Saturday, October 9, 2021

No Small Potatos

The Idaho Supreme Court reversed and remanded a disqualification and gag order in a bicycle accident claim against the property owner.

The issue involved an associate move

The law firm Hepworth Holzer, LLP (“Hepworth Holzer” or “the firm”), petitions this Court for a writ of mandamus or prohibition, seeking relief from a district court order disqualifying it as counsel for Dr. Gary Tubbs in a personal injury lawsuit against Bogus Basin Recreational Association, Inc. (“Bogus Basin”). Bogus Basin was represented by Elam & Burke in the proceedings. Elam & Burke moved to disqualify Hepworth Holzer after an associate attorney who worked at Elam & Burke when Tubbs initiated his lawsuit went to work for Hepworth Holzer and assisted the firm on a memorandum in support of a motion to reconsider filed in the case. The district court granted Elam & Burke’s motion. The district court ordered that “[a]ny attorney associated with Hepworth Holzer, LLP, including [the associate attorney], are disqualified from any further representation of [Dr.] Gary Tubbs in this matter and from providing any information from its files after January 21, 2021, and cannot relay any information discussed or received about this case after January 21, 2021[,] to Tubbs or any new attorney/firm representing Tubbs.” Hepworth Holzer contends the district court’s disqualification and gag order is clearly erroneous and unconstitutional.

The move

Dr. Gary Tubbs was severely injured in a bicycle accident that occurred on Bogus Basin’s property. In 2019, Tubbs hired Hepworth Holzer to represent him on a contingency fee basis in a personal injury lawsuit against Bogus Basin. John Janis was the primary attorney representing Tubbs. Elam & Burke represented Bogus Basin. The case proceeded to summary judgment, where Bogus Basin argued that Tubbs’ claims were barred because, after the accident, he signed three waiver agreements releasing Bogus Basin from any and all liability or claims arising from Tubbs’ use of the Bogus Basin ski area. After Elam & Burke filed Bogus Basin’s motion for summary judgment, but before a final judgment was entered, an associate attorney working for Elam & Burke resigned and started working for Hepworth Holzer. Later, the district court granted summary
judgment to Bogus Basin. After working at Hepworth Holzer for one month, the associate attorney helped draft a memorandum in support of a motion for reconsideration in Tubbs’ case. In the motion to reconsider, Tubbs allegedly raised a new legal argument that Bogus Basin claimed was attributable to the associate attorney’s prior communications and access to internal files while he was still an attorney for Elam & Burke...

Bogus Basin’s motion alleged the associate attorney did research and had knowledge of work product and strategy in defending the case against Tubbs based on his
employment with Elam & Burke. Bogus Basin alleged the associate attorney’s conflict was imputed to the entire firm under Idaho Rule of Professional Conduct (“I.R.P.C.”) 1.10. Tubbs opposed the motion, supported by the declaration of Hepworth Holzer attorney John Janis. The associate attorney also submitted a declaration in which he adamantly denied: (1) ever having represented Bogus Basin while employed by Elam & Burke, (2) having otherwise obtained any confidential information about Bogus Basin, or (3) having used any information related to Bogus Basin to its disadvantage. In support, the associate attorney emphasized that he did not bill Bogus Basin for any legal services—highlighting the brief nature of his involvement in the case.


Hepworth Holzer suffered a distinct and palpable injury from the district court’s order that it cease all representation and communication with Tubbs. The firm had invested significant time, money, and resources into its representation of Tubbs. The value of its reputation and standing in the local legal community is also at stake. Not only did the district court’s order preclude the firm’s ability to recover any financial benefit of that representation, but it also placed Hepworth Holzer  in breach of its contract with Tubbs. Hepworth Holzer’s injury is directly connected to the district court’s order; thus, Hepworth Holzer has standing to petition this Court for relief.

The trial court had jurisdiction to disqualify

Here, the district court used its discretion to grant Bogus Basin’s motion to disqualify Hepworth Holzer based on an imputed conflict of interest. A writ of prohibition is not appropriate here because the district court did not exceed its jurisdiction in issuing the disqualification order. Hepworth Holzer’s request to enter such a writ is therefore denied.

But mandamus relief was appropriate

Here, the district court entered its disqualification and gag order based on its review of documents Elam & Burke submitted to the district court in camera. The documents were not provided to Hepworth Holzer, leaving the firm with no recourse or ability to challenge the district court’s decision, inasmuch as it could not know the basis for the district court’s ruling. The district court erred as a matter of law by limiting Hepworth Holzer’s opportunity to be heard and preventing the firm’s ability to meaningfully respond to Bogus Basin’s claims of impropriety.


Ultimately, no one at Hepworth Holzer, including the associate attorney, could discern what argument allegedly raised confidential arguments that would merit the far-reaching action taken by the district court. The district court needed to consider the prejudice that would result to Tubbs in disqualifying Hepworth Holzer as his 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.” Foster, 145 Idaho at 32, 175 P.3d at 194 (quoting Weaver, 120 Idaho at 697, 819 P.2d at 115) (“whenever possible, courts should endeavor to reach a solution that is least burdensome to the client.”).

Tubbs suffered substantial and catastrophic physical injuries that led to him filing the underlying lawsuit. Tubbs’ prejudice includes the loss of his long-standing counsel who is familiar with the facts of the case and who undertook representation on a contingent fee basis. It is impractical to conclude that Tubbs retaining new counsel is “a plain, speedy and adequate remedy in the ordinary course of law.” The district court’s order disqualifying Hepworth Holzer as counsel is reversed.

And remanded to a new judge

while we make no finding that the district court is biased against Hepworth Holzer in this case, to avoid even the appearance of impropriety we order that the administrative district judge assign a new judge to this case upon remand. This holding is limited to the unique facts presented here and this determination, made via a special writ, should not be viewed as an expanded means of disqualifying a sitting judge throughout a case.

(Mike Frisch)

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