Nustar Farms, LLC v. Robert Zylstra and Marcia Zylstra

IN THE SUPREME COURT OF IOWA
No. 14–1860
Filed May 13, 2016
NUSTAR FARMS, LLC,
Appellee,
vs.
ROBERT ZYLSTRA and MARCIA ZYLSTRA,
Appellants.
Appeal from the Iowa District Court for Osceola County, Don E.
Courtney, Judge.
Former clients of an attorney moved to disqualify him as counsel in
an action against them. The district court denied the motion for
disqualification. DISTRICT COURT JUDGMENT REVERSED AND
CASE REMANDED.
Matthew G. Sease of Kemp & Sease, Des Moines, Randall G. Sease
of Sease Law Firm, Hartley, and John L. Sandy of Sandy Law Firm, Spirit
Lake, for appellants.
Larry A. Stoller of Stoller Law Office, Spirit Lake, for appellee.
Shaun Thompson, Forest City, for amicus curiae Wooge Pumping
LC.
2
ZAGER, Justice.
In this interlocutory appeal, we are asked to decide whether an
attorney should be disqualified from representing one party in a lawsuit,
either because his representation of the two parties was concurrent or
because he had previously represented the opposing party in a similar
matter. The district court concluded that the attorney need not be
disqualified. For the reasons stated below, we conclude that the district
court did not abuse its discretion in concluding that the prior attorney–
client relationship failed the “substantial relationship” test. However, we
conclude that the attorney did have a concurrent conflict of interest.
Therefore, we find the district court abused its discretion in not
disqualifying the attorney.
I. Background Facts and Proceedings.
Attorney Larry Stoller began representing Robert and Marcia
Zylstra in 2002. 1 Stoller represented them in a number of legal matters
between 2002 and 2014, including financial issues, business
acquisitions, and real estate transactions. 2 Although the Zylstras were
represented by Stoller on a number of occasions, they also used the
services of other attorneys throughout this time period. At issue for the
purposes of this case are a meeting in January 2007 and a small claims
case ending in 2014.
1During the hearing in the district court, Robert testified that Stoller began
representing him as early as 1999. Stoller provided files indicating that his
representation began in 2002. When questioned, Robert testified he had no reason to
dispute this start date.
2In his affidavit to the district court, Robert alleged that Stoller represented him
when he sold a dairy farm to NuStar Farms, LLC. Stoller introduced evidence that it
was Sibley Dairy, LLP, rather than Robert who sold its assets to NuStar. The
documents of the sale also reflect that Sibley Dairy was represented by Daniel DeKoster
and NuStar was represented by Christopher Sackett. The district court found Robert’s
allegation not credible.
3
On January 24, 2007, Robert met with Stoller to discuss estate
planning and manure easement agreements. At the time of the meeting,
the Zylstras were shareholders in Sibley Dairy, LLP. During this
meeting, Robert showed Stoller a multipage document containing
multiple manure easement agreements that the Zylstras intended to
enter into with NuStar Farms, LLC (NuStar). The parties disagree as to
the extent of Stoller’s involvement during this meeting regarding the
manure easement agreements. Stoller asserts that he only briefly
glanced at the easement agreements and then advised Robert that he
should seek the advice of another attorney. Although Stoller
acknowledges he made notations on the first page of the document, he
argues that the notations do not indicate he read the entirety of the
multipage manure easement agreements. Robert asserts that he asked
Stoller to review the manure easement agreements and provide advice.
Robert further alleges that Stoller examined the agreements during the
meeting and advised him to go ahead and complete and sign them.
The record reflects that Stoller made notations on the documents.
However, Stoller claims the notations were made at Robert’s request to
help Robert remember what to discuss with one of the attorneys that
Stoller suggested Robert contact. Both parties agree that Stoller
suggested Robert find an attorney with more experience in the area of
manure easements. Stoller sent a follow-up email to Robert with two
attorney references who he thought could assist the Zylstras with the
easements. The email also confirmed that Robert asked Stoller to look at
the easements and that Stoller “briefly looked at them.” Further, Stoller
wrote, “The changes you were talking about should be run by [the other
attorney] and I suggest that if approved they be included in the
easements. I would also think that some permit would be necessary.”
4
The record also reflects that during this conference they discussed estate
planning matters. This is confirmed in the follow-up email and Stoller’s
office notes of the conference. Stoller billed the Zylstras for 1.20 hours
and described the meeting as, “Conference with Robert on manure
easement; review easements and agreement.” There is nothing in the
record to indicate that Stoller represented the Zylstras when they
executed the manure easement agreements with NuStar or that he had
any further involvement in the sale of Sibley Dairy.
Stoller continued to represent the Zylstras in a number of other
legal matters between 2007 and 2014. In December 2013, Stoller began
representing the Zylstras in a small claims matter. The case was
submitted to the small claims court on February 10, 2014, but the court
did not issue its ruling until May 30. Stoller began representing NuStar
in early May in an action regarding loan covenants. Also in early May,
Stoller began contacting the Zylstras on behalf of NuStar. At least part of
these contacts involved the Zylstras’ failure to provide NuStar with a
deed to property involving ingress. Stoller acknowledges that he
contacted Robert about the Zylstras’ need to sign the deed. On May 13,
Stoller sent the Zylstras an email that stated it was the third time he had
contacted them about the deed to ingress property sold by the Zylstras to
NuStar. Stoller wrote in the email,
I must now put you on formal notice that if the signed deed
is not received by my office by the close of business on
Wednesday, May 14, 2014, that I will need to pursue the
appropriate remedies for specific performance and damages
on behalf of Nustar.
Stoller also wrote in his email, “I have tried to remain neutral in those
matters and advised both parties that I could represent neither.”
5
In this same email, Stoller informed the Zylstras that he would no
longer be representing them in any future matters. Robert acknowledges
that he understood the May 13 email as a severance of the attorney–
client relationship. Stoller emailed the Zylstras again on May 14,
expressing disappointment that the Zylstras were not going to sign the
deed. Stoller also reminded Robert of his prior financial situation and
how Stoller had helped him in the past.
By May 15, the Zylstras had retained John Sandy to represent
them in their dealings with NuStar. In Sandy’s correspondence to Stoller
that same day, he alerted Stoller that the Zylstras found his
representation of NuStar to be a conflict of interest based on his prior
legal representation and counsel provided to the Zylstras. Sandy
specifically requested that Stoller cease further representation of NuStar
when those interests conflicted with the Zylstras.
On June 5, Stoller sent the Zylstras a letter notifying them of the
judge’s ruling in the small claims case and informing them that he
believed the decision was appealable. Stoller further notified the Zylstras
of their rights to appeal and the deadlines associated with such an
appeal. Stoller wrote he would be willing to file an appeal on their behalf
and included information about his retainer and billing rate. Stoller also
advised the Zylstras that if they chose to have another attorney represent
them on the appeal he would release their file to that attorney.
On July 9, Stoller filed a multicount petition on behalf of NuStar
against the Zylstras. The petition alleged the Zylstras agreed to sell
NuStar a parcel in farmland in 2008, but they failed to tender the
requisite deed. One count of the petition also alleged the Zylstras did not
abide by certain terms contained in the manure easement agreements.
In response, the Zylstras filed a preanswer motion to dismiss based on
6
statute of limitations grounds. They also filed a motion seeking to
disqualify Stoller as the attorney for NuStar based on a conflict of
interest. 3
On August 8, the district court held a hearing, and the parties
argued both the motion to dismiss and the motion to disqualify Stoller.4
On October 14, the district court denied both motions. 5 On November
10, the Zylstras filed an application for interlocutory appeal seeking
review of the district court’s denial of their motion to disqualify Stoller.
We granted the application for interlocutory appeal on December 5.
II. Standard of Review.
We evaluate the district court’s decision regarding attorney
disqualification for an abuse of discretion. Bottoms v. Stapleton, 706
N.W.2d 411, 414 (Iowa 2005). A district court “abuses its discretion
when its ruling is based on clearly untenable grounds.” Id. at 415. A
ground is clearly untenable when the court relies on an improper legal
standard or applies the law in error. Id. A district court’s “factual
findings in disqualifications will not be disturbed on appeal if they are
supported by substantial evidence.” Id. (quoting Killian v. Iowa Dist. Ct.,
452 N.W.2d 426, 428–29 (Iowa 1990)). The party moving for an
3In addition to the motion in district court to disqualify Stoller, the Zylstras filed
a complaint with the Iowa Supreme Court Attorney Disciplinary Board. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Stoller, ___ N.W.2d ___, ___ (2016).
4While the district court’s decision was still pending, Stoller, on behalf of
NuStar, filed an application for default judgment. The court entered the default
judgment against the Zylstras, but later granted the Zylstras’ motion to set aside the
default judgment.
5Following the ruling, the Zylstras filed an answer, counterclaim, third-party
claim, and a number of motions. None of these motions are relevant to the appeal at
hand which deals solely with Stoller’s representation of NuStar.
7
attorney’s disqualification bears the burden of proving the facts
necessary to establish the disqualification is proper. Id. at 418.
III. Analysis.
The right of a party to choose his or her own attorney
is important, but it must be balanced against the need to
maintain “the highest ethical standards” that will preserve
the public’s trust in the bar and in the integrity of the court
system.
Id. at 415 (quoting Killian, 452 N.W.2d at 430). A court must necessarily
balance these two competing interests when determining whether to
disqualify an attorney. See id. In doing so, the court “must also be
vigilant to thwart any misuse of a motion to disqualify for strategic
reasons.” Id. When we evaluate motions to disqualify an attorney, we
use our Iowa Rules of Professional Conduct as the starting point. Id.A. Rule 32:1.7—Conflict of Interest. Rule 32:1.7 covers
concurrent conflicts of interest and states in pertinent part,
(a) Except as provided in paragraph (b), a lawyer shall
not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly
adverse to another client; or
(2) there is 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 by a personal interest of the lawyer.
Iowa R. Prof’l Conduct 32:1.7(a). The rule goes on to state that a lawyer
may continue with the representation of a client if certain stipulations
are met, one of which is that each client gives informed, written consent.
Id. r. 32:1.7(b).
The Zylstras allege that Stoller’s representation of NuStar was a
concurrent conflict of interest with his representation of them. They
8
argue that he began the action on behalf of NuStar in early May, while
knowing that the representation would be adverse to the Zylstras
because it involved a deed between the two parties. Further, Stoller
began contacting the Zylstras on behalf of NuStar before the May 13
email officially terminating his attorney–client relationship with the
Zylstras on the small claims case. Stoller responds that there was no
concurrent conflict of interest because he did not file the action on behalf
of NuStar against the Zylstras until after the May 13 email terminating
the attorney–client relationship. In the alternative, the Zylstras argue
that Stoller’s June 5 email indicates that he was continuing to represent
them in the small claims matter until the court issued its ruling. Even
thereafter, Stoller advised the Zylstras there was a basis to appeal the
judgment, the time for perfecting such an appeal, and his willingness to
continue representing them in the appeal. Stoller contends that it was
his duty to inform the Zylstras, as his former clients, of the outcome of
the small claims hearing and the time limits for appeal. He further
contends that, although he said he would be willing to represent the
Zylstras on the appeal, he was also recommending they find alternate
representation and thus was only informing them of their options if they
chose to go forward with an appeal.
Before we turn to an analysis of whether a concurrent conflict of
interest exists, we must address two questions: when the attorney–client
relationship between the Zylstras and Stoller ended, and when the
attorney–client relationship between NuStar and Stoller began. The first
question we may dispose of easily. Generally, a lawyer’s representation
of a client extends until the time period for motions or appeals expires in
a civil action. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Marks, 814
N.W.2d 532, 538 (Iowa 2012). However, both the attorney and the client
9
may terminate the relationship prior to this natural ending. See id. at
539. Both Stoller and the Zylstras agree that the attorney–client
relationship was terminated with the May 13 email. Further, while
Stoller did offer to represent the Zylstras on the appeal, the Zylstras did
not actually appeal the small claims case and did not solicit Stoller’s
services on any other legal matters. We find that the attorney–client
relationship between Stoller and the Zylstras ended with the May 13
email.
The next question we must address is when the attorney–client
relationship between Stoller and NuStar began. The attorney–client
relationship is governed by general contract principles. Iowa Supreme
Ct. Att’y Disciplinary Bd. v. Blessum, 861 N.W.2d 575, 588 (Iowa 2015).
It may be either express, such as when representation is based on a
written agreement, or implied by the conduct of the parties. Id. There
are three elements that must be met to find that an attorney–client
relationship has been established:
(1) a person sought advice or assistance from an attorney,
(2) the advice or assistance sought pertained to matters
within the attorney’s professional competence, and (3) the
attorney expressly or impliedly agreed to give or actually gave
the desired advice or assistance.
Id. (quoting Comm. on Prof’l Ethics & Conduct v. Wunschel, 461 N.W.2d
840, 845 (Iowa 1990)). The relationship between Stoller and NuStar
clearly meets this test. NuStar sought advice from Stoller at least
beginning in early May about the action that required a deed from the
Zylstras. The advice they sought from Stoller pertained to matters within
his professional ability. Stoller has practiced law for a number of years
and across a number of areas. Last, Stoller both agreed to give and
actually gave NuStar advice and assistance. On NuStar’s behalf, Stoller
10
began contacting the Zylstras regarding the deed that NuStar was
demanding. We find that the attorney–client relationship between
NuStar and Stoller began, at the latest, in early May. This is also
confirmed by Stoller’s correspondence with the Zylstras on May 13 in
which he asserts that it was the third time he had contacted them in
regard to the deed. We now turn to a discussion of whether this
attorney–client relationship involved a concurrent conflict of interest that
violates rule 32:1.7. See Iowa R. Prof’l Conduct 32:1.7(a).
There are two ways for a concurrent conflict of interest to exist
under rule 32:1.7. Id. The first is if “the representation of one client will
be directly adverse to another client.” Id. r. 32:1.7(a)(1). The second is if
“there is a significant risk that the representation . . . will be materially
limited by the lawyer’s responsibilities to another client, a former client,
or a third person . . . .” Id. r. 32:1.7(a)(2). We may find a concurrent
conflict of interest under either situation.
We have acknowledged that rule 32:1.7(a) “applies where directly
adverse representation will take place, as when one current client is
about to file suit against another current client.” 1 Geoffrey C. Hazard,
Jr. & W. William Hodes, The Law of Lawyering § 11.8, at 11-22 (3d ed.
2004 Supp.); accord Bottoms, 706 N.W.2d at 416. The comments to the
rule expand on what a “directly adverse” action may be:
Loyalty to a current client prohibits undertaking
representation directly adverse to that client without that
client’s informed consent. Thus, absent consent, a lawyer
may not act as an advocate in one matter against a person
the lawyer represents in some other matter, even when the
matters are wholly unrelated.
Iowa R. Prof’l Conduct 32:1.7 cmt. 6.
Stoller acknowledged in a letter to the Iowa Supreme Court
Attorney Disciplinary Board that he began the representation of NuStar
11
in early May and that the Zylstras were aware of his representation of
NuStar. It is unclear from the record at what point Stoller realized the
action would include the deed that NuStar wanted the Zylstras to sign.
However, by the time Stoller sent the May 13 email, he was already
contemplating taking action against the Zylstras on behalf of NuStar.
The email stated,
I must now put you on formal notice that if the signed deed
is not received by my office by the close of business on
Wednesday, May 14, 2014, that I will need to pursue the
appropriate remedies for specific performance and damages
on behalf of Nustar.
In this email, Stoller clearly demonstrates the intent to pursue a
future, adverse action against the Zylstras on behalf of NuStar. Although
Stoller terminated the attorney–client relationship with the Zylstras in
the same email, the intent to pursue legal action unless the Zylstras
complied with NuStar’s request to sign the deed arose before the email
was sent—which is precisely why the demand or “formal notice” language
is included. We find that Stoller’s representation of NuStar was a
directly adverse concurrent conflict of interest. Because Stoller did not
properly obtain consent from the Zylstras to represent NuStar, his
actions fall squarely within the guidance of the comments that “absent
consent, a lawyer may not act as an advocate in one matter against a
person the lawyer represents in some other matter, even when the
matters are wholly unrelated.” Iowa R. Prof’l Conduct 32:1.7 cmt. 6.
Thus, we find Stoller should be disqualified from representing NuStar in
the action against the Zylstras. Because the district court applied the
law in error, we find that it abused its discretion in concluding that
Stoller should not be disqualified. See Bottoms, 706 N.W.2d at 415.
12
B. Rule 32:1.9(a)—Duties to Former Clients. Stoller argues
that, even though there was a concurrent conflict of interest in the past,
the conflict no longer exists because he severed the attorney–client
relationship, and therefore he can continue to represent NuStar in the
current action against the Zylstras. Rule 32:1.9(a) concerns a lawyer’s
duties to former clients. In pertinent part, it provides,
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 the former client gives informed consent,
confirmed in writing.
Iowa R. Prof’l Conduct 32:1.9(a). The comments expand on what makes
a matter “substantially related” for purposes of the rule. See id. r. 32:1.9
cmt. 3. A matter is substantially related if it involves the same
transaction or legal dispute. Id. If there is “a substantial risk that
confidential factual information as would normally have been obtained in
the prior representation would materially advance the client’s position in
the subsequent matter,” then the matter is substantially related. Id.We consider three factors when we determine whether a
substantial relationship exists:
(1) the nature and scope of the prior representation; (2) the
nature of the present lawsuit; and (3) whether the client
might have disclosed a confidence to [his or] her attorney in
the prior representation which could be relevant to the
present action.
Doe ex rel. Doe v. Perry Cmty. Sch. Dist., 650 N.W.2d 594, 598 (Iowa
2002).
Under the first factor, we must consider the scope—if any—of
Stoller’s representation of the Zylstras in regard to the manure easement
agreements. There is no question that Stoller and Robert met to discuss
13
the agreements and that Stoller was aware the Zylstras intended to enter
into the agreements with NuStar. During the meeting, Robert showed
Stoller the easement agreements. Stoller acknowledges that he looked at
the first page and made some notations, though he contends the
notations were made at Robert’s request so Robert would know what he
needed to discuss with another attorney. Stoller further claims that he
did not read the entirety of the agreements. During the meeting, Stoller
advised Robert to find another attorney to help him with the agreements
because it was not an area of the law Stoller was familiar with. He gave
Robert the names of two attorneys to contact.
Stoller sent an email to Robert following the meeting that
summarized their discussion about the easement agreements. The email
stated that Robert asked Stoller to look at the easements and that he
“briefly looked at them.” Stoller also wrote, “The changes you were
talking about should be run by [the other attorney] and I suggest that if
approved they be included in the easements. I would also think that
some permit would be necessary.” This reflects at least some level of
advice given to Robert by Stoller. However, this is in stark contrast to
our previous cases where we have found an attorney was extensively
involved in prior representation.
In Doe, we found an attorney was highly involved in a client’s prior
representation when he had met with the clients, had telephone
conversations with the clients, appeared as their attorney, and signed
pleadings on their behalf. 650 N.W.2d at 599. In Marks, we found that
the attorney violated rule 32:1.9(a) when he represented a client in a
foreclosure action and later represented his own wife in the sale of
property to that same former client. 814 N.W.2d at 539. We found that
the attorney’s representation of the client and his wife were substantially
14
related because he had obtained information about the client’s property
during the foreclosure action. Id. In comparison to our prior cases, we
cannot say that the scope of Stoller’s representation of the Zylstras
regarding the manure easement agreements was in any way significant.
The second factor we consider is the nature of the present lawsuit
between the Zylstras and NuStar. See Doe, 650 N.W.2d at 598. In the
original petition that Stoller filed on behalf of NuStar, he included six
counts. All of the counts except one deal with a real estate contract
between NuStar and the Zylstras. Stoller did not participate in the real
estate contract on behalf of the Zylstras. Count IV alleges a breach of
the manure easement agreements between NuStar and the Zylstras.
Although the majority of the counts do not relate the manure easement
agreements that Stoller had knowledge of, at least one part of the current
lawsuit does relate to the prior scope of Stoller’s representation.
The final factor we consider is “whether the client might have
disclosed a confidence to [his or] her attorney in the prior representation
which could be relevant to the present action.” Id. The meeting between
Robert and Stoller to discuss the manure easement agreements was
brief. The parties only superficially discussed the substance of the
agreements and Stoller specifically suggested that Robert seek other
competent agricultural law counsel to review the agreements before
signing them. The email from Stoller does note that the two discussed
whether permits were required or whether Robert should change
anything in the agreements. However, nothing from this meeting
indicates that Robert disclosed anything in confidence about the
agreements to Stoller that would affect the current lawsuit between the
Zylstras and NuFarm.
15
We do not find that a substantial relationship exists sufficient to
disqualify Stoller under rule 32:1.9(a). We therefore find that the district
court did not abuse its discretion in holding that Stoller could not be
disqualified under the substantial relationship test.
IV. Conclusion.
We find that the district court did not abuse its discretion in
concluding that any prior relationship between Stoller and Zylstra in
regard to the manure easement agreements failed the substantial
relationship test. However, we find that Stoller did have a concurrent
conflict of interest. Therefore, we conclude that the district court abused
its discretion in not disqualifying Stoller from representing NuStar in the
action. On remand, the district court should enter an order disqualifying
Stoller from further representation of NuStar in this lawsuit.
DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED.