2018 UT App 64

THE UTAH COURT OF APPEALS

CHELSIE GWEN NEWTON, JERRICKO ROBERT NEWTON, RONALD 

PRESTON ISAACSON, AND SUZIE GWEN NEWTON,

Appellants,

v.

STONERIDGE APARTMENTS, CHRIS EDWARD WALL, TARA COHAN 

WALL, WALL BROTHERS REAL ESTATE LIMITED PARTNERSHIP, AND 

WALL BROTHERS INC.,

Appellees.

Opinion

No. 20150957-CA

Filed April 12, 2018

Fourth District Court, Spanish Fork Department

The Honorable M. James Brady

No. 120300155

D. David Lambert, Leslie W. Slaugh, and Andrew B. 

Berry Jr., Attorneys for Appellants

Daniel S. McConkie and Ryan Beckstrom, Attorneys

for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGE GREGORY K. ORME concurred. JUDGE MICHELE M.

CHRISTIANSEN concurred in the result.

MORTENSEN, Judge:

¶1 The district court disqualified a law firm from 

representing the appellants in this case, finding that a substantial 

relationship existed between this and an earlier case. Prior to the 

law firm’s participation and removal in the present case, it

represented, in the earlier case, Tyler Lloyd Peterson—a key 

witness in this case. Because that finding was erroneous, we 
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vacate the district court’s order and remand this case for further 

proceedings.

BACKGROUND

¶2 Peterson was a tenant of Stoneridge Apartments.1 In 

exchange for reduced rent, Peterson performed various 

managerial duties such as collecting rent, handing out furnace 

filters, and cleaning the exterior of the building. In 2011, 

Peterson pled guilty to sexually assaulting2 a member of the

Newton family;3 the Newtons were tenants of Stoneridge at the 

time. In 2012, the Newtons filed the present action against 

Peterson and Stoneridge as a result of the assault, alleging that 

Stoneridge should be held liable for the intentional tortious 

actions of Peterson.

¶3 While originally represented by a different attorney, the 

Newtons eventually retained D. David Lambert (Lambert) of the 

law firm Howard, Lewis & Petersen PC (the Firm), who entered 

his appearance as counsel for the Newtons in September 2014.

Another attorney at the Firm (Attorney) had previously 

represented Peterson in a 2002 custody and support case. 

Roughly two and a half months after Lambert appeared in the 

case, Peterson moved to disqualify Lambert and the Firm due to 

Attorney’s previous representation.

 

1. Stoneridge Apartments is an appellee in this case, as are the 

owners of Stoneridge Apartments and their related business 

entities. We refer to the appellees collectively as Stoneridge.

2. Peterson pled guilty in the resulting criminal case against him.

3. All of the appellants are members of the Newton family. We 

refer to them collectively as the Newtons.
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¶4 Attorney filed a declaration stating that he had not 

received any information about Peterson in the 2002 case that 

could possibly be of use in the instant case. Lambert also filed a 

declaration, stating that he had not received any information 

from Attorney or from any files held by the Firm regarding the 

2002 case that was relevant to the instant case. Both attorneys 

stated that screening measures had been implemented to ensure 

that Lambert would not learn any confidential information 

Attorney might have received. Nevertheless, the district court 

granted Peterson’s motion to disqualify both the Firm and 

Lambert. The district court explained that the Firm had 

“acquired personal, private information regarding [Peterson]

which is protected by Rules 1.6 and 1.9(c) [of the Utah Rules of 

Professional Conduct], [and] which is material to the present 

case.” The court also noted that the Firm “has not demonstrated 

that [Peterson] waived the disqualification of [the Firm] in this 

case.”

¶5 Shortly after the disqualification of the Firm, the Newtons 

stipulated to the dismissal of Peterson from the case with 

prejudice. And four months after his dismissal, the Newtons 

filed a motion “to determine issues regarding disqualification 

now that . . . Peterson has been dismissed with prejudice.”4 They 

argued that Stoneridge had not moved for disqualification and 

lacked standing to do so, and that the disqualification only 

prevented the Firm from representing a party opposed to 

Peterson. Consequently, the Newtons asked the district court to 

partially vacate the order of disqualification.

 

4. The Newtons brought this motion citing only rule 7 of the 

Utah Rules of Civil Procedure. That rule sets forth the general 

process and requirements for making motions. See Utah R. Civ. 

P. 7(b). For ease of reference and for purposes of our analysis, we 

refer to the Newtons’ motion as the Motion to Determine. See 

infra Part III.
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¶6 The district court declined to vacate its previous order. It 

noted that the advisory ethics opinion on which the Newtons 

had relied concluded “that the cross-examination of a former 

client by an attorney does not create a per se disqualifying 

conflict of interest, but advises that the evaluation of the conflict 

must go further to include the specific facts and circumstances of 

the case.” The district court then explained that the order of 

disqualification had not been “conditional, provisional, or 

limited to whether or not . . . Peterson is a party in the present 

action . . . [the interests of the Newtons] are adverse to . . .

Peterson’s interests even though he is not a party in the present 

case.”

¶7 The Newtons timely requested leave to take an 

interlocutory appeal from the district court’s decision not to 

vacate its order of disqualification. We granted the request.

ISSUES AND STANDARD OF REVIEW

¶8 The Newtons first contend that Stoneridge had no 

standing to bring a motion to disqualify Lambert or the Firm.

The Newtons next contend that the district court erred in 

determining that the 2002 custody and support case was 

substantially related to the instant case. The Newtons also 

contend that the district court failed to properly reconsider its 

determination that disqualification was required after Peterson 

was dismissed from the case. Finally, the Newtons contend that 

the district court abused its discretion by failing to “weigh the 

beneficial and harmful effects of disqualification.” “The proper 

standard of review for decisions relating to disqualification is 

abuse of discretion. However, to the extent [an appellate court] 

has a special interest in administering the law governing 

attorney ethical rules, a trial court’s discretion is limited.” Snow, 

Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 P.3d 

1058 (cleaned up).
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ANALYSIS

¶9 We disagree with the Newtons that traditional standing 

requirements demand reversal of the district court’s order. But 

we agree that the district court improperly applied our 

disqualification rules to the case at hand.

I. Standing

¶10 The Newtons first contend that the district court abused 

its discretion by “disqualifying [the Newtons’] counsel for the 

benefit of a party that had never moved for disqualification and 

which had never been a prior client of the firm.” They argue that 

Stoneridge did not have standing to file such a motion, pursuant 

to Rule 1.9 of the Utah Rules of Professional Conduct, which 

provides that a duty to a former client is owed when there is an 

attorney-client relationship upon which the prior representation 

was based. Here, the Newtons allege that Stoneridge lacked 

standing because the only attorney-client relationship that was 

formed between Lambert or the Firm was with Peterson—not 

Stoneridge.

¶11 In typical motion practice, a party can only oppose a

motion if that party has a dog in the fight. See e.g., Packer v. 

National Service Indus., Inc., 909 P.2d 1277, 1278 (Utah Ct. App. 

1996) (determining that a codefendant in a multiparty litigation 

could not oppose a summary judgment motion between other 

parties where no cross-claim had been brought). This principle 

does not pertain to issues of disqualification because such 

determinations do not flow from the pleadings or the parties but 

instead find their genesis in the inherent power of the court to 

regulate the practice of law. See Featherstone v. Schaerrer, 2001 UT 

86, ¶ 17, 34 P.3d 194 (stating that the trial court’s decision to 

employ its inherent power to control the conduct of attorneys 

“operates independently of how the court learns of a potential 

ethical or other violation”). But rule 1.9 simply states that a 
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lawyer shall not represent certain clients or do certain things in 

specified circumstances. See Utah R. Prof’l Conduct 1.9.

¶12 There is no indication in the language of rule 1.9 that 

standing is required to file a motion to disqualify; even though 

the rule 1.9 issues were brought to the district court’s attention 

by motion, the district court took on the task of enforcement 

itself, which is proper. Trial courts wield the power to correct 

violations on their own initiative or in response to a motion from 

a party. See Featherstone, 2001 UT 86, ¶ 17, 34 P.3d 194. Because 

the issue presented is one of potential disqualification, we agree 

that Stoneridge could properly assist the trial court in employing 

its inherent power regardless of whether Stoneridge’s interests 

were implicated.

II. Disqualification

¶13 While we disagree with the Newtons’ contentions 

regarding Stoneridge’s lack of standing, we agree that the 

district court erred in ultimately concluding that the Firm should 

be disqualified. To begin, we clarify that the district court made 

its order under subsection (b) of rule 1.9 of the Utah Rules of 

Professional Conduct, which discusses duties to former clients. 

Then, reaching the merits of the Newtons’ challenges, we 

conclude that the district court abused its discretion by 

erroneously finding that a substantial relationship existed 

between this and the earlier case. That revelation requires

reversal of the district court’s order.

A. The District Court’s Order Applying Rule 1.9

¶14 We begin by discussing the district court’s framework for 

our analysis. In its brief, Stoneridge repeatedly refers to 

subsections (a) and (c) of rule 1.9 to argue that the district court’s 

disqualification order should stand. Of particular note is 

Stoneridge’s conclusion that despite Peterson’s dismissal from 

the case, under subsection (c), “Lambert is still forbidden from 
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us[ing] information relating to the representation [of Peterson] to 

the disadvantage of [Peterson], or, more broadly, from even 

representing a client—such as [the Newtons]—whose interests 

are materially adverse to his former client’s interests.” (Quoting 

Utah R. Prof’l Conduct 1.9(c)(1).) But the district court actually 

disqualified the Firm and Lambert under subsection (b).

¶15 Subsection (b) of rule 1.9 mandates:

(b) A lawyer shall not knowingly represent a 

person in the same or a substantially related matter 

in which a firm with which the lawyer formerly 

was associated had previously represented a client

(b)(1) whose interests are materially adverse to 

that person; and

(b)(2) about whom the lawyer had acquired 

information protected by Rules 1.6 and 1.9(c) that 

is material to the matter; unless the former client 

gives informed consent, confirmed in writing.

Utah R. Prof’l Conduct 1.9(b). The district court ordered the 

disqualification of the Firm for four reasons, which track the 

language of subsection (b) almost exactly:

1. A member of [the Firm] has formerly 

represented [Peterson] in a substantially related 

matter.

2. The interests of [the Firm’s] current client 

are materially adverse to the interests of [Peterson].

3. [The Firm] acquired personal, private 

information regarding [Peterson] which is 

protected by Rules 1.6 and 1.9(c), an[d] which is 

material to the present case.
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4. [The Firm] has not demonstrated that 

[Peterson] waived the disqualification of [the Firm]

in this case.

¶16 Subsection (b)’s mere reference to subsection (c) cannot 

convert the district court’s disqualification under subsection (b) 

to a disqualification under subsection (c). Thus, we are tasked 

with determining whether the district court properly ordered 

disqualification under subsection (b). It did not.

B. The District Court’s Substantial-Relationship Finding

¶17 In its order, the district court determined that the Firm

had “formerly represented [Peterson] in a substantially related 

matter.” This determination is a factual finding.5 See Roderick v. 

Ricks, 2002 UT 84, ¶¶ 52–55, 54 P.3d 1119 (upholding the district 

court’s findings that the earlier instances of an attorney’s 

representation were “not substantially factually related to the 

matter involving” the present case on appeal). We typically 

expect challenges to factual findings to include marshaling of the 

evidence supporting the findings, though this is no longer a 

“hard-and-fast” requirement. See State v. Nielsen, 2014 UT 10, 

¶¶ 40–41, 326 P.3d 645. But even when marshaling was a 

 

5. The Newtons seem to believe—and Stoneridge does not take 

issue with the belief—that the determination of substantial 

relationship is a conclusion of law that should be reviewed for 

an abuse of discretion. However, in Roderick v. Ricks, 2002 UT 84, 

54 P.3d 1119, the Utah Supreme Court, in deciding a challenge to 

a rule 1.9(a) disqualification, referred to a substantialrelationship determination as a “factual finding,” which it 

reviewed for clear error. See id. ¶¶ 53, 55. We therefore read the 

Newtons’ challenge on this point as a challenge to the district 

court’s factual findings, the merits of which are reviewed for 

clear error.
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requirement for a successful challenge to a finding of fact, there 

was an understood exception: “If there simply is no supportive 

evidence, counsel need only say so and the challenge will be 

well-taken—counsel is not expected to marshal the nonexistent.” 

Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733.

¶18 This is essentially what we have in this case. In 

challenging the district court’s substantial-relationship finding, 

the Newtons assert, “There is no factual overlap between the 

custody case and the current tort case.” And given the district 

court’s failure to provide any support for its finding, the 

Newtons’ challenge is well taken for two reasons. See Woodward 

v. Fazzio, 823 P.2d 474, 477 (Utah Ct. App. 1991) (explaining that 

a “marshaling effort was largely ineffectual by reason of the 

conclusory nature of the trial court’s findings of fact”); id. at 478 

(concluding that affirmance was “impossible” in large part 

because the trial court’s findings provided “an inadequate 

account of the actual facts supporting the court’s ultimate 

decision”; most of the findings were “conclusory, and reflect an 

intention to merge the trial court’s ultimate factual 

determinations with the requirements of the [relevant legal 

test]”).

¶19 First, the district court provided no explanation for its 

ultimate finding that the two matters are substantially related. It 

merely stated the conclusory fact that they are. But a review of 

the record before us—which was also before the district court—

shows that there is insufficient evidentiary support for a finding 

of substantial relationship. The record provides little information 

regarding any possible factual link between the two cases. 

Instead, the district court seems to have rested its finding on the 

sole fact that Peterson was involved in both the prior and the 

current case. But the mere existence of a common party or player 

is not enough for disqualification under rule 1.9 of the Utah 

Rules of Professional Conduct; if it were, the rule would be 

much shorter and would make no mention of substantially 
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related matters, materially adverse interests, or acquisition of 

protected information.

¶20 Here, we know only that in 2002, the Firm represented 

Peterson in a domestic matter. The case involved custody and 

support issues, and the matter was resolved by agreement of the 

parties in May of that year. The present case, for which the Firm 

entered an appearance in 2014, rests on allegations that Peterson 

committed a sexual assault in August 2011, more than nine years 

after the domestic matter concluded, against a victim wholly 

unrelated to the prior matter. As our supreme court concluded 

in Cheves v. Williams, 1999 UT 86, 993 P.2d 191, such “general 

statements concerning the prior representation [are] insufficient 

to support [an attorney’s] disqualification.”6 Id. ¶ 60. We see 

nothing more than general statements in the record. Therefore,

the district court’s finding of a substantial relationship, along 

with its disqualification of the Firm—without more—is 

unsupported.

¶21 Second, given the facts available in the record, there 

appears to be no factual nexus—much less a substantial one—

between the Newtons’ claims and the earlier representation. See

Houghton v. Department of Health, 962 P.2d 58, 62–63 (Utah 1998),

overruled on other grounds by Arkansas Dep’t of Health & Human 

Services v. Ahlborn, 547 U.S. 268 (2006).7

 

6. Further, our supreme court has also recognized that the 

misuse of “disqualification motions based on very slight 

appearances of impropriety” for “tactical advantage in 

litigation” will not be tolerated. Margulies ex rel. Margulies v. 

Upchurch, 696 P.2d 1195, 1204 (Utah 1985).

7. Houghton interpreted an earlier version of rule 1.9. See 

Houghton v. Department of Health, 962 P.2d 58, 61 (Utah 1998),

overruled on other grounds by Arkansas Dep’t of Health & Human 

(continued...)
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¶22 In Houghton, our supreme court explained:

In construing Utah’s Rule 1.9(a),8 the federal courts 

and the Utah Court of Appeals have referred to the 

 

(...continued)

Services v. Ahlborn, 547 U.S. 268 (2006). That version of the rule—

interpreted not only by Houghton but also at issue in much of our 

other rule 1.9 jurisprudence—disqualified attorneys when 

matters were “substantially factually related.” See Utah R. Prof’l 

Conduct 1.9(a) (2005). In 2005, the Supreme Court amended rule 

1.9 and removed the word “factually.” Compare id. (Supp. 2005),

with id. R. 1.9(b) (2017). Since that time, neither this court nor our 

supreme court has had occasion to consider in any detail what 

effect the amendment should have on our analysis. However, we 

believe the amendment makes little difference here. Comment 2 

to the current rule explains, “The scope of a ‘matter’ for purposes 

of this Rule depends on the facts of a particular situation or 

transaction.” Id. R. 1.9 cmt. 2 (2017) (emphasis added). Likewise, 

comment 3 addresses when matters are substantially related and 

suggests, in part, that “knowledge of specific facts gained in a 

prior representation that are relevant to the matter in question” 

likely precludes subsequent representation. Id. R. 1.9 cmt. 3 

(emphasis added). Furthermore, federal cases interpreting the 

current version of our rule have continued to “evaluate 

‘substantiality by focusing on the factual nexus between the prior 

and current representation rather than a narrower identity of 

legal issues.’” Becker v. Ute Indian Tribe of the Uintah & Ouray 

Reservation, No. 2:13-CV-00123, 2013 WL 4046315, at *2 (D. Utah 

Aug. 7, 2013) (emphasis added) (quoting SLC Ltd. V v. Bradford 

Group West, Inc., 999 F.2d 464, 467 (10th Cir. 1993)). Thus, we rely 

on Houghton in conducting the present inquiry.

8. Houghton references subsections (a) and (b) of the earlier 

version of rule 1.9. See 962 P.2d at 61. In that earlier version, 

(continued...)
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necessity for a distinct, factual link between the 

former and present representations. In SLC Ltd. V

v. Bradford Group West, Inc., 999 F.2d 464, 467 (10th 

Cir. 1993), the United States Court of Appeals for 

the Tenth Circuit stated that Utah’s requirement 

“focus[es] on the factual nexus between the prior 

and current representations rather than a narrower 

identity of legal issues.”

Houghton, 962 P.2d at 62. The court went on to explain that in the 

case before it, there was “no common factual nexus.” Id.

(emphasis omitted).

¶23 Like the court in Houghton, we conclude that “[t]he 

adjudication of” the claims against Stoneridge “[do] not involve 

any factual information arising out of [the Firm’s] prior 

representation[].” See id. “Because the particular facts involved in 

the prior representation[] are not in issue here nor are they in 

any way even relevant in the present lawsuit,” there is no 

support for a finding that the two cases are substantially related. 

See id. at 62–63; see also Joint Sugar House, LLC v. I4 Solutions, No. 

2:16-cv-00151, 2016 WL 2344220, at *3 (D. Utah May 3, 2016) 

(finding no substantial relationship between a prior 

representation in which attorneys helped draft portions of a 

 

(...continued)

subsection (b) mandated that attorneys not “[u]se information 

relating to the representation to the disadvantage of the former 

client except . . . when the information has become generally 

known.” See id. (quoting Utah R. Prof’l Conduct 1.9(a) (1998)). 

Thus, what was once subsection (b) matches the current 

language of subsection (c)(1). See Utah R. Prof’l Conduct 1.9(c)(1) 

(2017). And what is now subsection (b) was included in what the 

Houghton court cites as subsection (a). Compare id. R. 1.9(a) (1998),

with id. R. 1.9(b) (2017).
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contract and a subsequent representation where that same 

contract was at issue but the claims asserted dealt with copyright 

infringement, not breach of the contract).

¶24 In other words, we agree with the Newtons that “even if 

it were assumed that in the 2002 custody case [the Firm] had to 

deal with . . . Peterson’s character, misconduct, abusive behavior, 

or criminal history,” there is no distinct factual link between that 

representation and the present case, which turns on what 

Stoneridge knew or should have known when it entrusted 

Peterson with access to the Newtons’ apartment. “Although 

there may be some factual overlap between the prior and current 

representation, it is not the type of overlap that can be regarded 

as changing sides in the matter or as creating a risk that 

confidential factual information would materially advance any 

party’s position in this current litigation.” See Ironshore Specialty 

Ins. v. Callister Nebeker & McCullough, No. 2:15-cv-677-RJS-BCW, 

2016 WL 2858800, at *2 (D. Utah May 16, 2016). Ultimately, this 

case is not about Peterson’s domestic past; it is about his criminal 

behavior a decade later. We therefore conclude that the district 

court clearly erred when it found the two matters were 

substantially related.9

III. Motion to Determine

¶25 We also conclude that the district court erred when it 

refused to alter its ruling—which rested on the existence of an 

attorney-client relationship—after the client was removed from 

the picture. It declined to amend that ruling because “[n]othing 

in the court’s order of disqualification indicated it was 

 

9. We are not blind to the fact that information Peterson may 

have provided Attorney might still be off limits at trial under 

rule 1.9(c), but that was not the basis for the district court’s 

ruling.
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conditional, provisional, or limited to whether or not . . . 

Peterson is a party in the present action.” We acknowledge that

the original disqualification order contained no such condition, 

provision, or limitation; however, when exercising its discretion 

in deciding the motion, the district court could not rely upon a 

faulty legal premise. Kilpatrick v. Bullough Abatement, Inc., 2008 

UT 82, ¶ 23, 199 P.3d 957 (stating that an abuse of discretion may 

be demonstrated by showing a district court relied on an 

erroneous conclusion). And in this case, it was erroneous to 

conclude that the absence of Peterson as a party was immaterial.

Peterson’s party or non-party status is critical to a proper 

application of rule 1.9(b).

¶26 Again, rule 1.9(b) requires disqualification only if 

Peterson’s interests are “materially adverse to” the Newtons’ 

interests. See Utah R. Prof’l Conduct 1.9(b)(1). Part of the 

Newtons’ appeal rests on the following assertion: “If, as the trial 

court has ruled, there were grounds to disqualify [Lambert]

when [Peterson] was a party to this case, those grounds no 

longer applied to disqualify [Lambert] once [Peterson] was no 

longer a party and had been dismissed with prejudice.” We

agree.

¶27 Subsection (b)(1) speaks in the present tense, considering 

whether a former client’s “interests are materially adverse to” a 

current client’s interests. See id. (emphasis added). One’s

interests as a defendant in a lawsuit are necessarily different 

from one’s interests as only a witness in that same suit, meaning 

Peterson’s interests changed when his status changed from 

defendant to witness. Once that change of interests occurred, it 

was incumbent upon the district court to re-evaluate whether 

Peterson’s interests were still materially adverse to the 

Newtons’. The court’s conclusory assertion, in denying the 

Motion to Determine, that “[i]nterests of the Newtons are 

adverse to [Peterson’s] interests even though he is not a party in 

the present case,” is inadequate. It fails to account for the 
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changed status of Peterson from a party to a non-party and 

instead rests on its earlier finding of materially adverse interests. 

Continued reliance on its earlier order, even when the 

circumstances supporting that order had changed, constitutes an 

abuse of discretion. We thus reverse the district court’s refusal to 

alter its order disqualifying the Firm.10

CONCLUSION

¶28 The district court clearly erred in finding that there was a 

substantial relationship between the present case and Peterson’s 

2002 case and, thus, in disqualifying the Firm based on that 

erroneous finding. Furthermore, it abused its discretion by

relying on an erroneous legal premise in declining to alter or 

vacate the disqualification order. We therefore reverse and 

remand this case to the district court.

 

10. In light of our resolution of this issue, there is no need to 

address the district court’s failure to weigh the effects of 

disqualification. Because the Firm should not have been 

disqualified, there is nothing to weigh.