Waggoner v. Marsh

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

DAVID LEE WAGGONER and GINA )

ANNETTE WAGGONER, )

)

Plaintiffs, )

)

Case No. 25-cv-00254-JFH-SH

v. )

)

SCOTT MARSH, et al., )

)

Defendants. )

OPINION AND ORDER

Before the Court are Plaintiffs’ motions to bar joint representation (ECF No. 13)

and disqualify various defendants’ counsel (ECF Nos. 31 & 38).1 Plaintiffs’ motions lack

legal or evidentiary support and will be denied.

Background and Procedural History

This case arises out of Plaintiffs’ claims against (1) the Rogers County Government

and certain Rogers County officials2 (the “County Defendants”); (2) Rogers County

District Attorney Matt Ballard, in his individual and official capacities (“Ballard”); (3) the

Oklahoma Turnpike Authority and its executive director, Joe Echelle (“Turnpike

Defendants”); and (4) and the Claremore Daily Progress newspaper, its editor, and

publisher (the “Newspaper Defendants”).3 (ECF No. 2.) Plaintiffs’ complaint alleges that,

1 This case has been referred to the undersigned for all further proceedings in accordance

with 28 U.S.C. § 636. (ECF No. 58.) The pending motions are pretrial matters subject to

§ 636(b)(1)(A).

2 These include Rogers County Assessor Scott Marsh; Rogers County Treasurer Jason

Carini; Rogers County Sheriff Scott Walton; Rogers County Clerk Jeanne Heidlage; and

Rogers County Commissioners Ron Burrows, Steve Hendrix, and Dan DeLozier, each in

their individual and official capacities. (ECF No. 2.)

3 This includes Claremore Daily Progress (CNHI corporate media); Emmet Jamieson,

editor; and Ed Choate, publisher. (ECF No. 2.)

in light of McGirt v. Oklahoma, 591 U.S. 894 (2020), (1) Rogers County lacks jurisdiction

to levy or collect ad valorem tax in Indian country; (2) the Claremore Daily Progress

published tax delinquency notices and other notices from state and county court actions

affecting Rogers County citizens that are void due to lack of jurisdiction; and (3) the

Oklahoma Turnpike Authority may not collect tolls on turnpikes that cross Indian

country. (Id. at 19–22.4)

Upon being served, counsel for Defendants entered their appearances. Relevant

to Plaintiffs’ motions, the County Defendants are represented by Thomas LeBlanc and

Matthew Free (ECF Nos. 25–26), while Ballard is represented by Oklahoma Assistant

Attorneys General Alejandra Brigida and Devan Pederson (ECF Nos. 36–37, 49).5

Plaintiffs have now filed a motion to bar the joint representation of individual

County Defendants and Ballard (ECF No. 13); to disqualify LeBlanc and Free (ECF No.

31); and to disqualify Brigida and Pederson (ECF No. 38). Plaintiffs argue joint

representation is improper under Oklahoma Rule of Professional Conduct (“ORPC”) 1.7,

which prohibits representing a client if that representation involves a concurrent conflict

of interest.6 (ECF No. 13 at 2–3.) Plaintiffs further contend that attorneys Brigida and

Pederson should be disqualified from representing Ballard based on their alleged misuse

of public funds; failure to produce valid oaths and bonds; violation of ORPC 1.7 and 1.13;

violation of numerous civil and criminal federal statutes; and fraud on the court. (ECF

No. 38 at 2–3; ECF No. 59 at 2–4.) Plaintiffs also move to disqualify LeBlanc and Free

4 References to page numbers refer to the ECF header.

5 While Pederson and Brigida initially only appeared for Ballard in his official capacity

(ECF Nos. 36–37), they have since stated that they are representing Ballard in his

individual capacity as well (see, e.g., ECF No. 49 at 8).

6 The ORPC are found at Okla. Stat. tit. 5, ch. 1, app. 3-a.

based on a similar collection of federal statutes, rules of professional conduct, and case

law. (See ECF No. 31 at 2–4.)

Analysis

I. Standard of Review

A. Motions to Disqualify

A court has “broad discretion” in determining whether an attorney should be

disqualified. Weeks v. Indep. Sch. Dist. No. I-89, 230 F.3d 1201, 1211 (10th Cir. 2000).

As the party seeking disqualification, Plaintiffs bear the burden of proving its necessity.

World Youth Day, Inc. v. Famous Artists Merch. Exch., Inc., 866 F. Supp. 1297, 1299 (D.

Colo. 1994); Alstatt v. Bd. of Cnty. Comm’rs, No. CIV-22-811-D, 2023 WL 5019914, at *1

(W.D. Okla. Aug. 7, 2023); Com. Com. Partners, LLC v. Miliken & Co., No. 22-cv-00020-

JNP-PK, 2022 WL 17093650, at *3 (D. Utah Nov. 21, 2022).

Two sources of authority govern motions to disqualify in federal court. Cole v.

Ruidoso Mun. Schs., 43 F.3d 1373, 1383 (10th Cir. 1994). “First, attorneys are bound by

the local rules of the court in which they appear.” Id. In this Court, that means attorneys

are expected to conduct themselves in accordance with the ORPC.7 See LGnR 3-2.

Second, motions to disqualify “are decided by applying standards developed under federal

law” and are consequently “governed by the ethical rules announced by the national

profession and considered in light of the public interest and the litigants’ rights.” Cole,

43 F.3d at 1383 (citation modified).

Although this Court must consult the ORPC, it is “not bound by state-court

interpretations of such rules.” Acct. Principals, Inc. v. Manpower, Inc., 599 F. Supp. 2d

7 Federal district courts typically adopt the professional conduct rules of the state in which

they sit. Cole, 43 F.3d at 1383.

1287, 1291 (N.D. Okla. 2008). But, “it would arguably create difficulties for practitioners

in Oklahoma were we to adopt an interpretation of [the ORPC] different from that

adopted by the Oklahoma Supreme Court.” Weeks, 230 F.3d at 1214 (Briscoe, J.,

concurring). So, the Court applies federal standards “while attempting to avoid any

inconsistencies with state law that would create procedural difficulties for practitioners

in Oklahoma.” Acct. Principals, 599 F. Supp. 2d at 1291 (citation modified).

When considering a motion to disqualify, a court “must carefully balance the

interest in protecting the integrity of the judicial process with the right of a party to have

counsel of its choice.” State Farm Mut. Auto. Ins. Co. v. Dowdy ex rel. Dowdy, 445 F.

Supp. 2d 1285, 1287 (N.D. Okla. 2006). “Under that standard, disqualification ‘is such a

drastic measure that it should be invoked if, and only if, the Court is satisfied that real

harm is likely to result.” Grant v. Flying Bud Farms, LLC, No. 22-CV-1-TCK-CDL, 2022

WL 2955147, at *4 (N.D. Okla. July 26, 2022) (quoting Ark. Valley State Bank v. Phillips,

2007 OK 78, ¶ 13, 171 P.3d 899, 905).8 “Motions seeking the disqualification of opposing

counsel are viewed with suspicion, and the Court must guard against the possibility that

disqualification is sought to secure a tactical advantage in the proceedings.” Madden v.

Elara Caring, LLC, No. CIV-19-1178-G, 2021 WL 4301493, at *1 (W.D. Okla. Sept. 21,

2021) (citation modified).

B. Pro Se Litigants

As Plaintiffs are proceeding pro se, the Court liberally construes their filings. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). That said, it is not “the proper

function of the district court to assume the role of advocate for the pro se litigant.” Hall

8 The Oklahoma Supreme Court has held that the “burden rests with the moving party to

establish the likelihood of such harm by a preponderance of the evidence.” Id. at 911, ¶ 23.

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Tenth Circuit “has repeatedly

insisted that pro se parties follow the same rules of procedure that govern other litigants.”

Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation

omitted). As such, “the court will not construct arguments or theories for the plaintiff in

the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d

1156, 1159 (10th Cir. 1991).

II. Plaintiffs’ Motions

A. Motion to Bar Joint Representation

As noted above, Plaintiffs’ motion to bar joint representation rests primarily on the

contention that ORPC 1.7 prevents attorneys from representing clients when such

representation involves a concurrent conflict of interest. (ECF No. 13 at 2–3.) Plaintiffs

contend a conflict is guaranteed here due to the severity of the allegations in the complaint

and the certainty that “Defendants will present conflicting, adverse defenses, rendering

joint representation ethically impossible.” (Id. at 3–4 (outlining various conflicts

Plaintiffs believe might arise due to each County Defendant’s role in tax collection and

enforcement).) Plaintiffs maintain that allowing joint representation “would severely

prejudice Plaintiffs, compromise judicial integrity, and actively undermine public trust.”

(Id. at 2.)

The individual County Defendants, meanwhile, interpret Plaintiffs as arguing that

their counsel is barred from representing them “in their individual and official capacities.”

(ECF No. 84 at 2.) County Defendants contend that Plaintiffs have failed to meet “their

high burden to show” impropriety because they have not demonstrated real harm likely

to result from the representation and because any “potential conflicts” have not matured

into “actual” ones. (Id. at 2–3.) Counsel for County Defendants also indicate that their

clients have authorized them to represent County Defendants in their individual and

official capacities. (Id. at 3.)

Having reviewed the parties’ briefs, the Court concludes that Plaintiffs’ motion

should be denied.

1. ORPC 1.7

ORPC 1.7 addresses concurrent conflicts of interest. Relevant here, a concurrent

conflict of interest exists if “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 . . . .” ORPC 1.7(a)(2); see id. cmt. 23 (noting “simultaneous representation of

parties whose interests in litigation may conflict, such as . . . co-defendants, is governed

by paragraph (a)(2)”). A concurrent “conflict may exist by reason of substantial

discrepancy in the parties’ testimony, incompatibility in positions in relation to an

opposing party or the fact that there are substantially different possibilities of settlement

of the claims or liabilities in question.” Id.

If a concurrent conflict arises, a lawyer shall not represent a client, unless

(1) the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation

or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.9

9 “Thus, even when there exists a concurrent conflict of interest, that conflict can be

waived so long as the requirements identified in Rule 1.7(b) are met.” Northrop v. Am.

Express Co., No. 09-CV-005-TCK-TLW, 2010 WL 11561570, at *3 (N.D. Okla. Feb. 3,

2010).

ORPC 1.7(b). However, a lawyer “cannot undertake common representation of clients

where contentious litigation or negotiations between them are imminent or

contemplated,” or “when it is unlikely that impartiality can be maintained.” ORPC 1.7

cmt. 29. Additionally, in instances where a “potential conflict matures into an actual

material conflict, separate representation would be required.” Johnson v. Bd. of Cnty.

Comm’rs, 85 F.3d 489, 493 (10th Cir. 1996) (citing Colorado’s identical Rule 1.7).

2. Representation of Parties in Their Individual and Official

Capacities

Applying similar principles, the Tenth Circuit has recognized that given “the

potential conflict between the defenses available to a government official sued in his

individual and official capacities, . . . separate representation for the official in his two

capacities is a wise precaution.” Id. (citation modified). This is because, when “a

governmental official is sued in his official and individual capacities for acts performed in

each capacity, those acts are ‘treated as the transactions of two different legal

personages.’” Id. (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 543 n.6

(1986)). That said, the Tenth Circuit has not held that this potential for conflict

“mandates” separate representation. Id. (declining to adopt a per se rule on the matter).

The court simply has held “that when a potential conflict exists because of the different

defenses available to a government official sued in his official and individual capacities, it

is permissible, but not required, for the official to have separate counsel for his two

capacities.” Id. (emphasis added). It is only once the potential conflict becomes an actual

material conflict that “separate representation would be required.” Id.

3. Plaintiffs Fail to Show a Concurrent Conflict of Interest

Here, Plaintiffs have failed to carry their burden of showing the existence of a

concurrent conflict of interest—particularly one in which there is a significant risk that

counsel’s joint representation of County Defendants will be materially limited to such an

extent that the integrity of the judicial process will be harmed. For instance, Plaintiffs

have shown no substantial discrepancy in County Defendants’ positions; have shown no

imminent and contentious litigation or negotiation between the parties; and have

otherwise failed to demonstrate that impartiality between the parties is unlikely to be

maintained.

In their motion, Plaintiffs argue joint representation of criminal defendants

presents a grave risk of conflict. (ECF No. 13 at 3.) This is true. See ORPC Rule 1.7 cmt.

23. But this is a civil case, not a criminal one.10 Further, Plaintiffs’ remaining allegations

fall into the category of potential conflicts. Until Plaintiffs demonstrate that these

potential conflicts have matured into actual ones, the Court declines to employ such a

drastic measure as disqualifying counsel and depriving the defendants of their

representatives of choice. See Rascon v. Brookins, No. CV-14-00749-PHX-JJT, 2017 WL

1019660, at *3 (D. Ariz. Mar. 16, 2017) (“the potential conflict is too remote to warrant

prejudicing Defendants by requiring separate counsel”). The Court finds no disqualifying

conflict between counsel’s representation of the various County Defendants and finds no

conflict in their representation of those defendants in their individual and official

10 Plaintiffs cite various criminal statutes in their complaint (see, e.g., ECF No. 2 at ¶ 36),

but these “do not provide for a private right of action and are thus not enforceable through

a civil action.” Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).

capacities. The Court will deny Plaintiffs’ Motion to Bar Joint Representation of

Individual Defendants Due to Irreconcilable Conflicts of Interest (ECF No. 13).

B. Motion to Disqualify Brigida and Pederson

Plaintiffs also move to disqualify counsel for Matt Ballard from representing him

in his individual capacity. (ECF No. 38.) Viewed with the requisite “suspicion” required

for a motion to disqualify opposing counsel, Madden, 2021 WL 4301493, at *1, the Court

finds that none of Plaintiffs’ cited authority provides a basis to disqualify Brigida or

Pederson.

1. Oath Violations

For instance, Plaintiffs argue Brigida and Pederson “individually violate their

sworn duties by representing Ballard in his personal capacity with public funds” and by

“aiding violations of McGirt,” which goes against their oath to uphold federal law. (ECF

No. 38 at 5 (citing Okla. Stat. tit. 5, § 2).) Plaintiffs also complain that neither attorney

has “produced valid oaths or bonds,” which, Plaintiffs allege, voids their representation.

(Id. at 6 (citing Okla. Stat. tit. 5, § 2; tit. 51, § 36.2A); ECF No. 59 at 3 (citing Anderson v.

City of Parsons, 496 P.2d 1333 (1972)).)

None of the Oklahoma statutes Plaintiffs cite, however, support their argument.

One statute merely sets out the oath that attorneys must take upon being admitted to

practice. See Okla. Stat. tit. 5, § 2. Nothing in the oath stands for the proposition that

counsel is prohibited from representing clients accused of violating a plaintiff’s rights.

The other provides the loyalty oath required of every “officer and employee of the

State of Oklahoma, or of a county, school district, municipality, public agency, public

authority, or public district.” See Okla. Stat. tit. 51, §§ 36.1, 36.2A. Again, nothing in the

oath prohibits attorneys from representing clients accused of the acts Plaintiffs describe,

nor do the statutes otherwise require an attorney to produce such an oath in litigation.

Finally, Anderson—a Kansas state court opinion—does not address attorneys’ oaths. See

Anderson, 496 P.2d at 1336 (addressing, among other things, conflicts of interest).

2. Misuse of Public Funds

Plaintiffs next argue the alleged impropriety of using public funds to “defend

personal-capacity claims involving deliberate violations of federal law.” (ECF No. 38 at 5

(citing Okla. Stat. tit. 51, § 156(F), and Hafer v. Melo, 502 U.S. 21 (1991)).) Plaintiffs also

argue other statutes prohibit “representation of Ballard’s personal crimes” and “willful

violations.” (ECF No. 59 at 2 (citing Okla. Stat. tit. 74, § 20i).) Yet, again, there is no

support for Plaintiffs’ arguments.

The first statute Plaintiffs cite relates to providing health care information when a

written notice filed under the Oklahoma Governmental Tort Claims Act demands relief

for personal injuries—something utterly irrelevant to this case. Okla. Stat. tit. 51, § 156(F).

The second outlines the requirements when an agency or executive branch official obtains

private legal representation. Okla. Stat. tit. 74, § 20i(A). It does nothing to vitiate other

state laws requiring the Attorney General to represent employees in appropriate

circumstances. See Okla. Stat. tit. 74, § 20f. Finally, the Supreme Court in Hafer did not

hold—as Plaintiffs allege—that “[p]ublic funds cannot lawfully be utilized to defend

personal-capacity claims involving deliberate violations of federal law.” (ECF No. 38 at

5.) Rather, in Hafer, the Supreme Court held “that state officials sued in their individual

capacities are ‘persons’ for purposes of [42 U.S.C.] § 1983.” Hafer, 502 U.S. at 23.

Nothing in Hafer supports Plaintiffs’ arguments.11

3. Conflicts under the ORPC

Plaintiffs also maintain that counsel’s representation of Ballard violates ORPC 1.7

and 1.13. (ECF No. 38 at 6.)

As it relates to ORPC 1.7, Plaintiffs have failed to show any concurrent conflict in

the representation of Ballard in his individual and official capacities. Whatever the

potential for conflict, Plaintiffs have brought forward no facts showing any actual material

conflict, and an initial review of Ballard’s motions to dismiss (ECF Nos. 39 and 49) reveals

none.

Likewise, Plaintiffs fail to explain how ORPC 1.13 reveals a conflict. Among other

things, Rule 1.13 guides attorneys on how to act when they learn that someone associated

with an organizational client intends to act in violation of legal obligations or laws in a

way that is likely to cause substantial injury to the organization. See ORPC 1.13(b)–(e).

The rule does not require disqualification of Ballard’s counsel in this case.12

4. Fraud on the Court

Finally, Plaintiffs argue that “Brigida and Pederson’s deliberate refusal to disclose

funding sources or clarify representation scope constitutes intentional fraud on the court,

11 Plaintiffs’ arguments regarding Harlow v. Fitzgerald, 457 U.S. 800 (1982), are similarly

unsupported. (ECF No. 38 at 4, 6.) In Harlow, the Supreme Court discussed the contours

of the qualified immunity available to Presidential aides. Harlow, 457 U.S. at 809, 813–

19. Harlow provides no basis to disqualify counsel.

12 In Plaintiffs’ reply brief, they also cite “In re Riddle, 857 P.2d 1233, 1237, Okla. 1993”

for the proposition that “Okla. RPC 1.13 requires acting in Oklahoma’s interest, not

Ballard’s.” (ECF No. 59 at 3.) The Court cannot find an Oklahoma State Court case with

this citation. There is an Arizona Supreme Court opinion, but it addresses neither

conflicts nor ORPC 1.13. See In re Riddle, 857 P.2d 1233 (Ariz. 1993).

warranting sanctions under Fed. R. Civ. P. 11 and investigation for obstruction under 18

U.S.C. § 1503.” (ECF No. 38 at 6 (emphasis omitted).) But Plaintiffs do not cite any law

that requires counsel to “disclose funding sources” or that allows them to demand a

criminal investigation in a civil case. The rest of Plaintiffs’ arguments similarly lack merit.

“Fraud on the court is fraud that is ‘directed to the judicial machinery itself,’ and it

occurs ‘where the impartial functions of the court have been directly corrupted.’” Quarrie

v. Bd. of Regents for N.M. Inst. of Mining & Tech., No. 24-2050, 2025 WL 324714, at *3

(10th Cir. Jan. 29, 2025) (unpublished)13 (quoting Bulloch v. United States, 763 F.2d 1115,

1121 (10th Cir. 1985)). It requires a showing of intent to deceive or defraud the Court. Id.

Generally, “only the most egregious misconduct, such as bribery of a judge or members

of a jury, or the fabrication of evidence by a party in which an attorney is implicated will

constitute a fraud on the court.” United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.

2002) (internal quotations omitted). Plaintiffs have made no such showing.

Plaintiffs have further failed to show any entitlement to relief under Fed. R. Civ. P.

11. As a preliminary matter, Plaintiffs have failed to comply with Rule 11’s safe harbor

requirements.14 See Fed. R. Civ. P. 11(c)(2). Even if they had, they have not pointed to

any filings that run afoul of Rule 11(b),15 nor have they adequately explained why such

alleged violation warrants disqualification.

13 Unpublished decisions are not precedential, but they may be cited for their persuasive

value. 10th Cir. R. 32.1(A).

14 While this Court retains its inherent power to impose sanctions, Chambers v NASCO,

Inc., 501 U.S. 32 (1991), this does not excuse Plaintiffs from complying with Rule 11 when

seeking Rule 11 sanctions.

15 Rule 11(b) requires that an attorney certify that to the best of their knowledge, a

pleading or motion (1) is not presented for any improper purpose; (2) includes only

claims and defenses warranted by existing law or by a nonfrivolous argument for

(continued on next page)

The Court will deny Plaintiffs’ Emergency Motion to Disqualify Counsel Alejandra

J. Brigida and Devan A. Pederson from Representing Defendant Matt Ballard in his

Personal Capacity and for Sanctions (ECF No. 38).

C. Motion to Disqualify LeBlanc and Free

Lastly, the Court considers Plaintiffs’ motion to disqualify counsel for County

Defendants, where Plaintiffs “demand this Court stop [them] from illegally defending

Rogers County officials” who have purportedly acted contrary to McGirt. (ECF No. 31 at

1.) Plaintiffs make many of the same arguments as in their motion to disqualify Ballard’s

counsel (id. at 1–3), and the Court rejects those arguments for the same reasons.16

Plaintiffs further argue that counsel have been “[o]mitting official vs. personal

capacity distinctions,” warranting sanctions under Rule 11. (Id. at 3.) Counsel, however,

have been clear that they appear for their clients in both capacities. (ECF Nos. 25–26.)

Their filings similarly distinguish between individual and official capacities. (ECF Nos.

82–83). Plaintiff has shown no “fraud” or “deception” on the Court.

The Court, therefore, will deny Plaintiffs’ Motion to Disqualify Counsel and for

Sanctions (ECF No. 31).

extending, modifying, or reversing existing law; (3) includes factual contentions that have

evidentiary support or are likely to after reasonable investigation/discovery; and

(4) includes denials of factual contentions warranted by evidence or reasonably based on

belief or lack of information. Fed. R. Civ. P. 11(b)(1)–(4).

16 Plaintiffs also make various arguments regarding the purported impartiality of Chief

Judge John F. Heil, III, and the entirety of “Oklahoma’s judiciary.” (ECF No. 31 at 3.)

Judge Heil has separately addressed Plaintiffs’ motion to recuse (ECF No. 57), and no

other motions to reassign are pending. Plaintiffs’ vague assertions of “systemic conflict”

provide no additional bases on which to disqualify opposing counsel.

Conclusion

IT IS THEREFORE ORDERED that the Motion to Bar Joint Representation of

Individual Defendants Due to Irreconcilable Conflicts of Interest (ECF No. 13) is

DENIED; the Emergency Motion to Disqualify Counsel Alejandra J. Brigida and Devan

A. Pederson from Representing Defendant Matt Ballard in his Personal Capacity and

for Sanctions (ECF No. 38) is DENIED; and the Motion to Disqualify Counsel and for

Sanctions (ECF No. 31) is DENIED.

ORDERED this 4th day of August, 2025.

™

lI, S&S

UNITED STATES DISTRICT COURT

14