Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation et al
Filing
26
MEMORANDUM DECISION and Orderdenying 17 Motion to Disqualify Counsel. Signed by Judge Dee Benson on 8/6/13. (jlw)
FILED
U.S. DISTRICT caUR r
IN THE UNITED STATES COURT FOR THE DISTRI6~3~~TlH A
CENTRAL DIVISION
to: 21
DISTRlCT OF UTAH
BY:
~---.-......
LYNN D. BECKER
MEMORANDUM DECISION AND
ORDER
Plaintiff,
vs.
Case No. 2: 13-CV-00123
UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION, a federally
chartered corporation; UTE ThTDIAN TRIBE
OF THE UINTAH AND OURAY
RESERVATION, a federally recognized
Indian tribe; THE UINTAH AND OURAY
TRIBAL BUSINESS COMMITTEE, and UTE
ENERGY HOLDINGS, LLC, a Delaware
LLC,
Defendants,
This matter is before the court on defendants' motion to disqualifY counsel (Dkt. No. 17.)
A hearing on this motion was held on July 15,2013. Before the hearing, the court considered the
memoranda submitted by the parties. Since taking the motion under advisement, the court has
further considered the law and facts relating to the motion. Now being fully advised, the court
issues the following Memorandum Decision and Order.
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BACKGROUND
From approximately April 2004 to November 2004, the David K. Isom Law Offices ('the
Firm") represented the Ute Tribe and several of its members in two cases and in some non
litigation matters ("2004 actions"). (Dkt. No. 17-1 at 3-4) J. Preston Stieff, who was an
employee of David K. Isom Law Offices at the time, was the primary attorney in the 2004
Actions. (Dkt. No. 19-2 at 3.) As such, he received confidential information about the Ute Tribe.
(Dkt. No. 17-1 at 4.) Isom himself had little involvement in the actions and claims to have
received no confidential or privileged information from or about the defendants (Dkt. No. 19-2 at
3.) The contract at issue in the current suit (the "Becker contract") became effective March 1,
2004, about a month before the Firm began its representation of the Ute Tribe. (Dkt. No.3 at 3.)
However, the compensation plaintiff seeks pursuant to that contract stems, at least partially, from
services he performed in regard to the same oil and gas fields that were involved in one of the
2004 actions.
DISCUSSION
Plaintiff has filed a suit against defendants because he believes they owe him
compensation and two percent of the net revenue distributed to Ute Energy Holding, LLC from
Ute Energy, LLC as consideration for services he provided to the Tribe as its Land Division
Manager of the Energy and Minerals Department. (Dkt. No.3 at 5-6.) Plaintiff hired Mr. Isom to
represent him in this suit. Defendants have responded to Isom's hiring by filing a motion to
disqualify him as counsel for plaintiff pursuant to URPC 1.9. The burden of proof in a motion to
disqualify counsel is carried by the party seeking disqualification. United States v. Stiger, 413
2
F.3d 1185, 1196 (10th Cir. 2005); Parkinson v. Phonex Corp., 857 F. Supp. 1474, 1480 (D. Utah
1994) ("The burden of disqualification is on [the party seeking disqualification],,).
URPC 1.9 provides the standard for disqualifying an attorney from a case:
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.
Defendants contend that all of these elements have been met. They assert that Isom
represented the Ute Tribe in several matters in 2004, that those matters are the same or
substantially related to the current matter, that Becker's interests are materially adverse to the Ute
Tribe's interests, and that the Tribe did not consent to Isom's representation of plaintiff in this
matter. (Dkt. No. 17 at 4-10.)
Defendants specifically point to Isom's work in Wopsock v. Natchees, No. 2:04-CV
00675-TS, slip op. (D. Utah June 21, 2005), afJ'd279 Fed. App. 679 (10th Cir. 2008); Shaw
Resources Limited, LLC v. Pruitt, Gushee & Bachtell, P. c., Case No. 040902251 (3d Jud. Dist.,
Salt Lake County, UT); and in some non-litigation matters to show that he represented the Ute
Tribe in matters that are substantially related to the current matter. (Dkt. No. 17 at 4-7.)
Defendants argue that the matters involved in the 2004 actions are substantially related to
the current matter in three ways. First, defendants will use many of the same defenses in the
present litigation as they used in the 2004 actions. Specifically, the Ute Tribe wi11 argue that it
did not waive its sovereign immunity and that Becker did not exhaust the Tribe's unique
administrative remedies, just as it argued in the Wopsock case. (Dkt. No. 17 at 6.) Second, the
Shaw case involved some of the same oil and gas fields that plaintiff worked on as part of the
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Becker contract. (Id at 5-6.) Third, the Firm's non-litigation work included negotiating a
contract for the Ute Tribe and the current case entirely turns on the contract the Tribe entered into
with Becker just a few months before the Firm began its representation of the Tribe. (Id at 6.)
Plaintiff denies defendants' assertion that the current matter is substantially related to
Isom's previous representation of the Ute Tribe. (Dkt. No. 19 at 2.) Instead, Plaintiff argues that
defendants misapprehend the "substantially related" prong ofURPC 1.9 and have not
demonstrated that there are any factual similarities between the 2004 actions and the current
matter.ld at 4-5.
The court finds that defendants have failed to prove that the 2004 actions are substantially
related to the current matter. First, Isom's representation of the Ute Tribe in Wopsockwas not
factually related to the current matter. Regarding URPC 1.9, the 10th Circuit has ruled that courts
should evaluate "substantiality by focusing on the factual nexus between the prior and current
representation rather than a narrower identity of legal issues." SLC Limited V v. Bradford Group
West, Inc., 997 F.2d 464, 467 (10th Cir. 1993). Consequently, defendants' argument that the
2004 actions are substantially similar to the current matter because the Ute Tribe used legal
defenses in Wopsock that it plans to use in the current matter fails. The Wopsock case was
brought by former members of the Ute Tribe Business Committee to dispute the committee's
membership and to allege violations of the Tribe's constitution. Wopsock v. Natchees, 279 F.
App'x 679, 681 (lOth Cir. 2008). The case did not involve a request for compensation for
services provided to the Tribe pursuant to a contract, which is the fundamental fact in the current
case. The only similarity between Wopsock case and the current case is that the Ute Tribe plans to
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use the general defenses that it did not waive its sovereign immunity and that Becker did not
exhaust the Tribe's administrative remedies, which it would likely use in many suits brought
against it despite how factually dissimilar each case may be.
Similarly, defendants have not persuaded the court that the matters involved in the Shaw
case are substantially similar to the current litigation. It is likely that some of the services Becker
provided to the Ute Tribe pursuant to the Becker contract involved the same gas and oil fields
that were at stake in the Shaw case, but that factual connection between the two cases is not
substantial enough to disqualify Isom from the present case. For purposes ofURCP 1.9, the term
substantial is defined as denoting "a material matter of clear and weighty importance." URCP
1.0(m). The gas and oil field connection presented by defendants does not bear any clear or
weighty importance to the present case. Although Becker's duties as Land Division Manager of
the Energy and Minerals Department likely included planning for the specific oil and gas fields at
issue in Shaw, his duties were much more expansive. His duties encompassed the management of
all of the Land Division's responsibilities, which included the following:
[T]he administration and maintenance of leases, contracts, surface use, unitization and all
other types of agreements covering Tribal energy, surface and minerals resources.... The
Land Division shall also be responsible for the issuance, administration and maintenance
of Business Licenses, assess permits and the supervision of all energy and/or mineral
related filed operation.
(Dkt, No. 20 at 3).
Despite indicating that Becker's duties were vast, defendants have not provided any facts
that indicate how big of a role the Shaw oil and gas fields played within those vast duties.
Consequently, defendants have failed to prove that this factual connection is substantial.
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Finally, defendants have also failed to prove that the 2004 non-litigation matters are
substantially similar to the current matter. Comment 2 to URPC 1.9 states that "a lawyer who
recurrently handled a type of problem for a former client is not precluded from later representing
another client in a factually distinct problem of the type even though the subsequent
representation involves a position adverse to the prior client." Defendants must therefore
demonstrate something more than the fact that 180m represented the Tribe regarding a separate
contract. They must also demonstrate that the facts relating to that contract are substantially
similar to those relating to the Becker contract. Defendants have not, however, provided any facts
to indicate that the contract negotiated by the Firm was in any way related to the Becker contract,
except that it "pertain[ed] to the Tribe's oil and gas resources." (Dkt. No. 17 at 5.) Such a vague
description does not establish any substantial similarity between the two contracts. Moreover,
defendants do not provide any evidence to refute plaintiff s claims that Isom himself did not
participate in the non-litigation matters and that he did not receive any confidential information
regarding those matters. Therefore, defendants' disqualification motion fails with respect to the
non-litigation matters.
CONCLUSION
For the reasons stated above, defendants' motion to disqualify counsel is DENIED.
IT IS SO ORDERED
DATED this
~ day of August, 201~
;S~~.n--
Dee Benson
United States District Judge
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