UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA EX 

REL MARK CHRISTOPHER TRACY, 

 Plaintiff - Appellant, 

v. 

EMIGRATION IMPROVEMENT 

DISTRICT, a Utah Special Service 

District; BARNETT INTERMOUNTAIN 

WATER CONSULTING, a Utah 

corporation; R. STEVE CREAMER; 

FRED A. SMOLKA; MICHAEL 

HUGHES; DAVID BRADFORD; MARK 

STEVENS; CAROLLO ENGINEERS, a 

California professional corporation; AQUA 

ENVIRONMENTAL SERVICES, a Utah 

corporation; LYNN HALES; ERIC 

HAWKES; AQUA ENGINEERING, a 

Utah corporation; JOE SMOLKA; 

RONALD R. RASH; KENNETH WILDE; 

MICHAEL B. GEORGESON; KEVIN W. 

BROWN; ROBERT ROUSSELLE; 

LARRY HALL; DON A. BARNETT, 

 Defendants - Appellees. 

No. 17-4062 

(D.C. No. 2:14-CV-00701-JNP-PMW) 

(D. Utah) 

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ORDER AND JUDGMENT*

_________________________________ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 22, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges. 

_________________________________ 

Mark Christopher Tracy appeals from the district court’s orders disqualifying 

his counsel, denying his request for reconsideration of the disqualification order, and 

dismissing his second amended complaint for failure to obtain new counsel. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the original 

disqualification because of the conflict of interest between Tracy and his counsel on a 

matter collateral to the focus of the litigation. But we reverse the court’s denial of 

his motion for reconsideration because the conflict had been resolved and there 

apparently would be no prejudice to the court or any party. As a result, the dismissal 

of the second amended complaint must also be reversed. We remand for further 

proceedings. 

I. 

Mr. Tracy, acting as a relator, filed a qui tam complaint against the defendants 

under the False Claims Act, 31 U.S.C §§ 3729 et seq. Early in the litigation he 

directed his attorney, Phillip Lowry, to record a lis pendens against a water share 

owned by defendant Emigration Improvement District (EID). EID responded with a 

motion seeking release of the lis pendens as well as attorney fees and statutory 

damages. 

The district court granted EID’s motion and instructed EID to file a proposed 

judgment. EID’s proposed judgment declared both Mr. Tracy and Mr. Lowry’s law 

firm, Christensen and Jensen, P.C. (C&J), to be jointly and severally liable. 
3 

Mr. Lowry filed an objection, purportedly on behalf of both Mr. Tracy and C&J, 

which argued only that it would be improper to make C&J liable. 

Because the objection appeared to advance the interests of Mr. Lowry and C&J 

at the expense of Mr. Tracy, the district court became “concerned that this [objection] 

presents an unwaivable conflict of interest.” Aplt. App. at 205. It therefore issued an 

order directing Mr. Lowry and C&J to show cause why they should not be 

disqualified from representing Mr. Tracy. 

After C&J filed its response to the show-cause order, the court issued a 

memorandum decision and order disqualifying C&J and Mr. Lowry. The order also 

struck the objection, instructed Mr. Tracy to obtain new counsel to respond to the 

proposed judgment, and directed C&J and Mr. Lowry to obtain outside counsel or 

request permission to represent themselves. 

Mr. Tracy, represented by new counsel, filed a response to the disqualification 

order and asked the court to reconsider its decision to disqualify C&J. C&J, 

represented by outside counsel, also filed a response in which it withdrew its 

objection to the proposed judgment and stated that “[i]n order to most directly 

address the Court’s concerns, C&J intends to pay the award of damages and 

attorneys’ fees for the wrongful lis pendens.” Id. at 248. 

The court declined to reconsider its disqualification order and directed 

Mr. Tracy to obtain new counsel for the entirety of the case within 21 days or risk 

dismissal of his complaint. A week later, it ordered entry of judgment against 
4 

Mr. Tracy and C&J for the attorney fees and statutory damages awarded to EID. The 

court also ordered release of the lis pendens. 

Mr. Tracy later submitted a status report stating that he had “spoken with 

23 attorneys and law firms in an effort to obtain new counsel, but all have declined 

for various reasons.” Id. at 276. He also reiterated his desire to have C&J continue 

to represent him in the qui tam action because he “believe[d] it would be in my best 

interest to have them reinstated as my counsel.” Id. at 278. He again requested that 

the court reconsider its disqualification order. The district court denied the renewed 

request for reconsideration and dismissed the action without prejudice because pro se 

relators may not prosecute qui tam actions. 

II. 

We review for abuse of discretion the district court’s disqualification order 

because “the control of attorneys’ conduct in trial litigation is within the supervisory 

powers of the trial judge, and is thus a matter of judicial discretion.” Cole v. Ruidoso 

Mun. Sch., 43 F.3d 1373, 1383 (10th Cir. 1994) (internal quotation marks omitted); 

see also Chavez v. New Mexico, 397 F.3d 826, 839 (10th Cir. 2005) (“We review a 

district court’s decision on a motion to disqualify counsel for abuse of discretion.”). 

Likewise, we review for abuse of discretion the district court’s decision to deny 

Mr. Tracy’s motion to reconsider the disqualification order. See Van Skiver v. United 

States, 952 F.2d 1241, 1243 (10th Cir. 1991). “A district court abuses its discretion 

if its decision is arbitrary, capricious, whimsical, or manifestly unreasonable.” Bylin 

v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (internal quotation marks omitted). 
5 

Mr. Tracy argues that the district court abused its discretion when it 

(1) disqualified his counsel without holding an evidentiary hearing and making 

factual findings; (2) ordered the drastic remedy of disqualification; and (3) refused to 

reinstate his counsel after the purported conflict was mooted. His first issue was not 

preserved below. He never requested that the district court hold an evidentiary 

hearing nor did he argue to the district court that it was required to hold an 

evidentiary hearing at any point during the proceedings in the district court. We 

therefore decline to address it. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) 

(“It is the general rule, of course, that a federal appellate court does not consider an 

issue not passed upon below.”). We have explained that we will consider new 

arguments for reversal on appeal “only if the appellant can satisfy the elements of the 

plain error standard of review.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 

(10th Cir. 2011). And ordinarily we will not review for plain error unless the 

appellant argues why that standard has been satisfied, see id. at 1130-31, but 

Mr. Tracy has not so argued. 

We also affirm the original disqualification order. The district court 

considered the nonexhaustive factors set forth in Parkinson v. Phonex Corp., 

857 F. Supp. 1474, 1476 (D. Utah 1994): 

The egregiousness of the violation, the presence or absence of prejudice to the 

other side, and whether and to what extent there has been a diminution of 

effectiveness of counsel are important considerations. In addition, equitable 

considerations such as the hardship to the other side and the stage of trial 

proceedings are relevant. The essential issue to be determined in the context 

of litigation is whether the alleged misconduct taints the lawsuit. 
6 

It concluded that disqualification was appropriate because all the factors weighed in 

favor of disqualification. The court found that (1) the offense was egregious because 

Mr. Lowry and C&J “advance[ed] arguments to serve their own interests at the direct 

expense of their client’s interests,” Aplt. App. at 224; (2) there was prejudice to 

Mr. Tracy because “his own counsel advance[d] arguments against his interests,” id. 

at 225; (3) “there has been a significant diminution of the effectiveness of counsel” 

because “[the] case has ground to a halt due to the conflict of interest” and 

“adversarial briefing . . . will not be complete until Mr. Tracy obtains outside 

counsel,” id. at 225-26; and (4) “[w]hile the case was filed some time ago, much of 

the elapsed time was spent waiting for the United States to determine whether it 

would intervene in this action” so “[t]he case is still in the earliest stage,” id. at 226. 

We see no abuse of discretion in the court’s initial decision to disqualify C&J. 

Not so for the denial of the motion to reconsider. C&J responded to the 

disqualification order by removing its objection to the proposed judgment and 

expressing its intent to pay the judgment in full, thereby eliminating the source of the 

conflict with Mr. Tracy. Mr. Tracy also responded to the disqualification order and 

moved for reconsideration. He stated that (1) he did not believe there was a conflict 

between himself and C&J, but even if there was one, he waived the conflict; (2) there 

was no suggestion that C&J was conflicted on any issue other than the lis pendens 

issue, so after that was resolved there was no reason why C&J could not resume 

representing him for the remainder of the case; (3) C&J’s continued representation 

would not prejudice any other party; (4) there was no ongoing conflict that would 
7 

cause his former attorneys to be less zealous in advocating for him; and 

(5) disqualification would create a considerable hardship for him and would cause 

him to be severely prejudiced. He requested “reinstatement of C&J because it would 

be in his own best interests for C&J to continue to represent him in this matter.” 

Aplt. App. at 238 

Denying the motion to reconsider, the district court said that the conflict 

between Mr. Tracy and C&J was not waivable. Although acknowledging that 

disqualification of counsel would be “disruptive,” it determined that the hardship to 

Mr. Tracy did not rise to the level of “‘manifest injustice’” sufficient to justify 

reconsideration of its disqualification order. Id. at 263 (quoting Servants of 

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The court acknowledged 

C&J’s withdrawal of its objection to the lis pendens judgment and its offer to pay the 

judgment by itself, but it said that “[c]ounsel cannot expect to act in a manner 

warranting disqualification in one aspect of a case and then return to the rest of the 

case as if the conduct never occurred—the taint of such conduct cannot be artificially 

confined to discrete issues in a case.” Id. It concluded that C&J’s actions were 

“plainly insufficient to undo the taint on the underlying lawsuit.” Id. 

The court also denied Mr. Tracy’s renewed request for reconsideration in his 

status report, which stated that he had been unable to obtain an attorney within the 

21 days allotted because the 23 attorneys and law firms he had spoken with had 

declined for various reasons. The court’s denial was “based on the reasoning in its 

previous order.” Id. at 279. 
8 

In our view the denial of the final request for reconsideration was an abuse of 

discretion. To begin with, the request included “new evidence previously 

unavailable”—Mr. Tracy’s inability to obtain counsel—which justified 

reconsideration. See Servants of Paraclete, 204 F.3d at 1012. 

Turning to the merits, the district court did not give adequate consideration to 

the prejudice suffered by Mr. Tracy and did not adequately explain how the 

participation of his attorneys for the remainder of the case would taint the litigation. 

As a general matter, a litigant has the “right to employ counsel of [his] choice.” 

Smith v. Whatcott, 774 F.2d 1032, 1035 (10th Cir. 1985). And here the prejudice to 

Mr. Tracy is greatly magnified because he asserts that he has been unable to obtain 

any replacement counsel (an assertion not disputed by opposing counsel or the court 

below), which precludes him from pursuing his qui tam claim. It is hard to see how a 

party could be more severely prejudiced than by dismissal of his suit. 

To justify such prejudice, the taint to the litigation must be significant. 

Typically, ethical violations that require disqualification involve “(1) a conflict of 

interest that prevents zealous advocacy or (2) the potential use of privileged or 

confidential information about one party that would give an unfair advantage to a 

present client.” Archuleta v. Turley, 904 F.Supp.2d 1185, 1192 (D. Utah 2012). The 

second circumstance is certainly not present here. As for the first, the district court 

was properly concerned that Mr. Tracy’s attorneys were not providing zealous 

representation when they sought to free themselves from any sanction for filing the 

improper lis pendens and placing the full sanctions burden on their client. But even 
9 

though the court properly considered that conduct to be egregious, it has not 

explained why there should now be concern about zealous representation by C&J. 

There is no longer any apparent conflict of interest regarding a matter under litigation 

and Mr. Tracy, himself an attorney, should be able to adequately assess the risk of a 

conflict. Perhaps there is a problem with the representation that was obvious to the 

district court but has escaped us. EID’s brief does not assist us in this regard, 

arguing solely that the “District Court’s refusal to reinstate [C&J], following its 

agreement to pay damages arising from the wrongful lien, was not an abuse of 

discretion because its prior conduct tainted the lawsuit.” Aplee. Br. at 33. For now, 

therefore, we must reverse and remand for either a more complete explanation or the 

grant of the motion to reconsider. 

III. 

We affirm the district court’s initial disqualification order, but we reverse its 

decision denying Mr. Tracy’s motion to reconsider that order and the dismissal of the 

case, and we remand for further proceedings consistent with this opinion. 

 Entered for the Court 

Harris L Hartz 

Circuit Judge