CANDY W. DALE, Magistrate Judge.
Pending before the Court is Defendant Valley County's and Kenneth Arment's
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.
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 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.
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 co-worker, 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 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.
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 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.
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 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).
"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 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."
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).
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:
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 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.
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
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).
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.
Idaho Code § 31-2604(2).
