 15, 16. The report from the House of Representatives that accompanied H.R. 2912 states: "The purpose of H.R. 2912 is to reaffirm the inherent sovereign rights of the Osage Tribe to determine its membership and form of government." H.R. Rep. No. 108-502, at 1 (2 0 0 4 ) (House Report). The House Report explains that "[t]he Osage Tribe is a federally re c o g n iz e d tribe with a nearly 1.5 million-acre reservation in northeast Oklahoma," id., a n d that, "[i]n 1906, Congress enacted the [1906 Act], which is unique among federal I n d ia n laws in that it restricts the Osage Tribe from defining its own membership rules,

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The court's use of legislative history is permissible even when the statute itself is clear on its

face: Source materials other than intrinsic aids are considered relevant in construing statutes. Sources outside the text are known as extrinsic aids . . . [which] consist of background information about circumstances which led to the enactment of a statute, events surrounding enactment, and developments pertinent to subsequent operation. These facts comprise the history of the statute. . . . Ambiguity is not always considered a prerequisite to the use of extrinsic aids. 2A Norman J. Singer, Sutherland Statutory Construction, § 48:1 (7th ed. 2007) (footnotes omitted); see also United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543-44 (1940) ("When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no `rule of law' which forbids its use, however clear the words may appear on `superficial examination.'" (citations omitted)); Fed. Commc'n Comm'n v. Cohn, 154 F.Supp. 899, 910 (S.D.N.Y. 1957) (holding that the "plain meaning rule . . . is not to be used to thwart or distort the intent of Congress by excluding from consideration enlightening material from the legislative files").

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a n d prescribes a particular form of government which the tribe cannot change," id. The re su lt of the 1906 Act, the House Report claims, is the exclusion of "many thousands of O s a g e persons from being members of the tribe because they do not have headright s h a re s," which denies such persons "important services and benefits, such as Native A m e ric a n academic scholarships, and more importantly, a role in participating in the life a n d government of the tribe." Id. at 2. The House Report declares that "H.R. 2912 c la rif ie s the 1906 Act and enables the Osage Tribe to craft its own membership and tribal g o v e rn m e n t rules on the same footing as all other federally-recognized tribes." Id. Further, the House Report states that "[t]he bill provides that no one's rights to shares in th e mineral estate are diminished through the Osage Tribe's new ability to determine its o w n membership," id., and the House Report points out that "a representative of an a ss o c ia tio n of headright owners [Robert E. Yarbrough, then chairman of the Osage S h a re h o ld e rs Association] testified in support of the legislation," id. The discussion of H.R. 2912 on the floor of the House of Representatives further p la c es the bill in its historical context. When introducing H.R. 2912 in the House of R e p re se n ta tiv e s, Representative Gibbons stated that "[t]his legislation would put the O sa g e Tribe on the same footing as every other sovereign, federally recognized tribe in th e United States in terms of defining its own membership criteria and its form of g o v e rn m e n t." 150 Cong. Rec. H3562, H3562 (2004). Representative Gibbons explained th a t "[u]nder the [1906 Act], as interpreted by subsequent Federal court decisions, the o n ly legal members of the Osage Tribe are the lineal descendents of those Osage persons liv in g before July 1, 1907, who also possess what is called a `headright share' . . . [which] h a d the unfortunate result of excluding people who have a high degree of Osage blood f ro m membership in the tribe." Id. The purpose of the bill, Representative Gibbons s ta te d , was to enable "the tribe . . . [to] determin[e] its membership and form of g o v e rn m e n t" and to "decide how to govern itself as it sees fit." Id. Representative G ib b o n s further stated that the bill "includes language to ensure that no one's interest in h e a d r ig h t shares is touched" and that "there is no intent to affect them [headright owners] u n d e r this bill." Id. The 2004 Act affirms the sovereignty of the Osage Tribe: Congress hereby reaffirms the inherent sovereign right of the Osage Tribe to determine its own membership, provided that the rights of any person to O s a g e mineral estate shares are not diminished thereby . . . [and] the in h e re n t sovereign right of the Osage Tribe to determine its own form of g o v e rn m e n t.

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2 0 0 4 Act § 1(b)(1)-(2) (emphasis added). The 2004 Act clarifies the distinction between " le g a l" membership in the Osage Nation as defined in the 1906 Act (for the purpose of d e ter m in in g which individuals would receive surface land allotments and the right to m o n ie s derived from the tribal mineral estate) and membership in the Osage Nation g ra n te d by the Nation itself as a sovereign. The 2004 Act states that "the term `legal m e m b e rsh ip ' in section 1 of the [1906 Act] . . . means the persons eligible for allotments o f Osage Reservation lands and a pro rata share of the Osage mineral estate [proceeds] as p ro v id e d in that [1906] Act, not membership in the Osage Tribe for all purposes." Id. at § 1 (b )( 1 ). The court reads the 1906 Act and 2004 Act together as recognizing two kinds of m e m b e rsh ip in the Osage Nation: "legal" and "for all purposes." However, there is only o n e Osage Nation. The Osage Nation has the sovereign power to determine its own m e m b e r s h ip "for all purposes" and to determine its own form of government, and that g o v e rn m e n t is the beneficiary of the Osage mineral estate and tribal trust fund account c re a te d by the 1906 Act. See 34 Stat. 545; 2004 Act § 1(b)(1)-(2). Notably, the 2004 Act re c o g n iz e s the Osage Nation's pre-existing sovereign power to adopt measures such as th e 2006 Constitution without ceasing to be the trust beneficiary named in the 1906 Act: (b ) Reaffirmation of Certain Rights of the Osage Tribe. (1 ) Membership. Congress hereby clarifies that the term "legal m e m b e rsh ip " in section 1 of the [1906 Act] . . . means the persons eligible f o r allotments of Osage Reservation lands and a pro rata share of the Osage m in e ra l estate as provided in that Act, not membership in the Osage Tribe f o r all purposes. Congress hereby reaffirms the inherent sovereign right of th e Osage Tribe to determine its own membership, provided that the rights o f any person to Osage mineral estate shares are not diminished thereby. (2 ) Government. . . . Congress hereby reaffirms the inherent s o v e re ig n right of the Osage Tribe to determine its own form of g o v e rn m e n t. 2004 Act § 1(b)(1)-(2). Having determined that the Osage's right to sovereignty includes the right "to d e ter m in e its own membership" and "its own form of government," the court now turns to the identities of the Osage and the proposed intervenors. In the proposed intervenor's b rie f in g , Mr. Brickell refers to the proposed intervenors, eight individual Osages, as "the e x a c t same parties" he formerly represented in case numbers 99-550 L and 00-169 L. 9

P ro p . Int. Resp. 7; see also id. at 2-3, 9, 10. By so doing, however, Mr. Brickell is attem p tin g to define the "Osage Nation" as certain individuals rather than an entity. Mr. B ric k e ll's former clients are the Osage and the Osage Nation (both referred to in this c o n so lid a te d case as the Osage). The Osage is not comprised of individual headright o w n e rs only. The 2004 Act recognizes two types of membership within the Osage but it d o e s not create a new entity. An Indian tribe recognized by federal law is not created or d e stro ye d merely because the types of membership recognized within the tribal g o v e rn m e n t are clarified. As another court has stated, "[A] tribe is not a static group. Its e x is te n c e is preserved by new generations succeeding to membership. Though the m e m b e r s h ip changes, the tribe is potentially forever." United States v. 43.47 Acres of L a n d , 855 F. Supp. 549, 551 (D. Conn. 1994). Mr. Brickell further argues that "the Osage Tribe, as it existed until 2006, was, by d e f in itio n , a closed roll tribe consisting of only those persons owning a share or headright in ter e st, as defined in the 1906 Act." Prop. Int. Resp. 2 (emphasis omitted). According to M r. Brickell, the definition of the Osage Nation changed with the tribe's adoption of a n e w constitution in 2006. Id. at 1; see Transcript of Oral Argument, Feb. 5, 2008 (Feb. 5, 2 0 0 8 Tr.) 25:3-26:18. Mr. Brickell states that, prior to his filing case numbers 99-550 L a n d 00-169 L, he "was hired by the council elected solely by the headright owners to re p re se n t their constituency and their members." Feb. 5, 2008 Tr. 22:20-22. Mr. Brickell c la im s that, at that time, the Osage Tribe "had standing to prosecute this case . . . because o f the powers of [the council elected by the headright owners] that were given to govern the Osage shareholders and prosecute the case on their behalf." Id. at 25:6-9. Mr. B ric k e ll argues that the current plaintiff differs from what he understood to be the Osage T rib e when he was counsel of record, stating that "[t]he current government of the Osage . . . is not elected by the shareholders . . . but is elected by all the Osage people as a w h o le ." Id. at 25:10-15. Thus, he asserts, "There is no current form of government that is under the 1906 Act representative of only the Osage shareholders. . . . [T]herefore, it is n o t the same client that I represented back in 2002." Id. at 25:16-20. However, Mr. Brickell's argument is contradicted both by his own prior statements a n d by the text of the 2006 Constitution itself. The 2006 Constitution provides that the m in e ra l estate is reserved to the Osage Nation itself, not to the headright owners: The Mineral Estate of the Osage Reservation is reserved to the Osage N a tio n . The government of the Osage Nation shall have the perpetual o b lig a tio n to ensure the preservation of the Osage Mineral Estate. The g o v e rn m e n t shall further ensure that the rights of members of the Osage N a tio n to income derived from that Mineral Estate are protected.

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2 0 0 6 Const. art. XV, § 4. When an asset is said to be "reserved" to an entity, it is " re ta in e d or stored for future use." Black's Law Dictionary 1334 (8th ed. 1999). Reserved rights are created and defined by federal law, and federal courts may determine th o s e rights. Cohen's Handbook of Federal Indian Law, § 19.05 (Nell Jessup Newton et a l. eds., 2005); see also Colo. River Water Conservation Dist. v. United States, 424 U.S. 8 0 0 , 805 (1976) ("The reserved rights of the United States extend to Indian reservations . . . and other federal lands . . . " (citations omitted).); Winters v. United States, 207 U.S. 5 6 4 , 576-77 (1908) (holding that the United States reserved water rights to a number of In d ia n tribes when it created reservations for those tribes). Mr. Brickell's current argument is also contradicted by his previous statements m a d e in both case number 99-550 L and case number 00-169 L. Soon after Mr. Brickell h ad filed the complaint in case number 00-169 L, the government filed Defendant's M o tio n to Dismiss challenging, among other things, the Osage Nation's standing to rec o v er the proceeds of the Osage mineral estate. See Case No. 00-169 L, Defendant's M o tio n to Dismiss 27-30 (filed July 25, 2001). Defendant argued in its July 25, 2001 m o tio n to dismiss that "[a]ny claims for royalties . . . must be brought by the true owners o f such claims, the headright owners themselves." Id. at 30. Plaintiff, represented by Mr. B rick ell at that time, opposed the motion to dismiss. Case No. 00-169 L, Plaintiff's R e sp o n s e to Defendant's Motion to Dismiss (filed Oct. 24, 2002). In plaintiff's October 2 4 , 2002 response to defendant's July 25, 2001 motion to dismiss, Mr. Brickell argued th a t "the Tribe initially receives all royalty income (as the Tribe itself in fact owns the m in e ra l interests) and for a time holds the funds until they are distributed as required by la w ." Id. at 13 n.7 (emphasis and citation omitted). Mr. Brickell criticized the g o v e rn m e n t's "sophistic argument . . . that the headright owners own all Osage minerals," id . at 14, and argued that "it is the Osage Nation itself which owns the beneficial interest in the minerals," id. at 15. W h ile the government's motion to dismiss in case number 00-169 L was pending, th e government raised its standing argument in case number 99-550 L at a status c o n f ere n c e with Judge Wiese on January 23, 2003. Transcript of Status Conference, Jan. 2 3 , 2003 (Jan. 23, 2003 Tr.) 6:23-7:7. During that status conference, Judge Wiese q u e stio n e d Mr. Brickell about "the underlying legal relationship between the individual [ h e ad rig h t owner] and The Tribe that permits The Tribe to be a representative." Id. at 6 3 :2 0 -2 2 . Mr. Brickell explained that "it's through the various acts of Congress and the trib a l government itself, and the way it was set up pursuant to those Acts," id. at 63:232 5 , and he argued that "with regard to The Osage . . . , the tribal body itself is the elected g o v e rn m e n t, just like the United States can prosecute claims on behalf of its citizens . . . b e c a u s e of the way the procedure was set up in 1906," id. at 64:13-18 (emphasis added). Judge Wiese did not rule on the issue at the status conference, choosing instead to wait 11

u n til this court filed its opinion in case number 99-550 L. Id. at 67:11-13 ("If we can m a k e a non[-]problem out of this, why not do that? . . . Let me read the decision [in case n u m b er 99-550 L] when it comes down."). O n March 13, 2003, Judge Wiese held another status conference in case number 9 9 -5 5 0 L, and Mr. Brickell argued that the tribe had standing to sue because "the minerals a lw a ys remained as an undivided whole owned by the tribe." Transcript of Status C o n f e re n c e, Mar. 13, 2003 (Mar. 13, 2003 Tr.) 15:15-16. Mr. Brickell also asserted that th e "minerals . . . are and always have been since 1906 owned undivided by the tribe," id. a t 15:22-24, and that "the legislative intent [in the 1906 Act], obviously, was that those [ m in e ra ls ] were to be owned by the tribe," id. at 15:5-7; accord id. at 14:11-15 ("[T]he in te n t of Congress was . . . that the oil, gas, coal or other minerals are to be owned by the trib e ."). Judge Wiese agreed with Mr. Brickell's argument and asked Mr. Brickell to w ith d ra w the motions to intervene and amend and to file a revised motion and draft c o m p la in t with the Osage Nation and the Osage Tribe Council as co-plaintiffs. Id. at 1 6 :1 4 -1 8 ; 17:16-20; 22:10-13. M r. Brickell made similar arguments in case number 99-550 L before this court. In a status conference held August 9, 2002, Mr. Brickell stated that "the tribe does have the authority to prosecute this kind of case . . . and any money damages that this Court m ig h t award as a result of trial of the matter . . . would inure to the ultimate benefit of the trib e 's account." Transcript of Aug. 9, 2002 (2002 Tr.) 30:5-11 (emphasis added). When th e court asked Mr. Brickell about the relationship between the headright owners and the " O s a g e Nation," Mr. Brickell answered: T o d a y the tribe has more members and some of the members with Osage b lo o d do not own a head right. The tribe considers them to be a part of the O s a g e but not the part of the tribe that inures to the benefit of the resources w h ic h are held in trust by the government pursuant to the 1906 Act and s u b s e q u e n t legislation. Id . at 31:10-15 (emphasis added). This court filed its opinion on the issue of standing on July 28, 2003 and ruled that " th e Tribe, not the headright holders, is the direct trust beneficiary." Osage Nation v. U n ite d States, 57 Fed. Cl. 392, 395 (2003) (citation and footnote omitted). Specifically, th e court stated: T h e court finds that, under the terms of the 1906 Act relating to the tribal tru s t fund, there is sufficient injury to the Tribe to establish standing. The 12

m in e ra l royalties at issue go first into a tribal trust fund account where they stay for at least one quarter of a calendar year before being transferred to in d iv id u a l headright owners. The responsibility of the government is to the trib a l trust fund account. The tribal trust fund is then responsible for the u ltim a te distribution to the individual headright owners. Importantly, the a lle g e d mismanagement of the mineral royalties is described as taking place w h e n the funds were within the tribal trust fund. The mismanagement is n o t alleged to take place at the point of distribution of the funds to the in d iv id u a l headright holders. Although the Tribe may have no further in te re st or claim to the funds once they are distributed to the headright o w n e rs , the court finds that the Tribe does have both an interest in and a c la im to the funds when those funds are within the tribal trust account that w a s established by the 1906 Act. Moreover, defendant's concern that any d a m a g e s awarded to the Tribe would not "flow down" to the headright h o ld e rs is addressed in the first subsection of Section 4 of the 1906 Act w h ic h requires that "all moneys found to be due said Osage tribe of Indians o n claims against the United States, after all proper expenses are paid, shall b e . . . placed to the credit of the individual members of the said Osage tribe o n a basis of a pro rata division . . . ." 34 Stat. 539, 544 § 4(1). Id. at 395 (citations omitted) (alteration in original). B e c au s e the Osage is the direct trust beneficiary, and because the "Osage" has in c lu d e d and continues to include all members of the Osage tribe, not merely the h e a d rig h t owners, the court finds that the "Osage" as represented by Mr. Brickell from the tim e of filing case numbers 99-550 L and 00-169 L to the present day is the same " O s a g e ." The court determines that there was a valid attorney-client relationship between M r. Brickell and the Osage. Therefore, the first prong of the Sullivan and Cole tests for d e te rm in in g a violation of ABA Model Rule 1.9(a) is satisfied. C . Whether the Interests of the Current and Former Clients are Materially Adverse T h e second prong of the Sullivan test and the third prong of the Cole test requires the court to determine whether the interests of the current and former clients are m aterially adverse. Plaintiff argues that the interests of the proposed intervenors are m a te ria lly adverse to those of the Osage Nation. Pl.'s Mot. 8-11; Pl.'s Reply 7-9. Plaintiff states that the proposed intervenors' positions are adverse to the Osage Nation in th re e ways: "(1) the proposed intervenors claim to own the Osage mineral estate, c o n tra ry to the Osage Nation's position (as previously articulated by Mr. Brickell h im s e lf ); (2) the proposed intervenors attack the Court's ruling on standing (for which 13

M r. Brickell himself advocated); and (3) the Osage Nation opposes the [proposed in te rv e n o rs ' motion to intervene]." Pl.'s Mot. 8. The proposed intervenors argue that "there has been no showing that the positions ta k e n by the Proposed Intervenors against the United States herein is `materially adverse' to that of the Osage Nation (even if it was a former client)." Prop. Int. Resp. 4-5. The c o u rt disagrees. Indeed, the proposed intervenors state that "the claims by the Osage N a tio n that it owns the minerals is not being litigated in the instant proceeding," id. at 5, a n d the proposed intervenors state that no "confidential or privileged information [was] re v e a le d or discussed with the undersigned counsel by the new Osage Nation at any time th a t will prejudice its case herein against the United States," id. Both of these arguments d e p e n d for any force that they may have on a determination that there is no continuity of id e n tity between the Osage when the complaints were filed in 1999 and in 2000 and the O s a g e today. On the contrary, the court finds that the Osage before it today is the same as the O s a g e that filed the complaints in both case number 99-550 L and case number 00-169 L. Morever, the proposed intervenors simply ignore the fact that the Osage obtained an o p in io n stating that the Osage were the owners of the minerals in the "instant p roc ee d ing ." See Osage Nation, 57 Fed. Cl. at 392. The proposed intervenors also ignore th e fact that they admitted that privileged information was communicated to Mr. Brickell b y the Osage. Feb. 5, 2008 Tr. 52:11-15 (Mr. Brickell stating that "in the case of c o n f id e n tia l information and in the telephonic hearing[,] I say have confidential in f o rm a tio n and it is not materially adverse to the Plaintiff"). Indeed, the proposed in te rv e n o rs do not even attempt to deny that privileged information was revealed by p l a in t if f to Mr. Brickell at the time that Mr. Brickell was counsel of record in case n u m b e rs 99-550 L and 00-169 L. Prop. Int. Resp. passim; Feb. 4, 2008 Tr. passim. T h e court finds that Mr. Brickell, as counsel for the proposed intervenors, does in d e e d argue for positions that are adverse to plaintiff. At the present time, Mr. Brickell a d v o c ate s a position that is contradictory to the position he took in previous proceedings in this case and is adverse to the interest of the Osage. Whereas Mr. Brickell now argues th a t the headright owners are "the ultimate beneficiaries of this case," Prop. Int. Resp. 1, h e has represented in the past that the tribe itself owns the beneficial interest in the m inera ls. For example, in case number 00-169 L, Mr. Brickell countered defendant's a rg u m e n t that "the headright owners own all Osage minerals" by stating that "it is the O s a g e Nation itself which owns the beneficial interest in the minerals." Case No. 00-169 L , Plaintiff's Response to Defendant's Motion to Dismiss and Brief in Support 15. In that sa m e brief, Mr. Brickell again asserted that "[c]learly[,] it is the Osage Tribe [that] . . . in 1 8 8 3 . . . received title to the Osage mineral estate." Id. at 15. Mr. Brickell also 14

e x p la in e d that "the Tribe initially received all royalty income (as the Tribe itself in fact o w n s the mineral interests) and for a time holds the funds until they are distributed [to h e a d rig h t owners] as required by law." Id. at 12 n.7. During argument before Judge W iese, Mr. Brickell again asserted the position that he had taken in the briefs. In re sp o n s e to Judge Wiese's question regarding the "underlying legal relationship between th e individual [headright owner] and The Tribe that permits The Tribe to be a re p re se n ta tiv e ," Jan. 23, 2003 Tr. 63:20-22, Mr. Brickell answered that, under the 1906 A c t, "the tribal body itself is the elected government, just like the United States can p ro s e c u te claims on behalf of its citizens," id. at 64:14-18. Mr. Brickell made similar representations before this court in case number 00-169 L . During a status conference held on August 9, 2002, in response to the court's inquiry a b o u t "whether or not the tribal plaintiff has standing to prosecute claims on behalf of the [ h e ad rig h t] owners," 2002 Tr. 29:25-30:2, Mr. Brickell stated: I think we have clear legislative and case law authority that[,] for virtually o v e r 100 years[,] . . . the tribe does have the authority to prosecute this type o f case. . . . Any money damages that this Court might award as a result of trial of the matter . . . would inure to the ultimate benefit of the tribe's a c c o u n t. Id . at 30:3-11. The court then asked Mr. Brickell about the relationship between the h e a d rig h t owners and the "Osage Nation," id. at 31:3-7, and Mr. Brickell responded: In 1906[,] the Osage Nation consisted of a tribe with 2,229 [members - the h e a d rig h t share owners]. Today[,] the tribe has more members[,] and some o f the members with Osage blood do not own a [headright]. The tribe c o n s id e rs them to be part of the Osage . . . Id. at 31:9-12. During oral argument held on April 3, 2003, Mr. Brickell again stated that th e entire tribe, not merely the headright owners, would recover any damages awarded in th e case. Specifically, Mr. Brickell stated: T h e most important thing I wanted to say, Judge, was we've got this iss u e of who recovers here totally resolved. There is no issue as to well, d o e s all the money go to the tribe if the tribe recovers here. It is very clear in the 1906 Act. ....

15

It's Chapter 3572 out of the 59th Congress. It couldn't be clearer. "All monies found to be due to said Osage Tribe on claims against the U n ite d States after expenses are paid shall be placed to the credit of the in d iv id u a l members of the tribe on a prorata division . . .", and then it gets in to the headrights situation. "All royalty received from oil and money re c eiv e d from town lots shall be placed in the Treasury to the credit of the m em b ers of the Osage Tribe." I mean, it's a non-issue, Your Honor. 2 0 0 3 Tr. 131:3-7, 16-25. Mr. Brickell now argues that the headright owners are "the ultimate beneficiaries o f this case," Prop. Int. Resp. 1, but he previously presented in briefings and oral a rg u m e n ts before both Judge Hewitt and Judge Wiese that the Osage Nation is the proper b e n e fic ia ry of this case. He has argued that "it is the Osage Nation itself which owns the b e n e f icia l interest in the minerals," Case No. 00-169 L, Plaintiff's Response to D e f e n d a n t's Motion to Dismiss 15, and that "the Tribe initially received all royalty in c o m e (as the Tribe itself in fact owns the mineral interests) and for a time holds the f u n d s until they are distributed [to headright owners] as required by law," id. at 13 n.7 (e m p h a s is and citation omitted); see also Jan. 23, 2003 Tr. 64:14-18 (arguing that the " u n d e rlyin g legal relationship between the individual [headright owner] and The Tribe . . . permits The Tribe to be a representative," and that, under the 1906 Act, "the tribal body itse lf is the elected government, just like the United States can prosecute claims on behalf o f its citizens"). M r. Brickell's argument thus attempts to undermine the court's previous ruling s o u g h t by Mr. Brickell himself that the Osage Nation has standing to bring the case. Osage Nation, 57 Fed. Cl. at 392 (holding that "under the terms of the 1906 Act relating to the tribal trust fund, there is sufficient injury to the Tribe to establish standing"). Also related to the "materially adverse" prong is Mr. Brickell's argument that A B A Model Rule 1.9(a) "has never been applied to exclude an attorney from re p re se n tatio n of an additional or new client against a common Defendant." Prop. Int. R e sp . 11 (emphasis omitted). If there is, as Mr. Brickell claims, an absence of authority o n the subject, it may well be because the arguments he presents have not been set forth in other cases. Mr. Brickell is incorrect to characterize his attempts to represent the h e a d rig h t owners as "representation of an additional or new client against a common D e f en d a n t." In this case, the fact is that Mr. Brickell was terminated as counsel for the p la in tif f s by the plaintiffs themselves. The parties have not cited, and the court has not f o u n d , any cases that present facts similar to the facts in this case: a terminated attorney w h o attempts to intervene in the very case in which his representation was terminated. 16

N e v e rth e le ss , and contrary to the gravamen of Mr. Brickell's assertions, ABA Model R u le 1.9(a) has excluded an attorney from representing a single client in the same case in w h ic h that attorney previously represented that client and a second client. The United S ta te s Court of Appeals for the Third Circuit has held that counsel representing two cop la in tif f s, one of whom chooses to settle and the other who does not, may not withdraw f r o m one client and represent the other only. In In re Corn Derivatives Antitrust L itig a t io n , 748 F.2d 157 (3d Cir. 1984), a group of attorneys representing two companies, P a n -O -G o ld and Land O'Lakes, tried to maintain its representation of Pan-O-Gold once th a t company had chosen to accept the settlement but Land O'Lakes objected to s e ttle m e n t. Id. at 159-60. Land O'Lakes filed a motion to disqualify counsel under ABA M o d e l Rule 1.9(a), and the Third Circuit held that, although recognizing the "interests of P a n -O -G o ld in retaining its chosen counsel," those interests had to yield to "Land O 'L a k e s' interests in the loyalty of its [former] attorney." Id. at 162. The court found th a t the lawyers had violated their duty of loyalty to Land O'Lakes by continuing to re p re se n t Pan-O-Gold. Id. at 161. Specifically, the court stated that "[a] client has an e x p e c tatio n that the attorney will diligently pursue his goals until the matter is completely re so lv e d , absent an effective waiver. In litigation, an attorney may not abandon his client a n d take a[n] adverse position in the same case." Id. It is the court's view that a similar ru le should apply with even greater force if the attorney was, as here, terminated. Other c o u rts have disqualified counsel from representing additional or new clients against a c o m m o n defendant. See, e.g., United States v. Cooley, 243 F.Supp. 2d 329, 333 (2003) (h o ld in g that a defense attorney could not represent a criminal defendant in a case in w h ic h the government planned to call as witnesses two individuals that the attorney had re p re s e n te d in other proceedings). Furthermore, a plain-language reading of ABA Model Rule 1.9(a) demonstrates th a t the rule's requirement for "materially adverse" interests are not limited to plaintiffd e f en d a n t adversity. The rule plainly states that "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a s u b s ta n tia lly related matter in which that person's interests are materially adverse to the in te re sts of the former client unless the former client gives informed consent, confirmed in writing." ABA Model Rule 1.9(a). The rule provides that a lawyer cannot represent " a n o th e r person," not necessarily the opposing party, in "the same or a substantially re la te d matter" so long as that person's "interests are materially adverse to the interests of th e former client." Id. Mr. Brickell's present arguments regarding the headright owners' claims to the O sa g e minerals and the standing of the Osage to bring this suit are materially adverse to p lain tiff 's interests. The requirement under ABA Model Rule 1.9(a) for "materially a d v e rse " interests are not limited to plaintiff-defendant adversity. See ABA Model Rule 17

1 .9 (a ). For the foregoing reasons, the court finds that the proposed intervenors' interests a re materially adverse to those of plaintiff. D. W h e th e r the Current Matter and Former Matter are the Same or S u b s ta n tia lly Related

T h e court finds that there is no question that this case is the "same . . . matter" in w h ich Mr. Brickell had an attorney-client relationship with the Osage Nation. Mr. B ric k e ll was counsel of record for the Osage Nation in both case numbers 99-550 L and 0 0 -1 6 9 L from the inception of the lawsuits through the spring of 2003, the same cases in to which he now attempts to re-insert himself by representing the proposed intervenors. Because Mr. Brickell is proposing to represent another party in the same cases in which h e previously represented plaintiff, the court finds that ABA Model Rule 1.9(a) bars the r e p re s e n ta tio n . E. P r o p o s e d Intervenors' Argument that Oklahoma State Law Applies and R e q u ire s an Evidentiary Hearing

T h e proposed intervenors argue that Oklahoma state law applies to plaintiff's m o tio n to disqualify Mr. Brickell. See Prop. Int. Resp. 3-6. They state that "[t]he p ro c e d u re for disqualification under [ABA Model] Rule 1.9 must follow the requirements o f Piette v. Bradley & Leseberg, 1996 OK 124, 930 P.2d 183," id. at 5, but they give no s u p p o rt for the contention that this court is bound by Oklahoma state law. Rather, the p ro p o s e d intervenors quote Bayside Federal Savings & Loan Ass'n v. United States (B a ys id e ), 57 Fed. Cl. 18 (2003) (citing Tannahill v. United States, 25 Cl. Ct. 149, 160-61 (1 9 9 2 ) (emphasis omitted and second emphasis added)) and state: "In evaluating a d is q u a lif ic a tio n motion, the Court of Federal Claims is guided by the Model [R]ules of P r o f e ss io n a l Conduct of the American Bar Association, the Rules of Professional C o n d u c t of the Bar to which the attorney at issue is admitted to practice, and relevant case la w ." Prop. Int. Resp. 3. The proposed intervenors' reliance on Bayside and Tannahill is misplaced. As an in itia l matter, neither of those cases addressed ABA Model Rule 1.9(a). Bayside c o n c ern e d a motion to disqualify an attorney under ABA Model Rule 3.7, which states th a t an attorney "shall not act as an advocate of a trial in which the lawyer is likely to be a n e c es s a ry witness." Bayside, 57 Fed. Cl. at 19 (quoting ABA Model Rule 3.7). The a tto rn e y in question was a member of the Texas bar, and the court found that the a n a lo g o u s provisions under Texas law "apply substantially similar standards to whether a n attorney should be disqualified for his role as a necessary witness in the underlying d isp u te." Id. at 20. The court then determined that, because the ABA Model Rule 3.7 is 18

s u b s ta n tia lly similar to the Texas rule, and because the attorney is licensed in Texas, that th e Texas law would govern the court's analysis. Id. at 21. Tannahill involved a motion to disqualify an attorney under ABA Model Rule 4.2, w h ic h addresses communications made by counsel. Tannahill, 25 Cl. Ct. at 161; see A B A Model Rule 4.2 ("In representing a client, a lawyer shall not communicate about the s u b je c t of the representation with a party the lawyer knows to be represented by another la w ye r in the matter, unless the lawyer has the consent of the other lawyer or is authorized b y law to do so."). The court found that ABA Model Rule 4.2 was "substantially similar" to Rule 4.2 of the Rules of Professional Conduct of the Supreme Court of Louisiana, T a n n a h ill, 25 Cl. Ct. at 161, and conducted its analysis relying on federal, not Louisiana, c a se law, id. at 161-168. Neither Bayside nor Tannahill is binding or persuasive with resp ec t to the court's analysis of ABA Model Rule 1.9(a).8 M r. Brickell expands his argument about the application of Oklahoma law to argue th a t the court must hold an evidentiary hearing before ruling on plaintiff's motion to d isq u a lify. He cites an order filed by the Supreme Court of Oklahoma to support his a rg u m e n t that "the district court . . . [must] hold a[n] evidentiary hearing" and that "if it is d e te rm in e d that a part[y's] attorney should be disqualified, this disqualification order m u s t include specific factual finding that the attorney had knowledge of material and c o n f id e n tia l information." Prop. Int. Resp. 5 (emphasis omitted) (citing Piette v. Bradley & Leseberg (Piette), 930 P.2d 183 (Okla. 1996); Prospective Investment & Trading Co. v. G B K Corp. (Prospective Investment), 60 P.3d 520 (Okla. Ct. App. 2002)). Plaintiff a rg u e s that the order issued in Piette "is of no relevance" in this case because it makes no m e n tio n of ABA Model Rule 1.9(a) nor Oklahoma Rule 1.9(a): "It provides no statement o f facts regarding the decision on review, and it cites without explanation two cases inv o lving [ABA Model] Rule 1.10." Pl.'s Reply 10-11. With regard to Mr. Brickell's c itatio n of Prospective Investment, plaintiff argues that the court in that case "incorrectly v ie w e d Piette as binding precedent in the context of 1.9(a)," Pl.'s Reply 11, even though th a t court "noted that its obedience to Piette violated the established principle that `to hold a hearing when disqualification is sought solely under Rule 1.9 would frustrate the reason u n d erlying the rule,'" id. (citing Prospective Trading, 60 P.3d at 525 n.1).9

The court in Bayside did not explain its decision to rely upon Texas law, and this court is not persuaded by its doing so. If it were proper to consider Oklahoma Rule 1.9(a), codified at Rule 1.9(a) of Title 5, Chapter 1, Appendix 3-A of the Oklahoma Statutes, that rule is substantially similar to ABA Model Rule 1.9(a). As of January 1, 2008, the Oklahoma state rule reads:
( c o n t in u e d . . . )
9

8

19

A s an initial matter, the court is not required to follow Oklahoma law because O k laho m a law is not binding on this court. The parties have not identified, and the court is not aware of, any authorities binding on this court and addressing the question of w h e th e r the Court of Federal Claims must take state law into account when determining a m o tio n to disqualify under its own rules and ABA Model Rule 1.9(a). Other federal ap p ellate courts do not appear to consider state law when a motion to disqualify is before th e m unless the rules of the district court so direct. The Fifth Circuit, for instance, c o n sid e rs motions to disqualify counsel to be "substantive motions" that must be "decided u n d e r federal law." Federal Deposit Ins. Corp. v. U.S. Fire Ins. Co., 50 F.3d 1304, 1312 (5 th Cir. 1995). The Tenth Circuit considered Utah state law when it adjudicated an a p p e al of a disqualification of a lawyer in a case that arose in Utah because "[t]he Rules

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(...continued)

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. Okla. Stat. Ann. tit. 5, chap. 1, app. 3-A, Rule 1.9(a) (2008). Oklahoma Rule 1.9(a) now is identical to ABA Model Rule 1.9(a). ABA Model Rule 1.9(a) provides: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. ABA Model Rule 1.9(a). Prior to January 1, 2008, and at the time that the proposed intervenors submitted their response to defendant's motion, see Prop. Int. Resp. 4, Oklahoma Rule 1.9(a) read: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation. Okla. Stat. Ann. tit. 5, chap. 1, app. 3-A, Rule 1.9(a) (2007) (expired Oklahoma Rule 1.9(a)). The only difference between the language of the ABA Model rule 1.9(a) and the expired Oklahoma Rule 1.9(a) is the type of consent required in the circumstance that the lawyer's former client consents to the lawyer's representing another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client. Specifically, ABA Model Rule 1.9(a) requires the former client to give informed consent in writing, while expired Oklahoma Rule 1.9(a) did not specify that the former client give informed consent nor submit his or her consent in writing, but instead required that the "former client consents after consultation." Because there is no dispute that the Osage Nation did not provide any sort of consent, whether it be "informed consent, confirmed in writing," "consent[] after consultation," or otherwise, to Mr. Brickell's representing the proposed intervenors, the court's analysis under ABA Model Rule 1.9(a) is exactly the same as it would be under either the current Oklahoma Rule 1.9(a) or expired Oklahoma Rule 1.9(a). The proposed intervenors have failed to meet the requirement of the rule.

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o f Practice of the District of Utah provide that `[a]ll attorneys practicing before this court . . . shall be governed by and shall comply with the rules of practice adopted by this court . . . and the Utah Rules of Professional Conduct.'" SLC Ltd. V v. Bradford Group West, Inc ., 999 F.2d 464, 466 (10th Cir. 1993) (alterations in original). T h e Code of Responsibility that governs the conduct of attorneys practicing before th is court is the ABA Model Rules, see RCFC 83.2; Part II.A supra, which do not direct th is court to consider state rules or case law when determining whether or not to d is q u a lif y an attorney for a materially adverse conflict of interest. Under ABA Model R u le 1.9(a), there is no requirement for an evidentiary hearing, and the court does not find M r. Brickell's arguments to the contrary persuasive. Therefore, the court determines that n o evidentiary hearing will be held on plaintiff's motion to disqualify. III. C o n c lu s io n

F o r the foregoing reasons, plaintiff's motion to disqualify is GRANTED. Mr. B ric k e ll is disqualified as counsel for proposed intervenors. Proposed intervenors shall, if th e y wish to pursue their Motion to Intervene and Amend Complaint, retain other counsel w h o shall file an appearance with the court on or before June 2, 2008.

IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

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