Collins v. Nova Association Management Partners LLC

THE HONORABLE JOHN C. COUGHENOUR [6] UNITED STATES DISTRICT COURT [7] WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 JOHN COLLINS, CASE NO. C20-1206-JCC [10] Plaintiff, ORDER 11 v. 12 NOVA ASSOCIATION MANAGEMENT PARTNERS LLC, et al., [13] Defendants. [15] This matter comes before the Court on Plaintiff’s motion to disqualify defense counsel [16] (Dkt. No. 20). Having thoroughly considered the parties’ briefing and the relevant record, the [17] Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained [18] herein. [19] I. BACKGROUND [20] For the past several years, Defendants Nova Association Management Partners LLC and [21] Villa Marina Association of Apartment Owners have been involved in debt collection litigation [22] against Plaintiff John Collins in King County Superior Court to collect assessment payments [23] relating to his condominium. (See generally Dkt. No. 11.) The legal dispute began in 2016 when [24] Villa Marina filed a lawsuit against Plaintiff to collect past due assessments. (Id. at 6.) Plaintiff [25] ultimately paid the amount requested by Villa Marina and the lawsuit was resolved through a [26] 1 Stipulation & Order for Dismissal in March 2017. (Id.) 2 On December 6, 2019, Defendants commenced another collection action against Plaintiff. 3 (Id.) On December 26, 2019, Plaintiff met with David von Beck, a partner at the law firm Levy, 4 von Beck, Comstock, P.S., to determine whether to hire Mr. von Beck to represent Plaintiff in 5 the lawsuit. (Dkt. No. 27 at 3.) Following the meeting, Mr. von Beck sent Plaintiff a retainer 6 agreement, which he did not sign. (Id. at 2.) Instead, a different lawyer from another firm 7 appeared on Plaintiff’s behalf in April 2020. (Dkt. No. 29-5.) On May 14, 2020, Plaintiff called 8 Katie Comstock, another partner at Levy, von Beck, Comstock, P.S., and once again expressed 9 interest in hiring the firm to represent him in the collection dispute. (Dkt. No. 28 at 1–2.) 10 Plaintiff and Ms. Comstock did not communicate further after that call and Plaintiff did not 11 retain Ms. Comstock. (Id. at 3.) In August 2020, King County Superior Court entered judgment 12 and a decree of foreclosure against Plaintiff. (Dkt. No. 15 at 4.) 13 On August 10, 2020, Plaintiff filed the instant complaint alleging that Defendants 14 violated the federal Fair Debt Collection Practices Act and the Washington Consumer Protection 15 Act. (See generally Dkt. No. 11.) Seth Chastain, a partner at Levy, von Beck, Comstock, P.S., 16 appeared on behalf of the Defendants in September 2020. (Dkt. No. 13.) In October, Defendants 17 moved to dismiss the complaint for failure to state a claim. (Dkt. No. 17.) In response, Plaintiff 18 moved to disqualify defense counsel because he alleges his discussions with Ms. Comstock and 19 Mr. von Beck created a conflict of interest. (Dkt. No. 20 at 3–4.) 20 II. DISCUSSION 21 When considering a motion to disqualify, the Court retains responsibility for controlling 22 the conduct of lawyers practicing before it. Trone v. Smith, 612 F.2d 994 , 999 (9th Cir. 1980). In 23 deciding whether to disqualify counsel, the Court looks to the local rules regulating the conduct 24 of the members of its bar. Avocent Redmond Corp. v. Rose Elecs., 491 F. Supp. 2d 1000 , 1003 25 (W.D. Wash. 2007). Attorneys practicing in the Western District of Washington must abide by 26 the Rules of Professional Conduct as promulgated and interpreted by the Washington Supreme 1 Court (“RPCs”). See W.D. Wash. Local Civ. R. 83.3(a)(2). The Court notes that “disqualification 2 is a drastic measure and that it must consider the danger of a motion to disqualify opposing 3 counsel as a litigation tactic.” FMC Techs., Inc. v. Edwards, 420 F. Supp. 2d 1153, 1157 (W.D. 4 Wash. 2006 ). 5 Plaintiff argues that Levy, von Beck, Comstock should be disqualified for two reasons. 6 First, Plaintiff argues that he is a client of the firm because he consulted with Mr. von Beck and 7 Ms. Comstock. (Dkt. No. 20 at 4.) Accordingly, he argues that defense counsel should be 8 disqualified because those attorneys have a concurrent conflict of interest that is imputed to the 9 entire firm. (Id. at 3.) Next, Plaintiff argues that even if he is not a client, he is a prospective 10 client and the Court should disqualify defense counsel because he disclosed information that may 11 be significantly harmful to him in this litigation. (Id. at 5.) 12 A. Attorney-Client Relationship 13 The existence of an attorney-client relationship “turns largely on the client’s subjective 14 belief that it exists.” In re Disciplinary Proceeding Against McGothlen, 663 P.2d 1330 , 1134 15 (Wash. 1983). However, the client’s belief must be “reasonably formed based on the attending 16 circumstances, including the attorney’s words or actions” State v. Hansen, 862 P.2d 117 , 121 17 (Wash. 1993) (quoting Bohn v. Cody, 832 P.2d 71 (Wash. 1992)). The relationship can be 18 implied by the parties’ conduct and need not be consummated by the payment of fees or 19 formalized in a written contract. McGothlen, 663 P.2d at 1334 . The party claiming the privilege 20 of the attorney-client relationship bears the burden of proving its existence. Dietz v. Doe, 935 21 P.2d 611 , 615 (Wash. 1997). 22 As an initial matter, the Court is skeptical that Plaintiff subjectively believed that he 23 formed an attorney-client relationship with Levy, von Beck, Comstock as a result of the 24 December 26, 2019 meeting with Mr. von Beck. First, three months later, Plaintiff hired a 25 different attorney from a separate law firm to appear for him in the state court litigation. (Dkt. 26 No. 29-5.) If Plaintiff believed Mr. von Beck was already representing him, he would have had 1 no need to hire another law firm. Next, Plaintiff contacted Ms. Comstock about possible 2 representation in May 2020. Once again, if he believed that he had already hired the firm, he 3 would have had no need to ask about possible representation. It is also hard to believe that 4 Plaintiff subjectively believed that he was a client of the firm after his meeting with Ms. 5 Comstock when a different attorney appeared on his behalf in the state court litigation only ten 6 days later. (Dkt. No. 29-6.) Furthermore, Plaintiff never contacted Ms. Comstock after the 7 meeting, which would be odd if he believed he was a client of the firm. (Dkt. No. 28 at 3.) 8 Finally, when it came time to file the instant federal lawsuit, Plaintiff did not contact Levy, von 9 Beck, Comstock and instead turned to another set of lawyers to draft the complaint and file the 10 suit. (Dkt No. 1-1.) But, even assuming Plaintiff subjectively believed that Levy, von beck, 11 Comstock were his lawyers, such a belief was unreasonable. 12 Plaintiff argues that his belief that he was a client of defense counsel’s law firm was 13 reasonable because he had two separate meetings with different lawyers, Mr. von Beck sent him 14 a retainer agreement to confirm their verbal discussion, and the attorneys shared their opinions 15 about the lawsuit. (Dkt. No. 31 at 3–4.) However, based on all the circumstances, Plaintiff’s 16 belief that he was a client was not reasonable. 17 First, an attorney-client relationship is not formed just because an attorney discusses the 18 relevant subject matter with an individual. Bohn, 832 P.2d at 75 . In fact, it is often necessary for 19 an attorney to understand the legal dispute to determine whether they would like to represent the 20 individual. See Wash. RPC 1.18 cmt. 3. 21 Second, after his meeting with Mr. von Beck, Plaintiff was left to decide whether to 22 retain the firm by signing the retainer agreement and decided not to. It is settled that the “parties 23 do not create an attorney-client relationship when, during the initial interview, the purported 24 client reserves the right to make a decision as to whether to retain a lawyer.” Eakin Enters. Inc. v. 25 Stratton Ballew, 2020 WL 1649806 , slip op. at 16 (Wash. Ct. App. 2020). 26 Third, Ms. Comstock and Mr. von Beck provided clear disclaimers during their meetings 1 with Plaintiff, stating that the firm could not represent him unless he executed a representation 2 agreement and paid a retainer fee. (Dkt. No. 26 at 8–9.) When an attorney makes clear 3 disclaimers regarding representation and does not act inconsistently with those disclaimers, such 4 disclaimers can establish that a person’s subjective belief is unreasonable. See Bohn, 832 P.2d at 5 75. Mr. von Beck and Ms. Comstock acted consistently with the disclaimers here when they did 6 not contact Plaintiff after he did not sign and return the agreement and did not perform any legal 7 work for him or appear on his behalf in the litigation. (Dkt. Nos. 27 at 3; 28 at 3.) 8 Accordingly, the Court FINDS that Plaintiff is not a client of defense counsel. 9 B. Significantly Harmful Information 10 Plaintiff argues that he is a prospective client because he consulted with defense 11 counsel’s law firm to seek representation in the state court action against him. (Dkt. No. 20 at 4.) 12 He claims he divulged information during his consultations with defense counsel’s law firm that 13 is “significantly harmful” to his interests in this lawsuit. Specifically, Plaintiff claims he 14 disclosed (1) information about his finances and property that he believed would support 15 potential defenses against the collection actions; (2) that he believed Defendants were 16 manipulating his account; and (3) that he was interested in countersuing Defendants based on 17 their collection practices. (Dkt. Nos. 21 at 2; 31 at 5.) Accordingly, he argues that RPC 1.18 18 requires the Court to disqualify Levy, von beck, Comstock. 19 Under Rule 1.18(a), any “person who consults with a lawyer about the possibility of 20 forming a client-lawyer relationship with respect to a matter is a prospective client.” A lawyer 21 cannot “represent a client with interests materially adverse to those of a prospective client in the 22 same or substantially the same matter if the lawyer received information from the prospective 23 client that could be significantly harmful to that person in the matter.” RPC 1.18(c). For the 24 purposes of Rule 1.18, “significantly harmful” means more than de minimis harm. RPC 1.18 25 cmt. 12. To establish that defense counsel should be disqualified, Plaintiff must explain what 26 information he disclosed, why it was not already public or known to Defendants, and why it 1 would be significantly harmful to Plaintiff. Goldmanis v. Insinger, 2014 WL 3739430 , slip op. at 2 5 (W.D. Wash. 2014). 3 The Court agrees that Plaintiff is a prospective client under RPC 1.18 because he met with 4 Levy, von Beck, Comstock about the state court proceeding against him. However, Plaintiff’s 5 argument that RPC 1.18(c) prohibits defense counsel from representing Defendants is not 6 persuasive. Even if the Court were to assume the veracity of Plaintiff’s allegations, they nowhere 7 describe the specific information that he allegedly disclosed to Ms. Comstock or Mr. von Beck 8 that could be “significantly harmful” to Plaintiff. 9 First, Plaintiff claims that he “revealed personal and financial information about himself,” 10 which could be significantly harmful to him in the current litigation. (Dkt. No. 20 at 2, 5.) 11 However, Plaintiff does not provide enough detail for the Court to determine what that 12 information is or whether it is “significantly harmful” to Plaintiff. For instance, Plaintiff does not 13 explain what facts about his property or finances he disclosed, whether the facts were already 14 readily available to Defendants, or how these facts would be harmful to him. Moreover, Ms. 15 Comstock’s notes do not indicate that Plaintiff disclosed any information that was not already in 16 the public record. (Dkt. No. 28 at 2.) Accordingly, the Court rejects Plaintiff’s argument that the 17 information he allegedly provided about his finances or property was significantly harmful. 18 Next, Plaintiff alleges that he disclosed “significantly harmful” information when he told 19 defense counsel that he believed Defendants were manipulating his account. (Dkt. No. 20 at 2.) 20 However, information that is already known by Defendants or is readily available to them cannot 21 be significantly harmful. Goldmanis, 2014 WL 3739430 , slip op. at 4; cf. WSBA Advisory 22 Opinion 2080 (“[T]he Model Rules do not prohibit the use to the disadvantage of the would-be 23 client of information relating to the representation once the information becomes generally 24 known.”) (quoting ABA Comm. on Ethics & Pro. Resp., Formal Op. 90-358 (1990)). Plaintiff 25 made this argument in his state court filings in April 2020 and June 2020, months before defense 26 counsel appeared on behalf of Defendants. See Defendant’s Opposition to Plaintiff’s Motion for 1 Summary Judgment at 2, Villa Marina Ass’n v. Collins, Case No. 19-2-32346-9 SEA (Wash. 2 Super. Ct. 2020) (Dkt. No. 19) (alleging Defendants received checks from Plaintiff, declined to 3 cash them, and then assessed late fees against him); Defendant’s Opposition to Plaintiff’s Second 4 Motion for Summary Judgment at 8, Villa Marina Ass’n v. Collins, Case No. 19-2-32346-9 SEA 5 (Wash. Super. Ct. 2020) (Dkt. No. 57) (stating that Defendants were engaging in “unfair and 6 deceptive” conduct by “posting payments months after that payment has been received for 7 purposes of collecting greater interest and late fees”).1 Plaintiff has not shown that his belief that 8 Defendants manipulated his account was not already public or known to Defendants. 9 Accordingly, Plaintiff has failed to show that the information is “significantly harmful.” 10 Finally, Plaintiff argues that he told defense counsel that he intended to file a 11 counterclaim against the Defendants, which is “significantly harmful” information. (Dkt. No. 20 12 at 2.) However, Plaintiff’s intent to assert a counterclaim could not be significantly harmful in 13 this case because Plaintiff had already filed this lawsuit when defense counsel began 14 representing the Defendants. 15 In sum, Plaintiff does not describe the facts he allegedly disclosed to defense counsel in 16 sufficient detail for the Court to conclude that the disclosure was “significantly harmful.” 17 Moreover, the only information that Plaintiff identifies with any degree of specificity was 18 discussed in earlier publicly filed court documents, meaning it could not be significantly harmful 19 if shared with defense counsel. Accordingly, the Court does not need to determine whether 20 defense counsel’s screening procedures were accurate. 21 III. CONCLUSION 22 For the foregoing reasons, Plaintiff’s motion to disqualify defense counsel (Dkt. No. 20) 23 is DENIED. [24] 1 Defendants purported to put these documents in the record but did not include them in their 25 filings with this Court. Even so, the Court may take judicial notice of “matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); see also Fed. R. Evid. 201(c)(1) [26] (authorizing the Court to “take judicial notice on its own”). 1 DATED this 28th day of May 2021. A [4] John C. Coughenour 5 UNITED STATES DISTRICT JUDGE