United States District Court, D. Utah
CURT A. MARCANTEL, an individual, Plaintiff,
STEWART TITLE GUARANTY COMPANY, a Texas corporation, COALITION TITLE AGENCY, INC., a Utah corporation, MICHAEL AND SONJA SALTMAN FAMILY TRUST, an entity MICHAEL A. SALTMAN, an individual, and SONJA SALTMAN, an individual, Defendants.
B. PEAD UNITED STATES MAGISTRATE JUDGE.
parties consented to this court's jurisdiction under 28
U.S.C. § 636(c). (ECF No. 20.). The case is presently
before the court on Defendants Michael A. and Sonja Saltman
Family Trust, Michael A. Saltman, and Sonja Saltman's
("Saltmans") "Motion for Sanctions and
Attorneys' Fees." (ECF No. 45.)
attorney Paul D. Colton represented Sara Werbelow and her
husband Jeff Werbelow in connection with a Park City, Utah,
real estate project. (ECF No. 45 at 3.) Mr. Colton was then a
member of the firm Wrona & Parish. (Id. at 2.)
The parties disagree about whether Mr. Colton also formed an
attorney-client relationship with Saltmans based on certain
documents he drafted for both the Werbelows' and
Saltmans' to sign. (Compare Id. at 3-A;
with ECF No. 50 at 4.)
March 29, 2016, Plaintiff Curt A. Marcantel
("Marcantel"), represented by the firm Wrona
DuBois, PLLC, filed the present lawsuit. (ECF No. 45 at
3.) This litigation involves the same property involved in
the 2007 real estate project for which Mr. Colton drafted
documents nearly a decade ago. (Id.) Saltmans are
defendants in this lawsuit. (Id.; see ECF No. 35.)
Mr. Colton is presently a principal or shareholder of Wrona
DuBois, PLLC. (ECF No. 45 at 2-3.) Thus, Saltmans contend
their former attorney now represents their current adversary
in a matter related to the prior representation. (See
Id. at 5.)
September 14, 2016, Saltmans' counsel, Eric P. Lee,
contacted Marcantel's counsel, Mr. Wrona, to advise him
of an asserted conflict with Wrona DuBois representation of
Marcantel. (Id. at 4.) On September 23, 2016, Mr.
Wrona wrote that his preliminary review suggested Mr. Colton
represented the Webelows, but not Saltmans. (ECF No. 45, Ex.
6.) Based on that understanding, he asked Mr. Lee, "what
is your disqualification argument?" (Id.) Mr.
Lee responded the same day by instructing Mr. Wrona to
continue his research and offer thoughts when they were more
fully formed. (Id.) Mr. Lee concluded,
"I'll then advise the client and let you know where
things stand." (Id.) Apparently, the attorneys
exchanged no further emails in September 2016.
counsel left a message for Mr. Wrona on October 7. (ECF No.
51 at 6.) The same day, Saltmans' counsel began preparing
a motion to disqualify Marcantel's counsel. (ECF No. 51
at 6.) Mr. Wrona did not respond to the telephone call until
October 26. (Id.) Mr. Wrona claims he failed to
respond because he was engaged in two jury trials.
(See ECF No. 50 at 6.) On October 27, Mr. Wrona
asked for a draft of the motion to disqualify to inform his
discussion with his client about the alleged conflict.
(Id. at 7.) Mr. Lee's law partner graciously
complied with this request. (ECF No. 45 at 5.) Later the same
day, Wrona DuBois filed a motion to withdraw its
representation of Marcantel. (See ECF No. 41.)
Saltmans responded by filing this motion for sanctions and
argue that Wrona DuBois, PLLC, is disqualified from
representing Marcantel because Mr. Colton has a conflict with
his former clients, the Saltmans. Such a conflict is
proscribed by Utah Rule of Professional Conduct 1.09 and the
conflict is imputed to the firm pursuant to Rule 1.10.
Saltmans argue that Mr. Colton had confidential
communications with Saltmans, their daughter Sara Werbelow,
and her husband Jeff Webelow when Mr. Colton represented the
Werbelows in the 2007 real estate project. Saltmans argue
they should be awarded attorney fees for Wrona DuBois'
decision to continue to represent Marcantel despite a
"clear-cut" conflict. (ECF No. 45 at 10.) Saltmans
contend Wrona DuBois' inaction unreasonably and
vexatiously multiplied the proceedings under 28 U.S.C. §
1927. Alternatively, they argue the court should award them
attorney fees using its inherent power.
argues that Saltmans cannot establish the necessary
prerequisites to demonstrate a violation of 28 U.S.C. §
1927. Marcantel also disputes several of the facts asserted
in Saltmans' brief. Marcantel contends that Mr. Colton
represented only the Werbelows, not Saltmans. While counsel
for Marcantel has withdrawn from the case, Marcantel argues
the withdrawal was an effort to avoid impeding this matter
with litigation about the alleged conflict; it was not a
confession that a conflict exists.
Saltmans offer no evidence that they subjectively believe
they had an attorney-client relationship with Mr.
missing from the Saltmans' filings is any evidence that
they actually believe Mr. Colton to be their former attorney.
An attorney-client relationship may be express or implied.
See Bistline v. Jeffs, Civil No. 2:16-788, 2017 WL
108039, at *6 (D. Utah Jan. 11, 2017). Here, Saltmans appear
to assert they had an implied relationship with Mr. Colton.
To establish such a relationship, two things must be true.
Saltmans "must subjectively believe that the attorney
represents [them] and that belief must be reasonable under
the circumstances." Id. Saltmans offer no
testimony that they subjectively believe Mr. Colton was their
lawyer. Additionally, counsel's arguments conspicuously
sidestep this topic. Saltmans' reply states: "If
the Saltmans understood Mr. Colton was representing all
four family members with common goals, it is Mr. Colton's
responsibility to [offer evidence to the contrary]."
(See ECF No. 51 at 5) (emphasis added) (footnote
omitted). Saltmans know whether they believe Mr. Colton