Andersen v. Valley County et al

Filing 33

ORDER granting 12 Motion to Disqualify Counsel. Attorney Matthew C Williams terminated. Plaintiff has 21 days from the date of this order to provide written notice to the Court indicating how and by whom she will be represented; All deadlines in the Courts Case Management Order 20 and theresponses to the pending motions to dismiss 5 22 are stayed untilfurther order of the Court; and the telephonic status conference for June 14, 2017 is VACATED and reset for June 22, 2017 at 3:00 p.m. MST. Counsel for Defendants to initiate the call; once all parties are on the line, connect to the Courtroom at [phone]. Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CHRISTINE ANDERSEN,
Case No. 1:16-cv-00554-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER RE: MOTION TO
DISQUALIFY COUNSEL (Dkt. 12)

v.
VALLEY COUNTY, an Idaho
municipal corporation; SKIP CLAPP,
individually; SKIP CLAPP, in his
official capacity as an employee of
Valley County; and in his individual
capacity; RON JENKS, in his official
capacity as an employee of Valley
County and in his individual capacity;
KENNETH ARMENT, individually;
KENNETH ARMENT, in his official
capacity as an employee of Valley
County, and in his individual capacity;
and DOES 1-25, inclusive, in the
individual, official corporate, municipal
and governmental capacities, yet to be
named,
Defendants.

MEMORANDUM DECISION AND ORDER RE: MOTION TO DISQUALIFY
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Pending before the Court is Defendant Valley County’s and Kenneth Arment’s 1
motion to disqualify Plaintiff Christine Andersen’s counsel and former Valley County
Prosecuting Attorney, Matthew Williams. The Court heard oral argument from the parties
on May 25, 2017. After review of the record, consideration of the parties’ arguments and
relevant legal authorities, and otherwise being fully advised, the Court issues the
following memorandum decision and order granting Defendants’ motion. 2
BACKGROUND
To better understand the motion to disqualify, the Court will set forth separately:
(1) the background giving rise to Andersen’s employment action against Valley County
(“County”); and (2) a timeline containing relevant facts of Williams’s role as the Valley
County Prosecuting Attorney.
I.

Andersen’s Employment with Valley County 3
On July 26, 2004, Valley County hired Andersen as a juvenile probation officer.

The juvenile probation officer position is part of the County’s Court Services Office; the
Court Services Director is the direct supervisor of probation officers. From 2004 through
2013, Andersen had one disciplinary mark on her record: in January of 2013, Andersen

1

The Court collectively refers to Valley County and Arment as “Defendants” for the purpose of this motion unless
indicated otherwise.

2

All parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
(Dkt. 28.)
3
To provide context in understanding the motion, the factual background of Andersen’s employment is taken from
her Complaint and declarations from the record. However, this does not constitute findings of fact by the Court.

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was placed on a Performance Improvement Plan by her then supervisor, Doug Miller,
related to timeliness of returning telephone calls, and delivery and filing of documents. 4
In October of 2013, the County hired Defendant Skip Clapp as the Court Services
Director. In September of 2014, Andersen reported to Human Resource Director,
Defendant Kenneth Arment, inappropriate comments allegedly made by Clapp to a
probation client, which instigated an internal investigation led by Arment. Andersen
alleges this incident caused Clapp to retaliate against her.
Later the same month, Clapp contracted with a new mental health treatment
provider for Court Services; the new provider delivered its services to clients by
videoconference. Andersen believed many of her probation clients needed treatment in an
in-person capacity, and thus, referred certain clients to a different treatment provider.
When Clapp learned Andersen had not referred all of her clients to the video-provider,
Clapp threatened to “write-up” Andersen. However, Andersen continued to refer her high
risk clients to in-person providers. On or about December 18, 2014, Clapp sent Andersen
home on leave pending an investigation regarding a complaint filed against her by her coworker, Defendant Ron Jenks. Andersen was terminated from her employment on
December 29, 2014, with the “exit reason” violation of County policy.
On December 26, 2016, Andersen filed her Complaint against the County, Clapp,
Arment, and Jenks, alleging violations of the First, Fifth, and Fourteenth Amendments to

4
On March 19, 2012, the Court Services Director at the time, Doug Miller, issued a “Verbal Coaching” notice to
Andersen regarding “Behavior Outside of the Workplace/Appearance of Conducting Work on Personal Time.” Dec.
Miller, Ex. B (Dkt. 9-2). According to the document, a “Verbal Coaching” notice is not a disciplinary action. Id.

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the United States Constitution pursuant to 42 U.S.C. § 1983. (Dkt. 1.) She alleges also a
Monell claim against the County for negligent hiring, negligent retention, failure to
discipline, and failure to train, in addition to several state law claims.
II.

Williams as County Prosecuting Attorney
On August 6, 2004, Williams was appointed Valley County Prosecuting Attorney.

Dec. Williams, ¶ 13 (Dkt. 26 at 3). In December of 2007, Williams hired Defendant
Arment as a deputy prosecuting attorney. Id. at ¶ 15; Dec. Arment, ¶ 2 (Dkt. 13 at 2).
From his employment as Prosecuting Attorney, Williams contends he is aware of one
disciplinary action taken against Arment—a written warning for performance
deficiencies issued to Arment by Williams. Dec. Williams, ¶ 17, (Dkt. 26 at 4). Williams
opines now that “Arment was the single worst hiring decision I made while serving in my
capacity as Valley County Prosecutor, and the only employee I ever had to reprimand for
failing to show up to work on a consistent basis.” Id.
During Williams’s first term as Prosecuting Attorney, the County did not have a
department handling the human resources function for County employees. Id. at ¶ 87. As
a result, some duties were handled by the Prosecutor’s Office. Id. During this time,
Williams acknowledges the Prosecutor’s Office consulted with other departments on
some human resources issues regarding discipline and termination. Id. at ¶ 90. However,
Williams contends none of the named Defendants in this lawsuit were the subject of any
of these disciplinary or termination matters. Id. at ¶ 87. Williams’s duties changed

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sometime in 2008 or 2009, when the County Treasurer began handling the human
resources function. Id. at ¶ 89.
During his first seven years as Prosecuting Attorney (2004 through 2011),
Williams did function, at least some of the time, as counsel for the County in civil as well
as criminal matters. 5 Dec. Williams, ¶ 45 (Dkt. 7). His civil representation included
providing advice to the County on personnel and human resources issues. Id. During this
period, however, Williams recalls only one instance where he consulted with then Court
Services Director, Doug Miller, on a personnel matter. Id. at ¶ 46. The incident
tangentially involved Defendant Clapp, who was cleared of any wrong doing and was
never charged or disciplined for the incident. Id. at ¶ 48.
On January 13, 2013, Williams left his position as Prosecuting Attorney. Dec.
Williams, ¶ 5. (Dkt. 26 at 2). On the same day, the Board turned over two of its three
members. The remaining Board member, Gordon Cruickshank, has been on the Board
since 2007. Cruickshank alleges he sought counsel from Williams on numerous occasions
prior to January of 2013, as often as once per week, while he served as Prosecuting
Attorney. Dec. Cruickshank, ¶¶ 3-4 (Dkt. 27-1 at 2). According to Cruickshank, when the
Court hired outside counsel to handle employment disputes, Williams was present during

5

On November 7, 2011, the Board passed Resolution 12-2, which declared that the Board would seek legal services
from independent counsel instead of from the Prosecutor’s Office. Id. at Ex. 2—Resolution 12-2 (Dkt. 26-2). As a
result of the Resolution, the Board sought legal advice from the Idaho Counties Risk Management Program
(ICRMP), rather than the Prosecutor’s Office, moving forward.

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conversations discussing details concerning certain unspecified facts, law, and strategies.
Id. at ¶ 8.
In October of 2013, Clapp was hired as the Director of Court Services. Dec.
Clapp, ¶ 2 (Dkt. 6 at 2); Compl., ¶ 5.9 (Dkt. 1 at 6). And, on June 1, 2014, Arment was
hired from his deputy prosecuting position into the position of Human Resource Director
by the Board. Dec. Arment, ¶ 2 (Dkt. 13 at 2).
LEGAL STANDARD
“Motions to disqualify counsel are decided under state law.” Pesky v. United
States, No. CIV. 1:10-186 WBS, 2011 WL 3204707, at *1 (D. Idaho July 26, 2011)
(citing In re Cnty. of Los Angeles, 223 F.3d 990, 995 (9th Cir.2000)). The Court must
look also to the Idaho Rules of Professional Conduct as adopted and interpreted by the
Idaho Supreme Court. Parkland Corp. v. Maxximum Co., 920 F. Supp. 1088, 1091 (D.
Idaho 1996); see also Mark J. Fucile, Applied Legal Ethics: Disqualifying Counsel in
Idaho State and Federal Courts, 60 Advocate 41, 42 (2017) (The Idaho Rules of
Professional Conduct “effectively supply the substantive law on whether an ethics
violation warranting disqualification has occurred.”).
“The right to disqualify counsel is within the discretion of the trial court as an
exercise of its inherent powers.” United States v. Obendorf, No. 1:15-CR-00254-BLW,
2016 WL 1595347, at *2 (D. Idaho Apr. 20, 2016) (citing United States v. Wunsch, 84
F.3d 1110, 1114 (9th Cir. 1996)). “Regarding motions to disqualify counsel in Idaho
generally, it is clear that ‘[t]he moving party has the burden of establishing grounds for
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disqualification.’” Id. (quoting Weaver v. Millard, 819 P.2d 110, 115 (Idaho Ct. App.
1991)). Moreover, “[t]he cost and inconvenience to clients and the judicial system from
misuse of the rules for tactical purposes is significant. Because of this potential for abuse,
disqualification motions should be subjected to ‘particularly strict judicial scrutiny.’”
Optyl Eyewear Fashion Int'l Corp. v. Style Co., Ltd., 760 F.2d 1045, 1050 (9th Cir.1985)
(quoting Rice v. Baron, 456 F.Supp. 1361, 1370 (S.D.N.Y.1978)).
When deciding whether to disqualify counsel, “[the] goal of the court should be to
shape a remedy which will assure fairness to the parties and the integrity of the judicial
process. Whenever possible, courts should endeavor to reach a solution that is least
burdensome to the client.” 6 Weaver, 819 P.2d at 115.
DISCUSSION
Defendants seek an order disqualifying Williams as counsel for Andersen on the
ground that his representation will require Williams to use confidential information he
acquired during the course of his representation to the disadvantage of the County, in
violation of Idaho Rule of Professional Conduct 1.9(c). 7 Defendants allege also William’s
representation of Andersen is both prejudicial to the County and contrary to sound public
policy. For the following reasons, the Court will grant Defendants’ motion.

6

Defendants cite to the four-part test in Weaver v. Millard, 819 P.2d 110, 116 (Idaho Ct. App. 1991), to determine
whether an appearance of impropriety alone will give a party standing to interfere with an adverse party’s choice of
counsel. Plaintiff does not contest Defendants’ standing to bring this disqualification motion.
7

Defendants contend Williams’s representation of Andersen is also in violation of the Idaho Rules of Professional
Conduct 1.9(a) and 1.11. Because the Court finds grounds for disqualification under Rule 1.9(c), the Court needs not
address Defendants’ additional or alternative grounds for disqualification.

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I.

Disqualification Pursuant to Idaho Rule of Professional Conduct 1.9(c)
Defendants seeks to disqualify Williams under Idaho Rule of Professional

Conduct 1.9(c) because, throughout the course of his employment as Prosecuting
Attorney, Williams was intimately involved in various personnel issues and
“undoubtedly” acquired confidential factual information about the Defendants.
Defendants contend also that he acquired confidential information about other
Valley County employees who will be witnesses in this case through his
interactions, observation, and performance of his prosecutorial duties. Defendants
allege Williams may seek to use this information in the current litigation to the
disadvantage of Defendants.
Idaho Rule of Professional Conduct 1.9(c) provides:
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require with
respect to a client, or when the information has become generally
known; or
(2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client.
The Court finds it highly likely that information Williams acquired through his
representation of the County may be used to disadvantage the Defendants in this
litigation. Most troublesome is the information Williams acquired though his past
personal and professional relationship with Defendant Arment. When Williams was
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Prosecuting Attorney, he hired Arment as his Deputy Prosecuting Attorney in December
of 2007—Williams and Arment worked side-by-side for five years. Now, Williams is
pursuing a claim against the County for negligent hiring and training of Arment, Jenks,
and Clapp by his former client, the Board of Commissioners of Valley County.
Williams’s argument that none of the information gained during his working
relationship with Arment is not relevant to Andersen’s claim of negligent training and
supervision of Arment, is unavailing. In his own declaration, Williams opines that hiring
Arment as a deputy prosecutor was “one of the worst hiring decisions he had ever made.”
Through their five year working relationship, Williams acquired knowledge he would not
otherwise have about Arment—knowledge that may very well disadvantage Defendants
in this litigation. Williams cannot automatically flip a switch and purge himself of all the
information he gained about Arment, including Arment’s education, experience, skills,
and abilities, during the course of his working relationship with him and while advising
their mutual client—the County. This information would include by logical extension the
weaknesses in human resource knowledge or deficits in training Arment had prior to the
Board hiring Arment as Human Resource Director. 8

8

Although the facts in this lawsuit relate primarily to events which occurred from 2014 through 2015, when
Williams was no longer Prosecuting Attorney, information Williams obtained through his attorney-client
relationship with the County inevitably may come into play in connection with his representation of Andersen. For
instance, when Williams provided counsel to former Court Services Director Doug Miller regarding Defendant
Clapp.

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II.

Prejudice to County and Public Policy Concerns
Defendants contend they would be unfairly prejudiced if Williams is permitted to

continue as counsel for Andersen. Specifically, they contend that, through Williams’s
role as Prosecuting Attorney he acquired information about the work history, discipline,
training, evaluations, and qualifications of the people with whom he worked, and against
whom Andersen now alleges negligence. Defendants argue also that public policy
concerns support disqualification of Williams. They contend Valley County’s employees
are entitled to share with the Prosecuting Attorney—who is bound under Idaho Code
Section 31-2604 9 to prosecute, defend, and advise the Board and officers—confidential
information about their attitudes, litigation philosophy, procedures, strategies, polices and
the like without fear that the Prosecuting Attorney will take that information and later use
it against them.
Underlying the Court’s determination as to whether disqualification is necessary
“is the concern that parties to the litigation must have complete confidence in the judicial
process that neither party has the possibility of an unfair advantage and that case will be
presented on a level playing field.” Parkland Corp. v. Maxximim Co., 920 F.Supp 1088,
1093 (D. Idaho 1996).

9

It is the duty of the prosecuting attorney to:
To give advice to the board of county commissioners, and other public officers of his county, when
requested in all public matters arising in the conduct of the public business entrusted to the care of
such officers.

Idaho Code § 31-2604(2).

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Upon review of the declarations of Williams, Clapp, Arment, Miller, and
Cruickshank, the Court concludes that there is more than a possibility that Andersen
would have an unfair advantage in this case given the nature of Williams’s long-standing
relationship with the County and its employees, against whom Andersen asserts her
claims in this lawsuit. Like his relationship with Arment, in the first seven years as
Prosecuting Attorney, Williams routinely had confidential discussions with Board
members and other County supervisors about sensitive personnel issues. While Williams
may not have appeared as counsel for the County in any employment related lawsuits,
this does not change the fact that many of the discussions Williams had with County
employees were in confidence and in the context of the attorney-client relationship.
Disqualification of Williams as an advocate for Andersen is the only means to
maintaining a level playing field in this litigation.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Defendants’ Motion to Disqualify (Dkt. 12) is GRANTED;

2)

Plaintiff has 21 days from the date of this order to provide written notice to
the Court indicating how and by whom she will be represented;

3)

All deadlines in the Court’s Case Management Order (Dkt. 20) and the
responses to the pending motions to dismiss (Dkt. 5, 22) are stayed until
further order of the Court; and

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4)

The telephonic status conference for June 14, 2017 is VACATED and
reset for June 22, 2017 at 3:00 p.m. MST. Counsel for Defendants to
initiate the call; once all parties are on the line, connect to the Courtroom at
[phone].
May 26, 2017

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