Gregory Lee Dahl has asked us to exercise supervisory control
over the First Judicial District Court, Lewis and Clark
County, in that court's Cause No. ADV 2014-255.
Specifically, Dahl asks us to reverse two orders of the
District Court: one that denied his motion to disqualify
counsel, and one that compelled arbitration. At our
invitation, the defendants in the District Court case have
filed a response objecting to the petition for supervisory
and Defendant Mark Runkle were business partners and were the
principals in R&D Partners, LLC (R&D). Their business
relationship deteriorated and Dahl filed this action in the
moved the District Court to disqualify Runkle's counsel
From 2003 until 2008, the law firm of Gough, Shanahan,
Johnson, and Waterman ("Gough, Shanahan")
represented R&D. At that time, KD Feeback was a partner
in Gough, Shanahan. Feeback now represents Runkle and R&D
in the present case. Dahl argued that Feeback should be
disqualified because his earlier representation of R&D
created a "multi-dimensional conflict of interest."
The District Court denied Dahl's motion.
and Runkle had signed two operating agreements for
R&D-one in 2003 and one in 2008. Both operating
agreements provided that Dahl and Runkle would arbitrate any
disputes arising out of the agreements; however, the
agreements each specified a different method for selecting an
arbitrator in the event arbitration became necessary. Dahl
argued that the 2008 operating agreement was void and thus
the 2003 operating agreement-and its arbitration
provision-would control. Runkle disagreed. The District Court
found Dahl was estopped from arguing that the 2008 operating
agreement was void and granted Runkle's motion to compel
arbitration under the 2008 operating agreement, thereby
selecting the arbitrator according to the method prescribed
in the 2008 operating agreement.
appealed the District Court's order denying his motion to
disqualify counsel and its order compelling arbitration under
the 2008 operating agreement. (Case No. DA 18-0553.) We
dismissed the appeal as not properly before this Court. Dahl
now petitions for a Writ of Supervisory Control, arguing that
the District Court's rulings were in error and that the
extraordinary remedy of supervisory control is warranted
because he would be forced to arbitrate against an opponent
whose counsel is tainted by a conflict of interest, and he
would be precluded from challenging the validity of the 2008
control is an extraordinary remedy that is sometimes
justified when urgency or emergency factors make the normal
appeal process inadequate, the case involves purely legal
questions and, in a civil case, the other court is proceeding
under a mistake of law and is causing a gross injustice, or
constitutional issues of state-wide importance are involved.
M. R. App. P. 14(3).
with Rule 14(3), it is the Court's practice to refrain
from exercising supervisory control when the petitioner has
an adequate remedy of appeal. E.g., Buckles v. Seventh
Judicial Dist. Ct, No. OP 16-0517, 386 Mont. 393, 386
P.3d 545 (table) (Oct. 18, 2016); Lichte v. Mont.
Eighteenth Judicial Dist. Ct., No. OP 16-0482, 385 Mont.
540, 382 P.3d 868 (table) (Aug. 24, 2016). "[A] writ of
supervisory control is not to be used as a means to
circumvent the appeal process. Only in the most extenuating
circumstances will such a writ be granted." State ex
rel. Ward v. Schmall, 190 Mont. 1, 617 P.2d 140 (1980).
The Motion to Disqualify
first consider whether the District Court's denial of
Dahl's motion to disqualify counsel warrants supervisory
control. An erroneous ruling on a motion to disqualify could
cause irreparable harm and thus may warrant supervisory
control. Schuff v. A. T. Klemens & Son, 2000 MT
357, ¶¶ 49-50, 303 Mont. 274, 16 P.3d 1002. The
existence of an attorney-client relationship is generally a
question of fact, which we review for clear error.
Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 MT 15,
¶ 14, 363 Mont. 366, 272 P.3d 635 (citations omitted).
We review a district court's denial of a motion to
disqualify for abuse of discretion. Schuff, ¶
arguments rest on the premise that he, personally, was
Feeback's client because the law firm at which Feeback
was a partner represented R&D while Dahl was an officer
of R&D. In support of this premise, Dahl relies on
Jnter-Fluve v. Mont. Eighteenth Judicial Dist.
Ct, 2005 MT 103, ¶ 35, 327 Mont. 14, 112 P.3d 258,
in which we held:
[W]hile Inter-Fluve was the client with respect to the
attorney-client communications at issue here, the directors
were joint clients with Inter-Fluve. As corporate directors
are jointly responsible for the proper management of a
corporation, it is consistent with this joint obligation that
they be treated as joint clients with the corporation when
legal advice is rendered to the corporation through one of
its officers or directors.
District Court found Dahl's reliance on
Inter-Fluve misplaced, noting that
Inter-Fluve's ultimate holding is that a
corporation's directors are clients for the purposes of
attorney-client privilege, and the case does not hold, as
Dahl suggests, that a corporation's directors are
considered individual clients of an attorney representing the
corporation. The court reasoned that Inter-Fluve was
inapplicable because it does not establish that Dahl was an
individual client for the purpose of analyzing a conflict of
interest. We agree with the District Court that, absent a
showing that Gough, Shanahan, or Feeback himself, represented
Dahl on an individual basis, Feeback's representation of
Runkle and R&D in the present matter does not give rise
to a conflict of interest. As a practical matter, any
confidential business documents that R&D shared with
counsel while Dahl was an officer could also be shared with
any future counsel retained by R&D. Thus, any information
Feeback obtained from Dahl as an officer of
R&D-information that Dahl also had-does not now give rise
to a conflict of interest.
further argues that he still has "an interest" in
R&D and thus Feeback cannot represent Runkle and R&D
against him-a percentage interest R&D calculates as
0.00003571 and characterizes as "effectively zero."
Under Dahl's theory, no attorney could represent
R&D against Dahl so long as he ...