IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SANDRA JIMENEZ,

Plaintiff,

v.

RIVERMARK COMMUNITY CREDIT

UNION, AMERICAN ASSET

RECOVERY, CHRISTOPHER PAYNE,

and ANTHONY PAYNE, JR.,

Defendants.

3:15-CV-00128-BR

 

OPINION AND ORDER 

MICHAEL R. FULLER

OlsenDaines, PC

U.S. Bancorp Tower

111 S.W. Fifth Avenue, 31st Floor

Portland, OR 97204

(503) 201-4570 

KELLY D. JONES

819 S.E. Morrison Street

Suite 255

Portland, OR 97214

(503) 847-4329 

Attorneys for Plaintiff

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Case 3:15-cv-00128-BR Document 36 Filed 05/11/15 Page 1 of 19
KIMBERLEY HANKS MCGAIR

PATRICIA A. WALSH

Farleigh Wada Witt, PC

121 S.W. Morrison Street

Suite 600

Portland, OR 97204-3136

(503) 228-6044 

Attorneys for Defendant Rivermark Community Credit

Union

CHRISTOPHER PAYNE

701 S.E. Hale Place

Greham, OR 97080

(503) 442-3282 

Defendant, Pro Se

ANTHONY PAYNE, JR.

701 S.E. Hale Place

Gresham, OR 97080

(503) 442-3282 

Defendant, Pro Se

BROWN, Judge.

This matter comes before the Court on Plaintiff Sandra

Jimenez’s Motion (#5) to Disqualify the Farleigh Wada Witt Law

Firm. For the reasons that follow, the Court DENIES Plaintiff’s

Motion.

BACKGROUND

The following facts are taken from the Complaint and the

parties’ filings related to the Motion for Disqualification.

Plaintiff alleges in her Complaint that the conduct

underlying this action stems from the repossession of a 2012

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Chrysler Town & Country vehicle financed by the uncle of

Plaintiff’s husband, Alberto Aroche,1

 through Defendant Rivermark

Community Credit on July 18 or 19, 2013. Rivermark affirms in

its Answer that the loan made to Alberto Aroche was secured by

the vehicle and asserts Plaintiff was identified as a coapplicant on the loan.2 No payments were ever made on the loan.

At some point Rivermark hired Defendant American Asset

Recovery (AAR) to repossess the vehicle. 

On January 27, 2014, AAR repossessed the vehicle from

Plaintiff’s home.

At some point in 2014 Plaintiff’s husband, Francisco Aroche,

called the Farleigh Wada Witt law firm and spoke to attorney

Margot Seitz on behalf of Plaintiff because Plaintiff does not

speak English. To the best of Seitz’s recollection, Francisco

Aroche told her that “a company attempted to repossess his

vehicle . . . [and] during the repossession, someone involved

allegedly shoved or punched his wife. I believe he also stated

that his minor daughter saw this event and he was concerned for

her safety.” Decl. of Margot Seitz at ¶ 3.

1 Plaintiff asserts she has never had an account or loan of

any kind with Rivermark and has never been to a Rivermark branch. 

Plaintiff asserts Rivermark forged Plaintiff’s signature on

falsified loan documents “in hopes of tricking her into paying a

debt it knew she didn’t owe.” 

2

 It appears to be undisputed that Plaintiff’s husband,

Francisco Aroche, was not a borrower or co-applicant on the loan.

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Seitz also testifies in her Declaration that, to the best of

her recollection, before Francisco Aroche told her any further

details, she advised him that

Farleigh Wada Witt generally does not handle cases

like the one he described involving allegedly

wrongful repossession and a potential assault. I

believe I also indicated to [Francisco Aroche]

that I do not handle criminal matters and that he

may want to seek advice about criminal assault and

whether to file a police report. I recall asking

[Francisco Aroche] for the name of the

repossessing creditor and indicated that Farleigh

Wada Witt frequently represents creditors so there

also may be a conflict. To the best of my present

recollection, upon being told the name of the

creditor, I ascertained that there was a conflict

and declined representation. I informed

[Francisco Aroche] of the conflict. At that point

he either asked me for or I offered to refer him

to another attorney. To the best of my present

recollection, a day or two later I called

[Francisco Aroche] back and left him a voicemail

message referring him to a consumer law attorney. 

Seitz Decl. at ¶ 4. Francisco Aroche testifies in his

Declaration, on the other hand, that “the Farleigh firm” advised

him that his wife had strong claims against Rivermark. Decl. of

Francisco Aroche at ¶ 5.

On January 26, 2015, Plaintiff filed an action in this Court

alleging: (1) a claim for violation of the Unfair Debt

Collection Practices Act, 15 U.S.C. § 1692f(6)(A) against AAR; 

(2) claims for intentional infliction of emotional harm,

intrusion on seclusion, and negligence against Rivermark; and 

(3) claims for common-law assault, battery, false arrest,

intentional infliction of emotional harm, and intrusion on

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seclusion against all Defendants.

Plaintiff alleges in her Motion to Disqualify that Rivermark

initially hired the Monson Law Office to defend it from

Plaintiff’s action. Plaintiff points to a January 27, 2015,

email to Plaintiff’s counsel from Miles Monson of the Monson Law

Office in which Monson advises Plaintiff’s counsel: “I just

learned that my client, Rivermark Community Credit Union, is

going to use other litigation counsel; therefore, I will not be

able to accept service.” Pl.’s Ex. 1 at 1.

In its Response to Plaintiff’s Motion, Rivermark does not

address the January 27, 2015, email but instead relies on the

Declaration of Harold Scoggins, President of Farleigh Wada, in

which he testifies “Farleigh Wada Witt has represented Rivermark

for at least twenty years.” Scoggins Decl. at ¶ 2.

On February 12, 2015, Rivermark’s counsel at Farleigh Wada,

Kimberly Hanks McGair, received a letter from Plaintiff’s counsel

alleging that Farleigh Wada was conflicted from representing

Rivermark in this matter because an attorney at Farleigh Wada had

consulted with Francisco Aroche. On February 13, 2015, McGair

provided the letter to Scoggins and Scoggins began an

investigation of Farleigh Wada’s alleged conflict. Scoggins

discovered Francisco Aroche had contacted Seitz in January 2014

and Seitz had referred Francisco Aroche to another firm. 

Nevertheless, Farleigh Wada implemented procedures to screen

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Case 3:15-cv-00128-BR Document 36 Filed 05/11/15 Page 5 of 19
Seitz from this matter. 

On February 18, 2015, McGair sent Plaintiff’s counsel a

letter in which she advised him that Farleigh Wada did not

believe there was a conflict of interest and it would not

disqualify itself.

On February 27, 2015, Plaintiff filed a Motion to Disqualify

in which she seeks to disqualify Farleigh Wada from representing

Rivermark in this matter on the ground that Farleigh Wada

previously had an implied attorney-client relationship with

Plaintiff.

On March 19, 2015, the Court held a conference with the

parties regarding Plaintiff’s Motion and other matters. The

Court directed Rivermark to file a Reply to the Motion to

Disqualify.

On March 24, 2015, Rivermark filed a Reply and the Court

took this matter under advisement.

DISCUSSION

As noted, Plaintiff moves to disqualify Farleigh Wada from

representing Rivermark in this matter on the ground that Farleigh

Wada previously had an implied attorney-client relationship with

Plaintiff. 

The Oregon Supreme Court has made clear that it determines

the standards that govern attorneys in Oregon. See, e.g., Brown

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v. Or. State Bar, 293 Or. 446, 451 (1982)(“The disciplinary rules

are standards adopted by this court to govern the supervision and

discipline of attorneys. The professional discipline of

attorneys is within the exclusive jurisdiction of this court.”). 

Thus, this District, in accordance with the rulings of the Ninth

Circuit, has held “[t]he primary responsibility of regulating the

conduct of lawyers in federal practice lies with the district

courts, governed by the rules of professional conduct of the

state in which that district lies.” Evraz Inc., N.A. v. Cont’l

Ins. Co., No. 3:08–CV–00447–AC, 2013 WL 6174839, at *2 (D. Or.

Nov. 21, 2013)(citing Gas–A–Tron of Az. v. Union Oil Co. of Cal.,

534 F.2d 1322, 1325 (9th Cir. 1976)). In addition, the Ninth

Circuit has held district courts have the duty and responsibility

to control and to supervise the conduct of the attorneys

practicing before them. Erickson v. Newmar Corp., 87 F.3d 298,

300, 303 (9th Cir. 1996). Courts in other circuits have reached

the same conclusions. See, e.g., SST Castings, Inc. v. Amana

Appliances, Inc., 250 F. Supp. 2d 863, 865 (S.D. Ohio

2002)(“[T]he power to disqualify an attorney from a case is

incidental to all courts, and a district court is obliged to

consider unethical conduct by an attorney in connection with any

proceeding before it.”). Thus, in this case Oregon’s Rules of

Professional Conduct serve as guideposts for this Court to

analyze Plaintiff’s Motion. 

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Notwithstanding the duties to control and to supervise the

conduct of the attorneys and the duty to protect the attorneyclient relationship, motions to disqualify counsel are

disfavored. Certain Underwriters at Lloyd's, London v. Argonaut

Ins. Co., 264 F. Supp. 2d 914, 918 (N.D. Cal. 2003)(citation and

internal quotation omitted). The party moving to disqualify must

satisfy a "high standard of proof." Sabrix v. Carolina Cas. Ins.

Co., No. CV-02-1470-HU, 2003 WL 23538035, at *1 (D. Or. July 23,

2003)(citing Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d

Cir. 1983)).

On the one hand, because a motion to disqualify is

often tactically motivated, and can be disruptive

to the litigation process, it is a drastic measure

that is generally disfavored. . . . At the same

time, the paramount concern must be the

preservation of public trust both in the

scrupulous administration of justice and in the

integrity of the bar. 

Argonaut, 2003 WL 1922970, at *2 (citation and internal quotation

omitted).

I. Applicable Rules of Professional Conduct

The parties disagree about the standard that the Court must

apply in its analysis. Plaintiff asserts the correct standard is

found in Oregon Rules of Professional Conduct 1.7(a) and 1.9. 

Rule of Professional Conduct 1.7(a) provides in pertinent part:

(a) Except as provided in paragraph (b), a lawyer

shall not represent a client if the representation

involves a current conflict of interest. A

current conflict of interest exists if:

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(1) the representation of one client will

be directly adverse to another client;

(2) there is a significant risk that the

representation of one or more clients will be

materially limited by the lawyer's

responsibilities to another client, a former

client or a third person or by a personal

interest of the lawyer.

Rule of Professional Conduct 1.9(a) provides:

(a) 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 each affected client gives informed

consent, confirmed in writing.

Rivermark, on the other hand, asserts Plaintiff was only a

prospective client. According to Rivermark, because Plaintiff

never became a client of Farleigh Wada, the applicable standard

is found in Rule of Professional Conduct 1.18 , which provides:

(a) A person who consults with a lawyer about the

possibility of forming a client-lawyer

relationship with respect to a matter is a

prospective client.

(b) Even when no client-lawyer relationship

ensues, a lawyer who has learned information from

a prospective client shall not use or reveal that

information, except as Rule 1.9 would permit with

respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not

represent a client with interests materially

adverse to those of a prospective client in the

same or a substantially related matter if the

lawyer received information from the prospective

client that could be significantly harmful to that

person in the matter, except as provided in

paragraph (d). If a lawyer is disqualified from

representation under this paragraph, no lawyer in

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a firm with which that lawyer is associated may

knowingly undertake or continue representation in

such a matter, except as provided in paragraph

(d).

(d) When the lawyer has received disqualifying

information as defined in paragraph (c),

representation is permissible if:

* * *

(2) the lawyer who received the information

took reasonable measures to avoid exposure to

more disqualifying information than was

reasonably necessary to determine whether to

represent the prospective client; and

(i) the disqualified lawyer is timely

screened from any participation in the

matter; and 

(ii) written notice is promptly given to

the prospective client. 

Rivermark notes the conversation that Francisco Aroche (who

is not a signatory to the loan at issue) had with Seitz concerned

whether Seitz would agree to represent Plaintiff in her

contemplated litigation. Seitz testifies in her Declaration that

she refused to represent Plaintiff, and Plaintiff does not

contradict this. As noted, Seitz states she recommended other

counsel to Plaintiff, and the record reflects Plaintiff, in fact,

retained other counsel.

In In re Weidner the Oregon Supreme Court has set out the

standard for determining the point at which the attorney-client

relationship exists. 310 Or. 757, 768 (1990). See also Evraz,

2013 WL 6174839, at *4. In Weidner the Oregon Supreme Court held

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an attorney-client relationship does not have to be explicit, but

instead may be implied when two elements are present: (1) the

putative client subjectively believes the relationship exists and

(2) the putative client’s belief is objectively reasonable and

based on “evidence of objective facts on which a reasonable

person would rely as supporting existence of that” belief. 

Weidner, 310 Or. at 770.

When determining whether an attorney-client relationship

exists, the court should consider all available evidence of

reasonableness, particularly evidence that the putative client

put 

the lawyer on notice that the putative client

[believed the relationship existed]; . . . the

lawyer shared the client's subjective intention to

form the relationship; or . . . that the lawyer

acted in a way that would induce a reasonable

person in the client's position to rely on the

lawyer's professional advice. The evidence must

show that the lawyer understood or should have

understood that the relationship existed, or acted

as though the lawyer was providing professional

assistance or advice on behalf of the putative

client.

Id. “[H]aving established a subjective belief, the putative

client must also show through objective evidence that the lawyer

gave him or her a reasonable basis upon which to base this

subjective belief.” Id.

Here Plaintiff does not point to any evidence that

establishes she subjectively believed Farleigh Wada represented

her. In fact, the record reflects Plaintiff did not contact

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Farleigh Wada again after her husband called that law firm,

Plaintiff found other counsel, and Plaintiff did not notify

Farleigh Wada that she had hired other counsel as would be

expected if she believed she had been represented by Farleigh

Wada. In addition, in a February 12, 2015, letter to McGair,

Plaintiff’s counsel notes Seitz “ultimately referred [Francisco

Aroche] to Motschenbacher & Blatner.” Aroche Decl., Ex. 2.

Even if Plaintiff could establish she subjectively believed

Farleigh Wada represented her, the Court concludes the record

does not include any evidence to support an objectively

reasonable basis for such a belief. The Court notes the

circumstances of this matter are similar to those in Tinn v. EMM

Labs, Inc., 556 F. Supp. 2d 1191, 1192–93 (D. Or. 2008). In Tinn

the court found the plaintiff did not produce evidence sufficient

to satisfy the requirement of an objectively reasonable basis for

his subjective belief that an attorney-client relationship

existed when the plaintiff “produced no written agreement,

correspondence, e-mails, or other similar tangible indicia that

would support a reasonable conclusion that [the lawyer] had

agreed to act as [the plaintiff’s] attorney.” 556 F. Supp. 2d at

1193–94. The Tinn court also pointed out there was not any

evidence that the plaintiff compensated the attorney for any

alleged legal services. Id. at 1194. Although, as the court

acknowledged, payment of fees is not necessary to prove an

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attorney-client relationship, its absence does not weigh in the

putative client’s favor. Id. In Tinn the plaintiff’s only

evidence of the existence of an attorney-client relationship

consisted of declarations by two individuals who claimed to have

heard parts of telephone conversations between the plaintiff and

the lawyer. The attorney, however, submitted a declaration

disputing the plaintiff’s characterization of the relationship,

which, coupled with the lack of objective evidence, led the court

to conclude that the evidence was insufficient to create an

objective basis for the plaintiff’s subjective belief that he

shared an attorney-client relationship. Id. at 1194–95.

On this record the Court concludes Plaintiff was not an

actual client of Farleigh Wada and was, at most, a prospective

client. Thus, Rule of Professional Conduct 1.18 governs the

Court’s analysis.

II. Analysis under Rule 1.18

A. Francisco Aroche was acting as Plaintiff’s agent when

he contacted Farleigh Wada.

As noted, Rule 1.18(a) provides: “A person who

consults with a lawyer about the possibility of forming a

client-lawyer relationship with respect to a matter is a

prospective client.”

Rivermark asserts Plaintiff was not, in fact, a

prospective client of Farleigh Wada because she did not

personally consult with that firm. As noted, Franciso Aroche

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called and consulted with the law firm, he is not a signatory to

the loan, and he is not a party in interest in this matter. 

Plaintiff, in turn, asserts Franciso Aroche called on

her behalf because Plaintiff does not speak English. Plaintiff

notes Oregon law confers protections to persons who are

reasonably necessary to facilitate attorney-client

communications, and, therefore, Franciso Aroche’s communications

with Seitz as Plaintiff’s English-language facilitator should not

bar Plaintiff from being a prospective client. The Court agrees. 

The Court finds Franciso Aroche was acting as

Plaintiff’s agent when he called Farleigh Wada because Plaintiff

was unable to communicate adequately herself. The Court,

therefore, concludes the fact that Franciso Aroche, acting as

Plaintiff’s agent, contacted Farleigh Wada is not sufficient to

bar Plaintiff from being a prospective client under Rule 1.18(a).

B. Farleigh Wada did not receive information that could be

significantly harmful to Plaintiff. 

Rivermark asserts even if Plaintiff could be considered

a prospective client under Rule 1.18(a), Farleigh Wada should not

be disqualified because it did not receive information from

Plaintiff that “could be significantly harmful to [Plaintiff]”

and/or Farleigh Wada

took reasonable measures to avoid exposure to more

disqualifying information than was reasonably

necessary to determine whether to represent the

prospective client; and (i) the disqualified

lawyer [was] timely screened from any

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participation in the matter; and (ii) written

notice [was] promptly given to the prospective

client. 

Rules of Professional Conduct 1.18(c), (d).

Rivermark asserts there is not any evidence that

Francisco Aroche provided confidential information to Seitz or

information that could be harmful to Plaintiff. Seitz testifies

in her Declaration that to the best of her recollection Franciso

Aroche told her “a company attempted to repossess his vehicle 

. . . [and] during the repossession, someone involved allegedly

shoved or punched his wife. . . . [H]e also stated that his

minor daughter saw this event and he was concerned for her

safety.” Franciso Aroche also provided Seitz with the name of

the creditor, at which point Seitz told Franciso Aroche there was

likely a conflict and she could not represent him.

Plaintiff, nevertheless, asserts Franciso Aroche told

Seitz at least two pieces “of confidential information previously

unknown to plaintiff’s counsel: (1) punches may have been thrown

by Rivermark’s agents during the assault and (2) plaintiff’s

child, who witnessed the assault, may have felt endangered during

the encounter.” In her Complaint, however, Plaintiff alleges AAR

representatives assaulted and battered her “by physically pinning

her into her garage door, in front of her young daughter,” and

the information that Franciso Aroche allegedly provided to Seitz

is consistent with that version of the facts. 

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On this record the Court concludes the information that

Franciso Aroche provided to Seitz is not the kind of

disqualifying information to which Rule 1.18 refers. 

C. Farleigh Wada took reasonable measures to avoid

exposure. 

Rivermark asserts even if the information transmitted

to Seitz had been disqualifying information within the meaning of

Rule 1.18(c), Farleigh Wada is still entitled to the exception

provided in Rule 1.18(d). Specifically, Rivermark notes Seitz

took reasonable measures to avoid exposure to more disqualifying

information than was reasonably necessary to determine whether to

represent Plaintiff, made clear to Franciso Aroche that Farleigh

Wada does not generally take cases like the one he described, and

indicated the firm frequently represents creditors. As soon as

Seitz learned the name of the creditor, she ascertained she had a

conflict, told Francisco Aroche that she had a conflict, and

declined representation. 

In addition, Farleigh Wada screened Seitz from this

matter as soon as Plaintiff notified Farleigh Wada that Plaintiff

might qualify as a prospective client under Rule 1.18. According

to Rivermark, the screening was timely under the circumstances

because Francisco Aroche did not provide Seitz with the name of

his wife (Plaintiff), and Farleigh Wada had no way of knowing

there was a potential conflict in representing Rivermark in this

matter until receipt of Plaintiff’s notice. See Vaccine Center,

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LLC v. Glaxosmithkline LLC, No. 2:12-cv- 01849-JCM-NJK, 2013 WL

178176, at *2 (D. Nev. Apr. 25, 2013)(finding timely screening of

disqualified lawyers when the lawyers were promptly screened as

soon as the plaintiff’s notified to the law firm of the possible

violation of Nevada’s parallel Rule 1.18). See also Beckenstein

Enters.-Prestige Park, LLC v. Lichtenstein, No. X06cv030183486S,

2004 WL 1966863, at *6 (Conn. Aug. 11, 2004)(finding screening

was timely when the disqualified attorney was screened “[a]s soon

as he was notified by plaintiffs’ counsel of [the disqualified

attorney’s] discussion with [the plaintiff.]”).

Finally, when Farleigh Wada received Plaintiff’s

February 12, 2015, letter notifying it of a possible conflict,

the law firm investigated and provided written notice to

Plaintiff’s counsel six days later. Courts have found Rule

1.18(d) and other similar state rules of professional conduct

were satisfied when it took counsel much longer to provide such

notice. See, e.g., Vaccine Center, 2013 WL 178176, at *2

(finding the notice was prompt when it was provided roughly ten

days after receipt of notice of the potential conflict);

Beckenstein, 2004 WL 1966863, at *6 (finding the notice was

prompt even when it was provided 30 days after the lawyer was

informed of the possible conflict).

Plaintiff, nevertheless, asserts Farleigh Wada did not

comply with the notice requirements of Rule 1.18(d)(ii) because

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“it did not add plaintiff’s husband to its conflict list after

consulting with him, and it only sent him written notice after

plaintiff asked to confer on the instant motion.” It is not

clear what kind of prejudice Plaintiff is asserting when she

argues Farleigh Wada did not add Franciso Aroche to its conflict

list. In any event, Rule 1.18(d)(ii) requires only that “written

notice is promptly given to the prospective client.” There is

not any conflict-list requirement. In addition, as noted,

Plaintiff rather than Franciso Aroche was the prospective client,

and, therefore, it does not appear Rule 1.18(d)(ii) required

Farleigh Wada to give notice to Franciso Aroche after Farleigh

Wada timely notified Plaintiff as required under Rule

1.18(d)(ii).

On this record the Court concludes Farleigh Wada

complied with the requirements of Rule 1.18(d), and, therefore,

even if Plaintiff was a prospective client, Farleigh Wada is not

disqualified from representing Rivermark in this matter. 

Accordingly, the Court denies Plaintiff’s Motion to

Disqualify.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Motion (#5) 

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to Disqualify the Farleigh Wada Witt Law Firm.

IT IS SO ORDERED.

DATED this 11th day of May, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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