Florida - CONFLICTS OF INTEREST (including Disqualification)
Court correctly disqualified lawyer and law firm on basis of movant’s subjective belief that firm represented her when it advised her regarding issue that became relevant when firm later sued her. [Added 4/15/21]
Lawyer Walker and his law firm acted as the closing agent and title insurance issuer for a residential real estate transaction. Homeowner Geisler sold the property to Kemp Investments North, LLC (“Kemp”). Geisler provided a sworn affidavit stating that she was the sole owner of the property. She also acknowledged in writing that Walker was not her counsel and did not represent her in the closing. The closing occurred in May 2019.
Unknown to Walker, another deed to the property was recorded in late April 2019 prior to the Geisler-Kemp closing. That deed was a quitclaim deed purported signed by Geisler conveying transferring the property to Englert as joint tenants with right of survivorship. Englert claimed this was in consideration of assistance that he provided to Geisler and the property following hurricane damage. Geisler claimed that the deed was fraudulent and her signature was forged.
When Walker learned about the Englert deed after the closing, he contacted Geisler. “After Walker cautioned her that she would be in trouble if she had secretly transferred an interest in the property to Englert, Geisler executed a forgery affidavit that Walker prepared in which she swore that the Englert Deed did not bear her signature.”
Walker then represented Kemp in suing Englert, and later filed an amended complaint adding Geisler as a defendant, alleging that “she had breached her contract with Kemp and committed fraud in the closing affidavit she executed.” Geisler moved to disqualify Walker from representing Kemp in the suit. The trial court entered an order disqualifying Walker. Kemp appealed.
The Fifth DCA affirmed. The trial court grounded its order on two bases. The first was that Walker likely would be a material witness at trial, and in doing so would violate Rule 4-3.7. With certain exceptions not applicable here, Rule 4-3.7(a) provides that a lawyer “shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client.” The appeals court concluded that the trial court abused its discretion in disqualifying Walker based on Rule 4-3.7. Under the facts, Walker was not a “necessary witness.” No one questioned the authenticity of the relevant documents. “The critical issue is whether Geisler signed and delivered the Englert Deed or whether her signature on that deed was forged. Nobody has suggested that Walker has any first-hand knowledge about the authenticity of the Englert Deed. Furthermore, Kemp has taken the position that it will not call Walker as a witness at trial.” (In a footnote, the court pointed out that the rule is not intended to allow a party to disqualify its opponent’s lawyer by calling the lawyer as a witness.)
But the Fifth DCA upheld the disqualification based on the second ground in the order, which was that “Walker had a potential conflict of interest when he was the attorney suing Geisler with regard to the subject matter of whether the Englert Deed was legitimate or forged.” Geisler alleged that she believed Walker was representing her when she was invited to come to Walker’s office. There “she consulted with him regarding the legal ramifications that might exist if the Englert Deed was legitimate, Walker prepared the forgery affidavit, and advised her that he was going to sue Englert. Geisler claims that Walker told her that he would take care of everything for her.”
Even though Geisler recognized that she had no attorney-client relationship with Walker concerning the closing, the court agreed that “Geisler’s subjective belief that Walker represented her with regard to the forgery issues surrounding the Englert Deed was reasonable, which defines whether such a relationship existed.” (The test in Florida for whether an attorney-client relationship exists “‘is a subjective one and hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.’ This subjective belief must be reasonable.” (Citations omitted.))
In the court’s view, it was apparent that “Walker’s actions on behalf of Kemp in which he sues Geisler claiming breach of contract and fraud are adverse and are substantially related to their consultation regarding the Englert Deed.” Accordingly, Walker’s disqualification was warranted. Kemp Investments North, LLC v. Englert, __ So.3d __ (Fla. 5th DCA, No. 5D20-1553, 3/26/2021), 2021 WL 1148834.
Second DCA concludes that insured’s public adjuster cannot be “disinterested appraiser” under insurance policy’s appraisal process. [Added 2/22/21]
Insured hired a public adjusting company (“KCC”) to represent his interests in pursuing a claim against his homeowners insurance company (“Insurer”). KCC was to receive 10% of all insurance proceeds received by Insured. KCC invoked the policy’s appraisal process and appointed KCC’s president, Keys, as Insured’s “disinterested appraiser.” Insurer objected and pursued relief in circuit court. Ultimately an order denying Insurer’s petition was entered. Insurer appealed.
The Second DCA reversed. The insurance policy did not define “disinterested,” so the appeals court undertook to ascertain the plain meaning of the term. “Here, the term ‘interested’ is an adjective describing an appraiser who holds an interest—that is, a stake of some sort, whether pecuniary, proprietary, or personal – in the outcome of the appraisal process. The prefix ‘dis’ connotes its negative – so ‘disinterested’ means an appraiser who does not hold an interest in the outcome of the policy’s appraisal process.” The court pointed out that “a contingency stake in a potential monetary award” that is the outcome of the appraisal process is a pecuniary “interest.”
The court concluded that Keys, who was appointed by Insured, was not a “disinterested appraiser” because his firm had a vested interest in obtaining the highest possible recovery because its compensation would be a percentage of that recovery. As the court stated, “[t]he e bigger the award, the bigger the payment. It is that link between payment and award that makes the contingency-paid appraiser prohibitively interested in the outcome of the appraisal process, which is a condition the policy expressly prohibits.”
Further, “Besides the interest KCC and Mr. Keys hold through KCC’s ten percent stake in the appraisal award, there is also the separate, broader, and glaringly apparent interest they have in the appraisal process by virtue of the fact that KCC is representing [Insured] in the underlying dispute (emphasis by court).
The appeals court certified conflict with the Third DCA’s case of Brickell Harbour Condo. Ass’n v. Hamilton Specialty Ins. Co., 256 So.3d 245 (Fla. 3d DCA 2018) “to the extent it holds that a public adjuster who has a contingency interest in an insured’s appraisal award or represents an insured in an appraisal process can serve as a ‘disinterested appraiser’ under a policy's appraisal provision.” State Farm Florida Ins. Co. v. Parrish, __ So.3d __ (Fla. 2d DCA, No. 2D19-130, 1/6/2021), 2021 WL 45659.
Court erred disqualifying Legal Aid from representing party in a paternity action, noting that movant had been “prospective client” of Legal Aid but concluding that movant waived right to disqualification by waiting 14 months to seek it. [Added 10/26/20]
Putative father D.D.C. applied to be represented by Legal Aid concerning a paternity matter in June 2016. He filed a financial disclosure form and spoke with an intake clerk, but not a lawyer. His application was denied due to his income level.
A year later L.E.B. contacted Legal Aid about representing her in a paternity matter involving D.D.C. Legal Aid took her case and filed a petition against D.D.C. At the beginning of trial in September 2018, D.D.C. orally moved to disqualify Legal Aid based on his earlier consultation with their office about the same case. L.E.B.’s Legal Aid lawyer argued against disqualification on three grounds: “the motion to disqualify was untimely since the case had been pending for over a year when the motion was made; (2) D.D.C. had never been a ‘client’ of Legal Aid and did not qualify as a ‘prospective client,’ so Legal Aid had no conflict of interest; and (3) D.D.C. would not be prejudiced by denial of the motion because Legal Aid did not have any information that could be used to his disadvantage.” The Legal Aid lawyer could not explain why the conflict was not identified when L.E.B. sought representation.
The magistrate issued a report concluding that D.D.C. had been a “prospective client” of Legal Aid and that “therefore Legal Aid was barred from representing L.E.B. in the same legal matter.” After conducting a hearing, the trial court adopted the magistrate’s report and ordered Legal Aid disqualified from representing L.E.B. L.E.B. appealed.
The Second DCA reversed. Although L.E.B. raised 4 grounds in her appeal, the appeals court ruled that one, D.D.C.’s waiver, was dispositive. “The law is clear that a litigant can waive the right to seek disqualification of an opponent's attorney by a delay in seeking to enforce the right.” The court pointed out that “D.D.C. was aware of the fact that L.E.B. was represented by Legal Aid from the inception of the case in July 2017. He was also aware that he had previously sought assistance from Legal Aid on the same matter a year earlier. Nevertheless, he did not move to disqualify Legal Aid until the start of trial fourteen months after the case began.” The court rejected D.D.C.’s argument that his delay was justified because he was proceeding pro se. “His status as a pro se litigant does not afford him rights over and above those afforded to represented litigants.”
In a footnote, the Second DCA also noted that Legal Aid’s claim that D.D.C. was not a “prospective client” under Rule 4-1.18 was “not well taken.” Under Rule 4-1.18(a), a person who consults with counsel about possibly forming a lawyer-client relationship is a “prospective client.” Rule 4-1.18(b) bars a lawyer who got information from a prospective client from using that information to the prospective client’s disadvantage even “no lawyer-client relationship ensues” and, under case law, “even where the person receiving the information from the prospective client is not an attorney.” (Citations omitted.) D.D.C. was a “prospective client.” The court further referenced Florida Ethics Opinion 922-1, in which the Professional Ethics Committee concluded that “a Legal Aid Society may represent one of two opposing parties who both seek representation only if ‘each prospective client provide[d] an informed consent acknowledging that certain limited information given in the intake interview will not be treated as confidential for purposes of enabling the Society to screen for conflicts or to make referrals.’” Consequently, the Second DCA suggested “that Legal Aid review Florida Bar Ethics Opinion 92-1 to ensure that its intake procedures comply with its ethical obligations.” L.E.B. v. D.D.C., __ So.3d __ (Fla. 2d DCA, No. 2D19-4372, 9/25/2020), 2020 WL 5739030.
On rehearing, Third DCA concludes trial court did not depart from essential requirements of law in ruling that insureds’ public adjuster could be “disinterested” appraiser under policy’s appraisal process. [Added 6/1/20]
Insureds hired a public adjuster, Debernardi, to help them with an insured loss. Debernardi “inspected the property, reported the insurance claim to State Farm [Insurer], and prepared the $88,536.41 estimate that is the subject of the dispute between State Farm and the insureds.” He did so for a 10% contingent fee.
Insureds filed suit against Insurer for breach of contract. Insurer invoked the appraisal process in the policy. Insureds appointed Debernardi as their “disinterested” appraiser. Insurer challenged this, arguing that Debernardi “was not ‘disinterested’ because of his agent/principal relationship with the insureds, his contingency fee, and his prior estimate of damages.” (Footnote omitted.) The trial court disagreed based on prior Third DCA case law, Rios v. Tri-State Ins. Co., 714 So.2d 547 (Fla. 3d DCA 1998) and Galvis v. Allstate Ins. Co., 721 So.2d 421 (Fla. 3d DCA 1998). Insurer petitioned the Third DCA for a writ of certiorari.
On rehearing, the Third DCA denied the petition. It expressed concern about the continued viability of Rios and Galvis, but concluded that the trial court did not depart from the essential requirements of law in following those cases. “Because this issue was presented to this Court by a petition for writ of certiorari, our scope and standard of review is significantly narrowed, foreclosing our authority to address the continued vitality of Rios and Galvis. It is possible that our decision might be different had the question before us been presented by way of a plenary appeal, as was the case in our sibling court’s decision in State Farm Florida Ins. Co. v. Valenti, 285 So.3d 958 (Fla. 4th DCA 2019).”
The court noted that Rios and Galvis conflict with decisions of the Fourth and Fifth DCAs, and certified this question to the Supreme Court as one of great public importance: “Can a fiduciary, such as a public adjuster or appraiser who is in a contractual agent-principal relationship with the insureds and who receives a contingency fee from the appraisal award, be a disinterested appraiser as a matter of law?” State Farm Florida Ins. Co. v. Sanders, __ So.3d __ (Fla. 3d DCA, No. 3D19-927, 4/15/2020), 2020 WL 1870776.
Lawyer disqualified due to prior representation in substantially related matter, per Third DCA. [Added 11/21/19]
Aracena owned and Menadier managed a corporation (“AGL”) that sold aircraft parts. Lawyer Kolski was hired by Menadier to perform some legal work for AGL. Kolski’s sole contact at AGL was Menadier. Kolski did not have a written retainer agreement with AGL. Kolski’s work for AGL ceased when Menadier left AGL.
While working for AGL Menadier formed a corporation (“Menadier’s Corporation”). Menadier claimed that Aracena agreed orally to give Menadier a 50% interest in AGL. The parties scheduled a meeting to discuss the matter. Menadier asked Kolski to draft a term sheet in preparation for the meeting. The term sheet “set forth the current ownership interest of the corporate entities and individuals involved in the deal, but left items to be resolved at the meeting.” Kolski billed Menadier’s Corporation for the work. Menadier sent the bill to AGL (allegedly inadvertently), and AGL paid it.
At the meeting the parties did not reach an agreement, and Aracena fired Menadier. Menadier and Menadier’s Corporation then filed suit, alleging breach of the alleged oral agreement by Aracena and unjust enrichment on the part of AGL. Kolski represented the plaintiffs.
Defendants moved to disqualify Kolski. The trial court denied the disqualification motion. Plaintiffs then petitioned the Third DCA for a writ of certiorari.
The Third DCA granted the petition and determined that Kolski should be disqualified. The court relied on Rule 4-1.9(a), which prohibits a lawyer from opposing a former client in a matter that is “substantially related” to the matter on which the lawyer had represented the former client. Per the Comment to Rule 4-1.9, matters are substantially related “if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work the lawyer performed for the former client.” The court concluded: “Because Kolski’s prior work for AGL in drawing up the term sheet for the transfer is substantially related to the current lawsuit over the failure to consummate the transfer, Kolski is disqualified from suing his past client, AGL. See [State Farm Mut. Auto Ins. Co. v.] K.A.W., 575 So. 2d  at 633 [(Fla. 1991)]; Chessler [v. All Am. Semiconductor], 225 So. 3d  at 852 [(Fla. 3d DCA 2016)]; Junger [Utility & Paving Co. v. Myers], 578 So. 2d  at 1119 [(Fla. 1st DCA 1989)].”
Note: The court’s opinion did not address the question of whether Kolski may have been representing Menadier or Menadier’s Corporation in preparing the term sheet. See Rule 4-1.8(f), regarding payment of legal fees by third parties. Blamey v. Menadier, __ So.3d __ (Fla. 3d DCA, No. 3D19-849, 11/6/2019) (on rehearing), 2019 WL 5781772.
Court erred in not granting criminal defense lawyer’s motion to withdraw based on personal interest conflict. [Added 7/24/19]
Lawyer was representing Criminal Defendant, who was charged with crimes arising from the theft of money from her employer. During the trial, Lawyer moved to withdraw, telling the court that an attorney representing Defendant’s employer had threatened to sue him and file a Bar complaint because the fee Defendant paid him allegedly was stolen from the employer. Lawyer explained that he felt victimized by his client and that his ability to advocate for Defendant had been compromised “because he had to argue to the jury that [Defendant] did not do the things she was accused of when he knew in fact she had.” The trial court denied the motion, likening the situation to a client’s failure to honor a fee agreement. Lawyer renewed his motion to withdraw at the end of the State’s case. The court again denied the motion.
Defendant was convicted. She appealed, arguing that the trial court erred in failing to grant Lawyer’s motion to withdraw. The Fourth DCA agreed and reversed.
The Sixth Amendment gives a criminal defendant the right to be represented by a counsel who is free of ethical conflicts. The appeals court quoted from Rule 4-1.7(a)(2) and its Comment in concluding that Lawyer labored under an actual conflict of interest, as his own personal interest placed him in a position of conflict with his client’s interest. “Defense counsel told the court that his ability to zealously advocate for appellant was compromised because his arguments to the jury were inconsistent with the knowledge he gained. Defense counsel further expressed deep concern that “this [situation] subject[ed his] law firm to a lawsuit, [or] a bar complaint,” even if it turned out that the current employer’s claim had no merit.” The conflict “went beyond the mere possibility of nonpayment,” and the error in denying the motion to withdraw was not harmless. Delacruz v. State, __ So.3d __ (Fla. 4th DCA, No. 4D17-2103, 7/3/2019), 2019 WL 2850180.
Court abused discretion in disqualifying lawyer in postjudgment matter following dissolution of marriage. [Added 7/16/19]
After their divorce, the former wife (“Wife”) filed 3 postjudgment motions. Lawyer filed a notice of appearance for the former husband (“Husband”). Lawyer had known Husband since his birth and met Wife while she was dating Husband. Over the years Lawyer had represented Husband in a personal injury case, gave legal advice to both parties on matters, and represented Wife in a “family-related dispute regarding a debt owed to her by her sister and brother-in-law.”
Wife moved to disqualify Lawyer. Her motion was based on Rule 4-1.9, the former client conflict of interest rule. She alleged that Lawyer had “confidential information about the parties’ finances” and noted that Lawyer had been listed as a trial witness for Husband. Lawyer responded by asserting that he had obtained no confidential information about any matter involving the marriage and pointing out that he did not testify at trial.
At the hearing on the disqualification motion, Wife “admitted that she had made a complete disclosure of her personal finances during the dissolution proceeding.” The trial court granted the motion to disqualify Lawyer, citing to Rule 4-1.7 (current client conflict rule) in its order but not mentioning Rule 4-1.9.
Husband petitioned for certiorari review. The Third DCA quashed the disqualification order as an abuse of discretion.
The standard for determining whether disqualification is warranted is provided by the Rules of Professional Conduct, in this case primarily by Rule 4-1.9. Lawyer did not violate Rule 4-1.9(a), which prohibits a lawyer from representing a new client whose interests are adverse to those of the former client in the same matter in which he represented the former client or in a matter that is substantially related. “The matter in which [Lawyer] is now adverse to the former wife is not ‘the same or substantially related to’ the matter in which [Lawyer] previously represented her. [Lawyer] previously represented the former wife in a family-related dispute regarding a debt problem that she had with her sister and brother-in-law. The former wife testified that the extent of [Lawyer’s] representation in this matter was sending one demand letter on her behalf. [Lawyer’s] representation of the former wife is ‘wholly distinct" from the postdissolution proceeding against the former husband. See Comment to [Rule] 4-1.9 (‘[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.’). Thus, the fact that [Lawyer] represented her in the family-related dispute does not preclude him from representing the former husband in the ‘wholly distinct’ postdissolution proceeding.”
Rules 4-1.9(b) and (c) further provide that, even if the new matter is not “substantially related” to the matter on which the lawyer had represented the former client, a lawyer must not use or reveal confidential information about the former client – with an exception for confidential information that has become “generally known.” Lawyer did not violate these rules. “[T]he the testimony of the former wife reveals that any confidential information that [Lawyer] obtained about her finances had become generally known when she made a full financial disclosure in the divorce case; therefore, no conflict of interest exists. See [Rule] 4-1.9(b) (stating that a lawyer who has formerly represented a client in a matter shall not thereafter ‘use information relating to the representation to the disadvantage of the former client except . . . when the information has become generally known’); see also Comment to [Rule] 4-1.9 (‘[T]he fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.’).”
Finally, the fact that Lawyer had been listed as a trial witness was not relevant to the disqualification issue before the trial court. Lawyer was not a “necessary” witness for Husband as that term is used in Rule 4-3.7 (lawyer as witness rule). Further, even testifying at trial does not disqualify a lawyer from representing the client in pre-trial or post-trial matters. (Citations omitted.) Goff v. Goff, __ So.3d __ (Fla. 2d DCA, No. 2D18-3163, 6/26/2019), 2019 WL 2607258.
First DCA declines to disturb order disqualifying lawyer because trial court “did not disregard any clearly established principle of law.” [Added 9/26/18]
Lawyer Lima had worked for a law firm that represented tobacco company Philip Morris. Lima left that firm to join the Ferraro Firm, which represented plaintiff Russ in a case against Philip Morris and another tobacco company. Defendants moved to disqualify the Ferraro Firm based on Lima’s alleged side-switching and possession of confidential information.
A hearing on Defendants’ disqualification motion in Russ’s case was held about a year later. In the interim, the Fourth DCA ruled that the Ferraro Firm should be disqualified from opposing Defendants in another tobacco case. Philip Morris v. Caro, 207 So.3d 944 (Fla. 4th DCA 2016). When Caro was decided – and 4 days before the hearing in Russ’s case – Lima’s employment with the Ferraro Firm was terminated. Russ argued that Lima’s departure cured any conflict in her case. Defendants argued the Lima’s departure was “too little, too late” and did not cure the conflict. The trial court agreed and granted the disqualification motion.
Russ petitioned the First DCA for a writ of certiorari. The appellate court denied the petition, noting that “[t]he issue of the [Ferraro] firm’s disqualification is complicated, and it does not turn on any clearly established legal principles.” Compare two cases involving Lima and the Ferraro Firm: Canta v. Philip Morris USA, Inc., 43 Fla. L. Weekly D55 (Fla. 3d DCA Dec. 27, 2017) (requiring disqualification); and Balaban v. Philip Morris USA Inc., 240 So. 3d 896, 900 (Fla. 4th DCA 2018) (on rehearing) (disqualification not necessarily required once conflicted lawyer leaves firm). “And in Caro itself, the court noted that ‘the same or similar issues on disqualification have been brought before other circuit and district courts with varying results.’ 207 So. 3d at 950. As these cases illustrate, there is not yet any clearly established principle of law that would have compelled the trial court to deny the disqualification motion. Accordingly, certiorari relief is unavailable.” Russ v. Philip Morris USA, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D17-1847, 9/5/2018), 2018 WL 4211788.
Lawyer who was material witness to events underlying indirect criminal contempt proceedings may not assist court as prosecutor in those proceedings. [Added 8/20/18]
After contentious discovery litigation, including a midnight deposition that was suspended by Lawyer before it began due to the refusal of the deponent’s counsel to turn over a particular powerpoint presentation, Lawyer filed a motion for order to show cause why the opposing party should not be sanctioned for violating a discovery order. The trial court ordered Lawyer to prepare an order to show cause, and appointed him to prosecute the criminal contempt proceeding.
The trial judge entered a proposed order to show against a witness and opposing counsel that was prepared by Lawyer. Lawyer was named as the prosecutor for the proceedings on that show cause order as well. At that point the opposing party moved to disqualify the trial judge, and that motion was granted. A successor judge took over. The opposing party moved to disqualify Lawyer as a material witness to some of the underlying facts and someone who was “personally invested in the outcome of the proceedings.” The motion to disqualify Lawyer was denied.
Opposing counsel filed petitions for prohibition with the Third DCA. The appeals court determined that prohibition was available as a remedy and concluded there was no basis on which to hold opposing counsel in indirect criminal contempt.
Although not necessary to its decision, the court commented on the question of whether it would be appropriate to disqualify Lawyer as the special prosecutor due to “the paucity of case law on this discrete issue . . . as to whether a lawyer, who is also a material witness in an indirect criminal contempt proceeding, may also serve as the special prosecutor in the proceeding.”
The court concluded: “We believe Rule Regulating the Florida Bar 4-3.7’s general prohibition against a lawyer acting as an advocate at a trial in which the lawyer will be a witness will, under ordinary circumstances, prevent a lawyer who is a material witness to events forming the very core of an indirect criminal contempt proceeding from also assisting the trial court as the prosecutor in those same proceedings. Further, because Florida’s courts have consistently held that prohibition is an appropriate remedy to prevent a contempt hearing from proceeding before a judge who should be disqualified, we similarly conclude that prohibition will lie to prevent a lawyer who is a material witness to events forming the core of an indirect criminal contempt proceeding from also serving as the prosecutor in those same proceedings.” Hudson v. Marin, __ So.3d __( Fla. 3d DCA, Nos. 3D17-2754, 3D17-2755, 8/15/2018), 2018 WL 3862893.
Rejecting recommended 91-day suspension, Supreme Court imposes 3-year suspension for multiple rules violations including fee contract modifications that did not comply with rule governing business transactions with clients. [Added 7/6/18]
Lawyer represented Clients (Husband and Wife) in a number of their business and personal matters. Lawyer and Clients ultimately had a falling out and Clients filed complaints with the Bar. The Bar charged Lawyer with rules violations connected with 3 of Clients’ cases. The referee found Lawyer had violated multiple rules and recommended a 91-day suspension. The Supreme Court issued an order to show cause why a more severe sanction was not warranted. The Court thereafter approved the guilty findings and suspended Lawyer for 3 years.
Among other things, in one case Lawyer withdrew and filed a charging lien, claiming that he had represented Clients on an hourly fee basis. Instead, the magistrate judge found that Lawyer filed documents in another case indicating that he was working on a contingent fee. The magistrate’s findings noted that Lawyer would not be entitled to a fee if he voluntarily withdrew from a contingent fee case and found that Lawyer’s “obstructive behavior,” not Clients’ conduct, resulted in his withdrawal.
In another case, Lawyer represented Clients in a dispute with a swimming pool contractor. Lawyer was found guilty of failing to take action on the case for two years, resulting in dismissal of the case for lack of prosecution. Lawyer argued unsuccessfully that Husband had told Lawyer to focus on other, higher-priority cases and that neither party wanted to move the pool case along. The Supreme Court pointed out that “even if the [Clients] did tell [Lawyer] to focus his attention on higher priority cases, [Lawyer] nonetheless had an ethical obligation to both his clients and the legal system to ensure that the case was moving forward.”
In the biggest case, Lawyer represented Clients in a dispute over interference with intellectual property rights brought by Clients. The defendant had allegedly interfered with Clients’ intellectual property rights in the Bronco cigarette brand. Lawyer’s fee agreement was modified several times during the course of the matter. Lawyer had Clients sign a “Retainer Agreement Addendum” giving Lawyer a percentage of “any recovery from any source” in the case, which would include not only a monetary recovery but “any assets transferred to [the clients] in settlement or through trial (such as a transfer of the Bronco brand to you).” The referee in the disciplinary case found that Lawyer had “gained a pecuniary interest which could be adverse” to Clients and did not advise them in writing to seek independent counsel regarding this issue. Further, Lawyer’s former paralegal testified, and the referee found, that Lawyer had intentionally tried to create conflicts of interest that would suffice as “good cause” for withdrawal in order to preserve his right to a contingent fee.
Rule 4-1.8(a) prohibits a lawyer from “entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to a client” unless certain specific requirements are followed, including advising the client in writing to seek advice of independent counsel regarding the transaction. Lawyer argued that the fee agreements and addendum did not trigger Rule 4-1.8(a), but the referee found otherwise – as did the Supreme Court. Lawyer’s contingent fee agreement provided that his 15% fee would be calculated on Clients’ total recovery, including both monetary and non-monetary assets. This took the agreement outside of the “ordinary fee agreements” that are not subject to Rule 4-1.8(a) according to the Rule’s Comment.
The Court summarized: “[A]s the facts in this case demonstrate, when a client’s recovery includes some form of non-monetary recovery with no precise or set value, it may be harder to determine how the lawyer’s fee will be calculated and paid. Contingency fee agreements where a lawyer receives some percentage of the value of a non-monetary asset, like property or intellectual property rights, have a greater potential to result in a lawyer’s interests becoming adverse to those of the client. Accordingly, we conclude that such agreements fall within Bar Rule 4-1.8(a), such that the lawyer is required to ensure that the transaction is fully disclosed and fair to the client, and the client is given the opportunity to seek independent legal advice.”
Turning to the appropriate discipline, the Court again noted that it has “moved towards imposing harsher sanctions.” In view of the “extensive rule violations,” the number of aggravating factors, the relative lack of mitigating factors, and the “relevant case law,” the Court suspended Lawyer for 3 years. Florida Bar v. Petersen, __ So.3d __ (Fla., No. SC14-1942, 7/5/2018), 2018 WL 3301476.
Supreme Court suspends lawyer for 3 years instead of recommended 1 year for violating business transaction with clients rule, charging prohibited fees, attempting to assume co-equal decision making authority with client, providing indirect financial assistance to client, and taking interest in subject matter of litigation. [Added 5/16/18]
Lawyer was charged by the Bar with ethical violations. The case was tried before a referee, who found Lawyer guilty of violating multiple rules and recommended a 1-year suspension. The Supreme Court agreed with the guilty findings but rejected the proposed discipline and instead suspended Lawyer for 3 years.
In one count, Lawyer represented Bergaoui. They entered a written agreement providing that the client’s Lamborghini automobile would be used as security for Lawyer’s fees. A written agreement gave Lawyer’s firm a security interest in the car for $30,000 and also provided that, if Bergaoui did not sell the car and pay the fees in 30 days, Lawyer’s firm would have the right “to market and sell the vehicle and give Bergaoui a credit for current and future legal fees in the amount of the sale or in the amount of $80,000, at the firm’s discretion.” This agreement did not comply with the requirements of Rule 4-1.8(a) (business transactions with clients). It also violated Rule 4-1.5(a) (prohibited or excessive fees) and Rule 3-4.3 (acts unlawful or contrary to honesty and justice).
The Court stated that a fee agreement that violates Rule 4-1.8(a) provides for a “prohibited fee” because “the agreement itself violated the rule.” Although an ordinary fee agreement does not trigger Rule 4-1.8(a), the agreement in this case was not an “ordinary” fee agreement because it allowed Lawyer’s firm to make a forced sale of Bergaoui’s car and “unfairly afforded [Lawyer]’s firm the potential to obtain funds from the sale of the client’s Lamborghini in an indeterminate amount that would constitute an excessive fee.”
In another count, Lawyer represented Spruce River Ventures in litigation seeking specific performance against several defendants on a contract to buy 7 parcels of real property. The Bar charged Lawyer with “failing to respond to a death notice filed in the case, loaning money to several of the defendants in order to fund the payment of back taxes, accepting a mortgage on several parcels to secure the loan, and negotiating a potential settlement agreement which created a new entity in which Parrish would be a part owner.”
After being notified that one of the defendants had died, Lawyer waited more than a year to attempt to substitute another party. This conduct violated Rules 4-1.1 (competence) and 4-1.3 (diligence). Lawyer also agreed to loan money to the defendants in order to allow them to pay back taxes on the property, in return taking a mortgage on property at issue in the case. He also had his client, which was purportedly represented by “independent” counsel, sign a subordination agreement. This conduct violated Rule 4-1.8(e) (prohibited financial assistance to clients). In the Court’s view the fact that the money was not loaned directly to Lawyer’s clients was immaterial, because “the rule is broader than that, in that it prohibits ‘financial assistance,’ which may take many forms.”
Lawyer’s conduct also violated Rule 4-1.8(a) because he did not provide the required written disclosures to his client, and the client’s “independent” counsel was arranged for by Lawyer and was not truly independent. Lawyer violated Rule 4-1.8(i) by taking a proprietary interest in the subject matter of the litigation. The Court rejected Lawyer’s argument that a security interest was not a “proprietary” interest: “We reject [Lawyer]’s narrow reading of Bar Rule 4-1.8(i). Rather, we conclude that the rule is intended to prohibit a lawyer generally from acquiring other types of interests in the subject matter of the litigation; otherwise, the express exceptions for liens and contingency fees would be unnecessary.”
Finally, Lawyer violated Rule 4-1.2(a) by attempting proposing a settlement agreement under which a new entity would be created that would be owned by Lawyer’s firm, his client, and several of the defendants. This proposed agreement was improper because it “would have given [Lawyer] co-equal decision-making authority with his client in directing litigation strategy.” Florida Bar v. Parrish, __ So.3d __ (Fla., No. SC15-1988, 5/3/2018), 2018 WL 2049999.
On rehearing, Fourth DCA quashes an order disqualifying a law firm that employed a lawyer who previously represented its client’s opponent but left the firm while the disqualification motion was pending. [Added 4/20/18]
Plaintiff retained The Ferraro Law Firm to represent her in an Engle-progeny tobacco case against Philip Morris USA, Inc. (“PM USA”) and R.J. Reynolds Tobacco Co. (“RJR”). Lawyer Lima worked for the Ferraro firm.
PM USA moved to disqualify the Ferraro firm and lawyer Lima. Before joining the Ferraro firm, Lima worked for a law firm that represented PM USA. It was alleged that, while at his former firm, Lima billed more than 1500 hours to PM USA, including more than 1300 hours defending PM USA in smoking and health litigation and 375 hours specifically on Engle-progeny cases. PM USA (joined by RJF) asserted that Lima and the Ferraro firm were precluded on conflict of interest grounds from continuing in the case.
The trial court granted the motion to disqualify, relying on Rule 4-1.10(b) and Philip Morris USA Inc. v. Caro, 207 So.3d 944 (Fla. 4th DCA 2016). Caro also involved Lima and the Ferraro firm. The Caro court had concluded that the past and current matters on which Lima worked were substantially related, finding a violation of Rule 4-1.9(a). Lima’s disqualification was imputed to the Ferraro firm under Rule 4-1.10(a).
In the instant case, however, Lima left the Ferraro firm while the disqualification motion was pending but before it was heard. This distinguished the case from Caro, and meant that the governing ethical standard was Rule 4-1.10(c) rather than 4-1.10(b). Under Rule 4-1.10(c), after a conflicted lawyer terminates an association with a firm, the firm is not disqualified unless a lawyer remaining in the firm has actual knowledge of material, confidential information about the conflicted lawyer’s former client and the 2 matters are substantially related. Plaintiff “contended that the Ferraro firm could not be disqualified under this Rule unless the firm had PM USA’s or RJR’s confidential, material information. She presented deposition testimony and affidavits stating that no confidential information from Attorney Lima’s previous work [representing PM USA] had been provided to any lawyer or other employee of the Ferraro firm.”
The Fourth DCA quashed the disqualification order and remanded the matter. The appeals court outlined a 2-step procedure for the trial court to use on remand.
Caro, standing alone, was not dispositive “because that case involved a request to disqualify an attorney still employed at the firm. Since Attorney Lima is no longer employed at the Ferraro firm, we need not decide whether the findings made by the trial court in Caro apply here to impose per se disqualification of the law firm under Rule 4-1.9.”
Instead, “[a]n evidentiary hearing is required in this case to examine the matters dealt with by Attorney Lima during his tenure at the Ferraro firm and the depth of his involvement. Disqualification of the Ferraro firm under Rule 4-1.10(b) would be appropriate should the trial court find that Attorney Lima had significant involvement with Engle-progeny litigation/appeals while with the Ferraro firm and that he remained employed by the firm once it knew or should have known of the potential for disqualification.” If, on the other hand, Lima “had little or no involvement with the matter or matters that created the conflict, had little contact with other firm attorneys working on them, and was then terminated shortly after the conflict came to the attention of the firm, Rule 4-1.10(b), standing alone, would not require the firm’s disqualification from the ongoing case. See Nissan Motor Corp. in U.S.A. v. Orozco, 595 So. 2d 240, 241 (Fla. 4th DCA 1992) . . . If the trial court on remand determines that the instant case is similar to Nissan and that Attorney Lima had little involvement with tobacco litigation beyond defending against disqualification motions during his tenure at the Ferraro firm, then the trial court must turn its attention to Rule 4-1.10(c) and make the appropriate inquiry and factual findings under that portion of the Rule.” (Emphasis by court.) Balaban v. Philip Morris USA Inc., __ So.3d __ (Fla. 4th DCA, No. 4D17-2479, 4/18/2018), 2018 WL _______ (on rehearing).
[NOTE: Compare this case with Canta v. Philip Morris USA, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-1959, 12/27/2017), 2017 WL 6598577 (disqualification ordered where conflicted lawyer left firm after motion was filed).]
Court erred in disqualifying party’s lawyer based on unsworn pleadings with no evidentiary hearing, and in not limiting any disqualification to trial representation. [Added 2/28/18]
In 2010 Wife moved to disqualify Husband’s lawyer from a divorce case, claiming that the lawyer had drafted the parties’ prenuptial agreement, would be a necessary witness (Rule 4-3.7(a)), and as a result of testifying would have a personal interest conflict with his client (Rule 4-1.7(a)(2)). The allegations were made in unsworn pleadings. The matter was not pursued for 7 years, while Wife changed counsel. The court granted the motion after a holding at which no evidence was presented.
The Second DCA quashed the disqualification order. The appellate court noted that Wife’s pleadings were unsworn, with no affidavits attached, and no evidence was introduced at the hearing on the motion. Wife “presented no evidence as to how the Husband’s attorney’s testimony will support her claims or how it will be in conflict with his client's interests.” The court also noted that “Husband does not intend to call his attorney as a witness; rather, it is the Wife who intends to call the Husband's attorney as a witness.” (The court cited cases indicating that disqualification is not automatically granted when an opposing party calls the lawyer to testify, although a disqualifying conflict could arise if the lawyer’s testimony is adverse to the client’s position.)
The court concluded that the trial court “departed from the essential requirements of law by relying on an unsworn motion, unsworn allegations, and counsel’s argument as its only basis for the entry of an order of disqualification” and “also departed from the essential requirements of law by disqualifying counsel without limiting the order to the trial, if one is held. Rule 4-3.7 specifically refers to trial, and a trial court departs from the requirements of law where it fails to narrow the disqualification to only the necessary proceedings.” (Citations omitted.) Furman v. Furman, __ So.3d __ (Fla. 2d DCA, No. 2D17-2239, 1/5/2018), 2018 WL 300890.
Third DCA disqualifies law firm that had employed lawyer who previously represented its client’s opponent, despite firm’s termination of conflicted lawyer. [Added 1/30/18]
Plaintiffs retained The Ferraro Law Firm (“Ferraro Firm”) to represent them in an Engle-progeny tobacco case against defendants Philip Morris USA, Inc. (“PM”) and R.J. Reynolds Tobacco Co. (“RJR”). Suit was filed in 2007. In 2015 the Ferraro Firm hired lawyer Lima, who had previously been employed by a law firm that represented PM. During his 10 years at that firm, Lima billed more than 1500 hours to PM, including 375 hours Engle-progeny cases. Upon joining the Ferraro Firm, Lima immediately began working on Engle cases, including Plaintiffs’ case.
In March 2016 PM and RJR began filing motions to disqualify Lima and the Ferraro Firm from Engle cases throughout Florida. It was alleged that, while at his former firm, Lima had access to PM’s litigation databases and internal confidential and privileged documents.
Early motions were denied, but then courts began granting disqualification. One of the disqualification orders was upheld by the Fourth DCA in Philip Morris USA Inc. v. Caro, 207 So.3d 944 (Fla. 4th DCA 2016). In Caro, the court concluded that the past and current matters on which Lima worked were substantially related, thus finding a violation of Rule 4-1.9(a). His disqualification was imputed to the Ferraro Firm pursuant to Rule 4-1.10(a).
In March 2017 PM, relying on Caro and other authorities, filed a motion to disqualify Lima and the Ferraro Firm from the instant case. The next day the Ferraro Firm terminated Lima’s employment. The Firm argued that disqualification was not warranted, stating that no lawyer remaining in the Ferraro Firm had any confidential information of PM or RJR. The Ferraro Firm argued that any imputed disqualification of the Firm ended upon Lima’s departure, contending that Rule 4-1.10(c) applied and did not require disqualification. The trial court disagreed and disqualified the Firm.
The Third DCA upheld the disqualification, concluding that the Firm’s imputed disqualification was not cured by Lima’s dissociation. It noted that “[n]either Rule 4-1.10 nor any reported Florida appellate opinion addresses that particular ‘midstream’ sequence of events.” (Footnote omitted.)
The court stated: “Rule 4-1.10(c), relied upon by the [Plaintiffs] and the Ferraro Firm, addresses a scenario in which a lawyer formerly associated with a law firm leaves the firm and ‘thereafter’ the firm represents ‘a person with interests materially adverse to those of a client represented by the formerly associated lawyer.’ The use of the word ‘thereafter’ may signify a new, post-dissociation representation, but does it apply to a lawsuit filed and prosecuted for a significant time before the dissociation, i.e., while a motion for disqualification would have been well taken?” The court determined that the answer was “no;” the conflict was not “unimputed” by Lima’s termination.
The court rejected the Plaintiffs’ reliance on Nissan Motor Corp. v. Orozco, 595 So.2d 240 (Fla. 4th DCA 1992), and State Farm Mutual Automobile Insurance Co. v. Kugler, 2012 WL 12868733 (S.D. Fla. June 11, 2012), finding them distinguishable. In those cases, the law firms had terminated the conflicted lawyer immediately upon learning of the alleged conflict.
Further, the court cited the Preamble to the Rules of Professional Conduct in discussing the duties of a firm in the position of the Ferraro Firm: “Not only did the Ferraro Firm fail to initiate an inquiry and a screening process when Lima joined the firm in 2015, there is no indication that the firm removed Lima from work on Engle-progeny cases for a year after PM detailed the kinds of client confidences Lima’s work had included before he switched sides. The preamble states that, ‘In order to be effective, screening measures must be implemented as soon as practicable after a lawyer or law firm knows or reasonably should know that there is a need for screening.’”
In sum, the court concluded: “’Unimputing’ a conflict seems as implausible as unringing a bell, unscrambling an omelette, or pushing toothpaste back into the tube.”
The court closed by rejecting the argument that section 124 of the Restatement of the Law Governing Lawyers supported the Ferraro Firm’s position. Canta v. Philip Morris USA, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D17-1959, 12/27/2017). 2017 WL 6598577.
In upholding denial of a motion to disqualify lawyer, Third DCA does not extend duty of loyalty to former clients beyond that expressed in Rule 4-1.9(a). [Added 9/28/17]
In 2008 lawyer Alters represented the Villoldo brothers against the Cuban government. Alters obtained a large judgment, but it “contained defects that made it uncollectable.” The brothers then discharged and retained lawyer Hall to correct the judgment. After the Villoldos hired Hall, Alters hired Hall to represent him in a separate case involving a class action matter over which Alters was being sued.
In 2011, Hall reminded a lawyer in Alters’ firm that it had not filed a charging lien in the Cuba case. It was later found that Hall was not representing the Alters’ firm during that call. The Alters firm promptly filed a lien. Two years later, still representing the Villoldo brothers, Hall opposed the charging lien. Hall was still representing Alters in the class action at that time. Hall withdrew from representing Alters a few months later “because Alters was holding itself out as co-counsel with Hall on the case involving the correction of the Cuba judgment despite having been previously terminated by the Villoldos.”
Shortly thereafter, Alters settled the charging lien dispute with the Villoldos. Hall “did not represent either party in the dispute or the settlement.” Two months later the Villoldos, represented by Hall, sued Alters relating the charging lien settlement.
Alters moved to disqualify Hall and his firm. The trial court denied the motion. Alters petitioned the Third DCA for a writ of certiorari.
The Third DCA upheld the denial of disqualification. It concluded that the trial court properly viewed Hall as Alters’ former client, meaning that Rule 4-1.9 was the governing standard. The court noted that Rule 4-1.9(a) “provides that a lawyer who has formerly represented a client in a matter must not afterwards “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.” The disqualification issue turned on whether Hall’s prior representation of Alters was “substantially related” to the current case. The court concluded that it was not.
After quoting the pertinent portion of the Comment to Rule 4-1.9, the court noted that Alters had admitted that “there is no overlap between the two representations.” Referencing the factors listed in the Comment to Rule 4-1.9, the court stated that the 2 representations “do not involve the same underlying dispute or transaction” and that “Hall will not be required to attack work that he performed for Alters.” The court was of the view that the 2 matters “have absolutely nothing to do with each other.” Accordingly, Rule 4-1.9 “does not preclude Hall from representing the Villoldos in the current matter.”
Alters raised another ground for disqualification, arguing that Brent v. Smathers, 529 So.2d 1267 (Fla. 3d DCA 1988), “expand[ed] the restrictions of Rule 4-1.9 to include a prohibition on bringing suit against a former client when to do so would violate the principle of client loyalty and create an appearance of impropriety.” The appeals court declined to read Brent so broadly. In Brent, a motion based on Rule 4-1.9(a) was filed seeking to disqualify a lawyer who had previously represented someone who was a co-trustee with the lawyer. Despite the fact that the movant co-trustee had no reasonable expectation of confidentiality regarding the lawyer, the court approved the lawyer’s disqualification under Rule 4-1.9(a) because that rule protects not only confidentiality, but loyalty in a case where a lawyer opposes a former client in a substantially related matter.
The Third DCA pointed out that, “[c]ontrary to Alters’s contention, this court’s ruling in Brent did not modify Rule 4-1.9 by adding a new substantive prohibition which requires a lawyer to recuse in a lawsuit against a former client if the representation can be deemed ‘disloyal’ or creates an ‘appearance of impropriety.’ . . . The Brent decision merely explained why the Rules applied even if a client’s reasonable expectation of confidentiality was not at stake.” Alters v. Villoldo, __ So.2d __ (Fla. 3d DCA, No. 3D17-715, 9/6/2017), 2017 WL3880297.
[NOTE: Further explanatinon of the Brent case is found in Florida Legal Malpractice and Attorney Ethics (2017 ed.), co-authored by Tim Chinaris. Citing Brent, the treatise states: “The duty of loyalty exists independently of the duty of confidentiality. Thus, a lawyer may not represent a current client against a former client in a matter substantially related to the one in which the lawyer represented the former client, even if the new representation does not involve the use of any confidential information about or against the former client.” Id., at 417.]
Denial of postconviction counsel’s motion to withdraw did not violate defendant’s right to conflict-free counsel, even though counsel supervised prosecution of prior conviction used as aggravator in present case. [Added 7/26/17]
Defendant was convicted of murder and sentenced to death. In his motion for postconviction relief. He was represented by appointed counsel from Capital Collateral Regional Counsel - South (CCRC). The motion asserted, inter alia, that the postconviction court erred in denying his counsel’s motion to withdraw due to an alleged conflict of interest, thus violating his rights to conflict-free counsel, due process, and equal protection. The motion was denied, and Defendant appealed.
The Florida Supreme Court affirmed. The motion alleged existence of “an irreconcilable conflict” of interest relating to lawyer Dupree, the appointed CCRC for the South District Region. Dupree had been direct supervisor of the prosecutors who signed off on Defendant’s guilty plea in 1984. That conviction was being used as an aggravator in Defendant’s present case. Defendant objected and directed Dupree and CCRC-South to withdraw.
The Court explained: “[Defendant] claims that the postconviction court abused its discretion in denying CCRC’s motion to withdraw because Dupree had an actual conflict of interest based on his role as a supervising attorney in the prior case. However, even if an actual conflict did exist, [Defendant] has failed to demonstrate that the conflict adversely affected Dupree’s representation in postconviction proceedings in this case. . . . [Defendant] claims that ‘the adverse effect is that collateral counsel has not been able to establish a relationship of trust with [Defendant] as a direct result of the conflict.’ However, the Supreme Court has ‘reject[ed] the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel.’ . . . As this Court has explained, ‘General loss of confidence or trust standing alone will not support withdrawal of counsel.’ . . . Moreover, this record does not demonstrate that ‘the attorney-client relationship had deteriorated to the point where counsel could no longer give effective aid in the fair representation of the defense.’ . . . [Defendant] asserts that ‘[i]n the Sixth Amendment context, prejudice to a defendant is presumed based on the affirmative representation by counsel of a conflict.’ However, that is simply not the case.” Braddy v. State, __ So.3d __ (Fla., Nos. SC15-404, SC16-481, 6/15/2017), 2017WL 2590802.
Court erred in disqualifying movant’s opposing counsel because lawyer never actually represented movant nor did he participate in confidential communications with movant. [Added 7/12/17]
OIL and Stamax entered into a contract under which OIL would use Stamax’s trade name to sell Apple products. OIL sued Stamax for breach of contract. Stamax moved to disqualify OIL’s attorney (“Lawyer”) under Rule 4-1.9, claiming that Lawyer had previously represented Stamax through its agent, Lund. At the evidentiary hearing Lund testified that “he could not recall any specific legal advice that [Lawyer] had given him and ‘maybe even they were personal, maybe.’” Lund also testified that he had 2 meetings with Lawyer, but that the principal for OIL was present during all discussions. Lund further testified that the only document disclosed to Lawyer was the OIL-Stamax agreement.
The judge before whom the hearing was held did not issue a ruling, and a new judge took over the case. She offered the parties the chance to present additional evidence, but neither did. The new judge reviewed the transcript of the hearing, found Lund credible, and ordered Lawyer disqualified. Disqualification was based on 2 facts: “First, Lund testified that at the meeting with OIL’s attorney [Lawyer], he discussed general business issues with the attorney. Second, Lund testified that he spoke to OIL’s attorney regarding the Stamax/Apple agreement and may have even provided a copy of the agreement to the attorney.” OIL petitioned for a writ of certiorari.
The Fourth DCA granted the petition, concluding that the facts did not support disqualification. “A discussion in front of a third-party is not entitled to confidentiality.” See F.S. 90.502(1)(c) (communication between lawyer and client considered confidential if it is not intended to be disclosed to third parties). “[T]he entirety of the conversation was conducted in the presence of a principal for OIL.”
The court pointed out that “[t]he same analysis applies to Stamax’s assertion regarding the disclosure of the Stamax/Apple agreement. We agree with OIL that it is likely this agreement would have been discoverable in the course of litigation. However, we need not decide that issue because the voluntary disclosure by Lund to third parties such as OIL stripped it of any confidentiality that it may have had.”
The appellate court concluded: “Therefore, Lund could not have reasonably expected his discussions to be confidential and disqualification is not appropriate when no representation was actually commenced, nor confidential information exchanged.” (Citations omitted.) OIL, LLC v. Stamax Corp., __ So.3d ___ (Fla. 4th DCA, No. 4D17-175, 6/21/2017), 2017 WL 2664686.
Disqualification of lawyer who had consulted with prospective client overturned because court failed to apply Rule 4-1.18. [6/26/17]
A trial court disqualified Lawyer from representing Wife during a family law case. Apparently the disqualification was based on a prospective client consultation that Lawyer had with Husband. Wife petitioned for a writ of certiorari.
The Fifth DCA granted the petition and quashed the disqualification order. The trial court erred by failing to apply Rule of Professional Conduct 4-1.18 (“Duties to a Prospective Client”). “Failure to apply this rule properly has caused irreparable injury that cannot be remedied on appeal. Rule 4-1.18(c) provides that, even if no attorney-client relationship ensues following a consultation, an attorney ‘may not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter.’ The trial court found credible [Lawyer’s] testimony that no confidential information was divulged during the prospective client consultation that could harm or disadvantage Respondent. Accordingly, pursuant to Rule 4-1.18, [Lawyer] is not prohibited from representing Petitioner in these proceedings.”
The court noted that cases relied upon by the trial court (State Farm Mutual Auto. Ins. Co. v. K.A.W., 575 So.2d 630 (Fla. 1991), and Metcalf v. Metcalf, 785 So.2d 747 (Fla. 5th DCA 2001)) “are clearly distinguishable from the instant case because it was uncontested in both that confidential information was exchanged.” Kidd v. Kidd, __ So.3d __ (Fla. 5th DCA, No. 5D17-137, 6/16/2017), 2017 WL 2605119.
Irrefutable presumption that lawyer acquired confidential information in attorney-client relationship also applies to “prospective clients,” per Third DCA. [Added 3/20/17]
Adult Children were co-guardians of 83-year-old Father. Children moved to annul the marriage of their father, Lopez, to 54-year-old Flores, which allegedly took place without the Children’s knowledge. Kluger Law Firm appeared for Flores. Children wrote to the Kluger Firm complaining that “numerous communications” had occurred “between the Children’s attorney and a Kluger Firm attorney in which ‘confidential information and strategy protected by the attorney/client and work product privileges’ were disclosed.” The Kluger Firm denied receiving any confidential information. The Children then moved to disqualify the Kluger Firm.
At the evidentiary hearing on the motion, the only witness to appear was the Children’s lawyer. He testified that he had spoken with a Kluger Firm lawyer about possibly co-counseling on behalf of the Children in the annulment case. He further testified “that he revealed to the Kluger Firm attorney ‘facts, strategy that I was intending to employ, and giving him a road map of where I thought he would fit into the case to help me out as co-counsel’” and disclosed facts that were not public. Importantly, this testimony was unrebutted.
The court denied the motion, finding that the evidence presented was insufficient to make a prima facie case for disqualification. The court held that “because the testimony ‘offered no proof that any specific confidential information was divulged,’ the trial court was unable to make the determination that confidential information had been divulged or that the Kluger Firm obtained any tactical advantage as a result of the discussions between the two lawyers.” Nevertheless, the court ordered that the Kluger Firm lawyer who had spoken with the Children’s lawyer to not participate in the case or discuss it with anyone at the Kluger Firm.
The Third DCA quashed the order. The appeals court applied Rule 4-1.18, which governs conflicts of interest involving a lawyer’s prospective clients. The relevant inquiry under Rule 4-1.18(c) was “whether the Kluger Firm attorney received information from the Children’s attorney that could be used to the disadvantage of the Children. The only evidence before the trial court at the hearing was the testimony of the Children’s lawyer. The Third DCA stated that “[t]he trial court’s sequestration of the Kluger Firm attorney from other Kluger Firm members is simply irreconcilable with the trial court’s conclusion that no confidential information had been shared with the Kluger Firm attorney.”
The appeals court clearly rejected any disqualification standard that would require a movant’s lawyer to testify as to the specifics of allegedly shared confidential information. The court declined Flores’s invitation to recede from prior cases holding that there is an irrefutable presumption that confidences are disclosed once an attorney-client relationship has been established. This irrefutable presumption applies in the prospective client context as well.
In a footnote, the court rejected Flore’s suggestion that 2006 amendments to Rule 4-1.18 abrogated the case law that recognize an irrefutable presumption of confidences regarding prospective clients. “In our view, rule 4-1.18 merely recognizes that, except in those circumstances outlined in rule 4-1.18(d) – which are not applicable to this case – a lawyer’s confidentiality obligations apply to prospective clients.” Lopez v. Flores, __ So.3d __ (Fla. 3d DCA, No. 3D16-2299, 3/15/2017), 2017 WL 1018492.
Court erred in disqualifying lawyer from “all aspects” of case where lawyer may be witness. [Added 3/11/17]
In a divorce case, after Wife’s lawyer failed to appear for deposition the trial court entered an order disqualifying the lawyer from “all aspects” of the case. The Fourth DCA granted Wife’s petition for certiorari and quashed the order, which Husband conceded was “overbroad.” The appellate court pointed out that Rule 4-3.7(a) provides that a lawyer “shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client . . .” (emphasis by court). “While respondent asked the trial court to compel counsel to appear for the deposition as an alternative to disqualification, the trial court failed to rule on that portion of the motion. The record furnished, which includes an evidentiary hearing, reveals that the trial court cannot adequately consider the motion to disqualify and its scope until counsel’s involvement in the underlying dissolution of marriage case is clarified.” (Citations omitted.) Riddle v. Riddle, __ So.3d __ (Fla. 4th DCA, No. 4D16-3805, 2/22/2017), 2017 WL 697731.
U.S. District Court for Middle District applies federal courts’ “balancing test” and declines to disqualify law firm that performed services for client that firm was opposing in different litigation. [Added 2/1/17]
Law Firm represented a client (Lanard) in federal court litigation in Florida against Toys R Us – Delaware, Inc. (TRS). Four months later, other lawyers in Law Firm began representation of TRS in a California case. When Law Firm had been asked to undertake the California representation as local counsel, the Firm’s conflict-checking system failed to detect the conflict due to “human error.” Two months after that, TRU realized the conflict and its counsel demanded that Law Firm cease all actions against TRU in the Florida federal case. The Firm “aggressively and unapologetically” defended its conduct. The Firm moved to withdraw in the California case.
TRU filed a motion to disqualify the firm from the Florida federal case. Filings established to the court’s satisfaction that Law Firm did not obtain any confidences from TRU. It was undisputed, however, that the Firm violated Rule 4-1.7 (current client conflicts) and that the conflict was imputed to all Firm lawyers. Nevertheless, the federal court declined to disqualify Law Firm.
Disqualification is not mandatory despite violation of a conflict rule. Unlike the standard applied in Florida state court cases (see Young v. Achenbauch, 136 So.3d 575 (Fla. 2014)), federal courts apply a balancing approach in order to “preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant’s right to freely chosen counsel” (citation omitted.) Factors considered by the court “may include the nature of the ethical violation, the age of the case, the prejudice to the parties, the effectiveness of counsel in light of the violation, the public’s perception of the profession, whether the attempt to disqualify is a tactical device or a means of harassment, and whether any screening measures have been implemented.”
Spplying these factors, the court denied the disqualification motion. The court further noted that the “hot potato rule” relied on by TRS did not require Law Firm’s disqualification. “The rule does not appear to require withdrawal from representation of both the original client (Lanard) and subsequent client (TRU) upon discovery of a conflict caused by an inadvertent error.” Lanard Toys Limited v. Dolgencorp LLC, __ F.Supp.3d __ (M.D. Fla., No. 3:15-cv-849-J-34PDB, 12/16/2016), 2016 WL 7326855.
Court applied wrong standard and consequently erred in denying public defender’s motion to withdraw. [Added 12/27/16] -- Leake v. State, 207 So.3d 343 (Fla. 2d DCA 2016).
Lawyer who moved from law firm that defended tobacco company in products liability cases to firm that represented plaintiff against that company is disqualified, along with his new firm. [Added 12/8/16] -- Philip Morris USA, Inc. v. Caro, 207 So.3d 944_ (Fla. 4th DCA 2016).
Law firm properly disqualified from 2 cases involving former clients despite delay by former clients in moving for disqualification. [Added 11/24/15] -- Steinberg v. Marlin, 201 So.3d 129 (Fla. 3d DCA 2015).
Supreme Court holds that trial court not required to obtain conflict of interest waiver when criminal codefendants are represented by same lawyer but there is no actual conflict of interest between them. [Added 7/11/15] -- State v. Alexis, 180 So.3d 929 (Fla. 2015).
Per Supreme Court, postconviction court did not abuse its discretion in denyinga motion to disqualify State Attorney’s Office based on appearance of impropriety. [Added 7/3/15] -- Hayward v. State, 183 So.3d 286 (Fla. 2015).
First DCA disqualifies law firm because one of its lawyers had confidential information about opposing party that was material to appeal. [Added 6/25/15] -- ATC Logistics Corp. v. Jackson, 168 So.3d 292 (Fla. 1st DCA 2015).
Court erred in ordering party’s in-house counsel deposed. [Added 5/8/15] -- Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, 173 So.3d 994 (Fla. 3d DCA 2015).
Law firm disqualified for opposing former client in substantially related matter despite passage of 10 years. [Added 4/30/15] -- ASI Holding Co., Inc. v. Royal Beach & Golf Resorts, LLC, 163 So.3d 668_ (Fla. 1st DCA 2015).
Actual prejudice to defendant not required before public defender will be permitted to withdraw during retrial phase due to conflict involving another client. [Added 2/25/15] -- Smith v. State, 156 So.3d 1119 (Fla. 1st DCA 2015).
Court erred in denying full evidentiary hearing to party seeking disqualification of opposing counsel. [Added 1/15/15] -- Flaig v. Coquina Palms Homeowner’s Ass’n, Inc., 153 So.3d 968 (Fla.5th DCA 2015).
Lawyer who would testify for client at contempt hearing was properly disqualified from representing client at that hearing, but could continue to represent the client in subsequent proceedings in same case. [Added 11/29/14] -- Lieberman v. Lieberman, 160 So.3d 73_ (Fla. 4th DCA 2014).
Criminal defendant’s Sixth Amendment right to counsel violated when the court denied his lawyer’s request to conduct inquiry into potential conflict arising from state’s alleged investigation of lawyer. [Added 11/10/14] -- Rutledge v. State, 150 So.3d 830 (Fla. 4th DCA 2014).
Partner of lawyer representing party may not serve as “disinterested” appraiser under insurance policy. [Added 9/29/14] -- Florida Ins. Guaranty Ass’n v. Branco, 148 So.3d 488 (Fla. 5th DCA 9/2014).
Supreme Court rejects constitutional challenges to portions of “Timely Justice Act of 2013” concerning conflicts of interest and constitutionally deficient representation. [Added 6/19/14]
Inmates under death sentences challenged portions of the “Timely Justice Act of 2013” concerning conflicts of interest and constitutionally deficient representation (as well as other provisions). The Florida Supreme Court rejected their constitutional challenges.
Section. 27.703(1), Conflict of Interest and Substitute Counsel. This revised statute modified existing law “to require that Capital Collateral Regional Counsel (CCRC) not accept an appointment or take any action that creates an actual conflict of interest with his or her client.” An “actual” conflict of interest occurs when a lawyer “actively represents conflicting interests. A possible, speculative, or merely hypothetical conflict is insufficient to support an allegation that an actual conflict of interest exists.” The revised conflict standard is more stringent than the prior standard, “which only required that CCRC not accept an appointment that created a conflict of interest.” In addition, the new law “places the responsibility of determining whether an actual conflict exists with the court, whereas the prior version of the statute required that the court appoint substitute counsel if the regional counsel of record determined that a conflict existed.”
The petitioners argued that the revised statute required a lawyer to disclose confidential information in violation of Rule of Professional Conduct 4-1.6 and therefore violated the separation of powers. The Court disagreed. “While the scope of the duty of confidentiality is broad, it does not protect all information regarding a client. Rather, an attorney may generally disclose the identity of a client or the generalities of a conflict without disclosing confidential information or violating the duty of confidentiality.” (Citations omitted.) The Court also noted that the holding of Holloway v. Arkansas, 435 U.S. 475 (1978), “demonstrates that an attorney can inform an inquiring court of the basis for a conflict of interest without disclosing confidential information.”
Section 27.7045, Constitutionally Deficient Representation. This new statute “disqualifies appointed counsel from the representation of capital defendants for five years if it is determined that: (1) in two separate capital postconviction proceedings a court held that counsel provided constitutionally deficient representation; and (2) in both of those postconviction proceedings, the defendant was granted relief.” (Footnote omitted.) The court rejected the petitioners’ challenge. “[W]e conclude that the disqualification provision of section 27.7045 does not facially violate the constitution because we conclude that the Legislature intended for the statutory disqualification provision to apply to all state-employed attorneys, but not to the twenty elected public defenders, whose qualifications are defined by the Florida Constitution.” Abdool v. Bondi, __ So.3d __ (Fla., No. SC13-1123, 6/12/2104).
Reversing Third DCA, Supreme Court applies “hot potato rule” in ordering disqualification of lawyers for violating conflict of interest rules. [Added 4/7/14]
Lawyers Hunter and Gerson represented flight attendants in class action claims for damages from exposure to second-hand smoke. The class action parties reached a court-approved settlement, with class members waiving intentional tort and punitive damages claims but retaining the right to individually pursue compensatory damage claims against the tobacco company defendants. Additionally, the defendants funded a foundation (“FAMRI”) to sponsor research for early detection and cure of flight attendants’ diseases caused by smoke. Hunter and Gerson represented some former class members in their individual suits.
Hunter and Gerson were concerned that FAMRI’s activities were unsupervised and sought an accounting. When FAMRI was “unresponsive,” clients of Hunter and Gerson petitioned for enforcement of the settlement. FAMRI and 2 flight attendants who were on FAMRI’s board of directors objected and moved to disqualify Hunter and Gerson. The objectors argued that, because Hunter and Gerson were challenging the foundation formed under a settlement agreed to by all class members, they had in essence “switched sides.” The objectors alleged that they considered all of the plaintiffs’ counsel in the class action case as their attorneys. The court disqualified Hunter and Gerson.
The Third DCA quashed the disqualification. The court saw no conflict under the current client conflict rule (4-1.7) or the former client conflict rule (4-1.9). The court observed that “Florida’s Rules of Professional Conduct alone are inadequate to resolve conflict of interest problems typical to class actions,” instead approving a test used by the Second Circuit that balances actual prejudice to the objector with the opponent’s interest in continued representation by experienced counsel of their choice. Broin v. Phillip Morris Cos., Inc., 84 So.3d 1107 (Fla. 3d DCA 2012).
The Florida Supreme Court reversed the Third DCA and reinstated the trial court’s disqualification order. Additionally, the Court asked the Florida Bar “to investigate whether any Rules of Professional Conduct were violated during the underlying proceedings or during the presentation of this case to the Court.”
The Court made it clear that “the Florida Rules of Professional Conduct provide the standard for determining whether counsel should be disqualified in a given case.” Consequently, “instead of just applying the Florida Rules of Professional Conduct to determine whether the trial court abused its discretion in disqualifying the attorneys, the Third District adopted a different test, namely a balancing test used by the federal courts.” The Third DCA “lacked the constitutional authority to adopt a new test.”
The Supreme Court’s opinion detailed affidavits submitted by the lawyers’ clients in support of the disqualification motion. In some cases Hunter and Gerson represented the clients in their individual matters and withdrew when those clients objected to the action against FAMRI. Other affidavits admitted that the Hunter and Gerson had not been attorney of record for the affiants, but alleged that they had shared confidential information with the lawyers.
The Court pointed out that the trial court correctly concluded that the lawyers had violated Rules 4-1.7 and 4-1.9. The Court indicated its support for the “hot potato” rule, stating that a lawyer may not avoid the duty of loyalty owed to current clients under Rule 4-1.7 “by taking on representation in which a conflict of interest already exists and then convert a current client into a former client by withdrawing from the client’s case. See [ValuePart, Inc. v.] Clements, [No. 06C2709, N.D. Ill. Aug. 2, 2006], 2006 WL 2252541, at *2 (explaining that a lawyer or law firm ‘may not simply [choose] to drop one client ‘like a hot potato’ in order to treat it as though it were a former client for the purpose of resolving a conflict of interest dispute’); Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339, 1345 n.4 (9th Cir. 1981) (noting that, if the duty of loyalty did not prevent this practice, ‘the challenged attorney could always convert a present client into a ‘former client’ by choosing when to cease to represent the disfavored client’).”
Regarding the affiants for whom Hunter or Gerson were not “direct counsel,” the Court still concluded that a conflict of interest existed. “[G]iven the team approach to representation by the flight attendants’ counsel in the progeny litigation and the sharing of information and confidences that occurred, the conflict of interest in pursuing the action against FAMRI should have been evident.”
The Court also concluded that the lawyers had violated Rule 4-1.9. The suit against FAMRI was “substantially related” to the class action and the subsequent individual suits “because they involve the same transaction or legal dispute.” The class action settlement established FAMRI and set limits on the use of its funds, and the present suit attacks the board’s handling of the foundation and would affect distribution of its funds. Young v. Achenbauch, 136 So.3d 575 (Fla. 2014).
Supreme Court approves most rule changes requested by Florida Bar, including revisions to rules governing conflicts and paying witnesses, but rejects proposal to restrict activities of suspended and disbarred lawyers. [Added 3/29/14]
Responding to a petition filed by the Florida Bar in October 2012, the Florida Supreme Court approved all but one of the Bar’s requested rule changes. The amendments to the Rules Regulating The Florida Bar are effective June 1, 2014. Below is a sunEthics summary of notable changes. In re: Amendments to the Rules Regulating The Florida Bar (Biennial Report), __ So.3d __ (Fla. 2014) (revised op.).
Rule 4-1.7(d) (conflicts, current clients). This rule was amended “to clarify that family relationships that must be considered as creating conflicts between lawyers include relationships by blood or marriage.” Rule 4-1.7(d) prohibits lawyers related by blood, adoption, or marriage as a parent, child, sibling, or spouse from representing conflicting interests without the clients’ informed consent. In addition to amending the rule, the Court directed the Bar “to study the rule further and consider whether the current categories should be broadened beyond parent, child, sibling, and spouse to include other significant relationships.”
Rule 4-1.9, Comment (conflicts, former clients). The Comment to Rule 4-1.9 was amended to delete an example of misuse of confidential information concerning a former client. The following sentence was deleted: “For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce.”
Rule 4-3.4(b) (paying witnesses). Rule 4-3.4(b) was revised to permit lawyers to pay non-expert witnesses for “time spent preparing for, attending, or testifying at proceedings” (new language italicized). This amendment may broaden the ability of lawyers to pay witnesses; the former rule only allowed “reimburse[ment] . . . for preparing for, attending, or testifying at proceedings.
Rule 5-1.2(c) (trust accounting). Every firm with more than one lawyer must have a written plan for compliance with trust accounting rules, and this plan must be “disseminated to each lawyer in the firm.” The rule also sets out requirements for reporting trust account problems within the firm and, if a satisfactory response is not received, to the Bar.
REJECTED proposal; Rule 3-6.1 (activities of suspended/disbarred lawyers). The Bar asked the Court to amend Rule 3-6.1 "to prohibit suspended attorneys and former attorneys who have been disbarred, or whose disciplinary resignations or revocations have been allowed, from representing clients in administrative proceedings and before administrative agencies which allow nonlawyer agents or 'qualified representatives' to represent clients in certain circumstances." The Court rejected this proposal, concluding that it does "not have the authority to prohibit a lawyer from doing non-legal work." In re: Amendments to the Rules Regulating The Florida Bar (Biennial Report), __ So.3d __ (Fla. 2014) (revised op.).
Switching horses or clients in midstream is ill-advised, per the First DCA, and results in the law firm’s disqualification. [Added 2/15/14] -- Rombola v. Botchey, __ So.3d __, 39 Fla.L.Weekly D263 (Fla. 1st DCA, No. 1D13-2169, 2/4/2014), 2014 WL 444002. NOTE: On rehearing, the First DCA denied Botchey's request to modify its opinion "to remove all statements or implications that Mr. Ahmed every disclosed any confidences or that Mr. Block or his law firm did not take safeguards to ensure that no confidences were or could be disclosed." The court instead clarified that the potential and appearance of indifference to confidentiality obligations were enough to sustain its opinion without any finding that Ahmed acted wrongfully. In closing, the court cautioned that "[y]oung attorneys such as Mr. Ahmed can be swept into situations beyond their control when they rely on their superiors to handle such matters, which is borne out in this case." Rombola v. Botchey, __ So.3d __ (Fla. 1st DCA, No. 1D13-2169, 3/27/2014) (on rehearing).
Gifts to lawyers that violate Rule of Professional Conduct 4-1.8(c) are void per new Probate Code provision. [Added 11/27/13] -- Effective October 1, 2013, a new provision in the Florida Probate Codes effectively voids written instruments purporting to make gifts to lawyers that violate Rule 4-1.8(c) of the Florida Rules of Professional Conduct. Subsection (a) of F.S. 732.806 provides: “Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.” (Rule 4-1.8(c) provides: “A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. . . .”) Subsection (b) provides: “This section is not applicable to a provision in a written instrument appointing a lawyer, or a person related to the lawyer, as a fiduciary.” (The Comment to Rule 4-1.8 provides that Rule 4-1.8(c) “does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as personal representative of the client's estate or to another potentially lucrative fiduciary position.”) The statute goes on to define terms like “related,” “written instrument,” and “gift.”
Disqualification of a law firm was not warranted where a lesser alternative could alleviate the harm caused by the firm’s access to non-privileged information. [Added 10/24/13] -- Caruso v. Knight, 124 So.3d 962 (Fla. 4th DCA 10/16/2013).
First DCA upholds order disqualifying law firm from concurrently representing tort case defendants and client with lien against recovery in that suit. [Added 10/16/13] -- Anheuser-Busch Co., Inc. v. Staples, 125 So.3d 309 (Fla. 1st DCA 10/9/2013).
Court erred in disqualifying party’s lawyer who was not a “necessary witness on behalf of” his client. [Added 9/3/13] -- Steinberg v. Winn-Dixie Stores, Inc., 121 So.3d 622 (Fla. 4th DCA 8/28/2013).
Lawyer who joined firm opposing her former client should not be disqualified without evidentiary hearing to determine her knowledge of material confidential information. [Added 8/26/13] -- AGIC, Inc. v. North American Risk Services, 120 So.3d 189 (Fla. 5th DCA 8/23/2013).
Court correctly ruled that inadvertent disclosure did not waive work product privilege but was premature in disqualifying recipient. [Added 8/14/13] -- Construction Systems of America, Inc. v. Travelers Casualty & Surety Co. of America, 119 So.3d 942 (Fla. 3d DCA 8/7/2013).
Lawyer did not improperly act as “surety” by filing nonresident case bond on behalf of client. [Added 7/3/13] -- US Bank, N.A. v. Boyer, 125 So.3d 997 (Fla. 2d DCA 6/28/2013).
Former client whose disqualification motion was denied cannot obtain certiorari relief where lawyer “adamantly denied receiving any confidences.” [Added 6/10/13] -- McCormack v. Russell, 114 So.3d 456 (Fla. 4th DCA 6/5/2013).
Per Supreme Court, trial courts may consider “excessive caseload conflict” issue in deciding motions to withdraw on systemic rather than case-by-case basis. [Added 5/28/13] -- Public Defender, Eleventh Judicial Circuit of Florida v. State, 115 So.3d 261 (Fla. 5/23/2013).
“Unfair informational advantage” standard for disqualification does not apply where lawyer represents different clients against same opposing party in unrelated matters. [Added 5/20/13] -- Miccosukee Tribe of Indians v. Lehtinen, 114 So.3d 329 (Fla. 3d DCA 5/15/2013).
Disqualification of law firm based on informational advantage is reversed because trial court decided issue on affidavits with no evidentiary hearing. [Added 4/5/13] -- Gutierrez v. Rubio, 126 So.3d 320 (Fla. 3d DCA 4/3/2013).
Lawyers whose bookkeeper embezzled millions in client funds are disbarred rather than suspended for trust accounting violations and their conduct in responding to the problem. [Added 3/30/13] -- Florida Bar v. Rousso, 117 So.3d 756 (Fla. 3/28/2013).
Fact that lawyer will be material witness disqualifies him from representing client at trial but not from pre- and post-trial proceedings. [Added 3/4/13] -- KMS Restaurant Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley, P.A., 107 So.3d 552 (Fla. 4th DCA 2/27/2013).
Law firm hired by insurer to represent 2 co-defendants has conflict requiring separate counsel when it must argue conflicting legal positions on behalf of each client. [Added 2/24/13] -- University of Miami v. Great American Assurance Co., 112 So.3d 504 (Fla. 3d DCA 2/20/2013).
Board of Governors concludes that criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct are unethical. [Added 12/14/12] In December 2012 the Board of Governors approved Florida Ethics Opinion 12-1. The opinion concludes that a criminal defense lawyer has an unwaivable conflict of interest that precludes the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance of counsel by the defense lawyer or to waive any claims of prosecutorial misconduct. Opinion 12-1 also concludes that it is unethical for a prosecutor to make such an offer.
Court erred in disqualifying wife’s counsel based on receipt of confidential information allegedly improperly obtained from husband’s computer. [Added 12/5/12] -- Strawcutter v. Strawcutter, 101 So.3d 417 (Fla. 5th DCA 2012).
Lawyer working for law firm as outsourced independent contractor is not “associated” with firm for purposes of imputation of conflicts. [Added 10/24/12] -- Brown v. Fla. Dept. of Highway Safety and Motor Vehicles, 2012 WL 4758150 (N.D. Fla., No. 4:09-cv-171-RS-CAS, 10/5/2012).
Third DCA addresses standard for disqualification when lawyers receive inadvertently disclosed confidential information. [Added 8/23/12] -- Moriber v. Dreiling, 95 So.3d 449 (Fla. 3d DCA 2012). Court erred in denying pro hac vice admission based on alleged conflicts of interest. [Added 7/9/12] -- THI Holdings, LLC, v. Shattuck, 93 So.3d 419 (Fla. 2d DCA 2012).
Public Defender’s Office representing ward in Baker Act case should not have been discharged on claim that guardian’s lawyer could represent ward. [Added 4/16/12] -- Auxier v. Jerome Golden Center for Behavioral Health, 85 So.3d 1164 (Fla. 4th DCA 2012).
Supreme Court construes rule of professional conduct regulating attorney-client business transactions in disbarring lawyer. [Added 4/3/12] -- Florida Bar v. Doherty, 94 So.3d 443 (Fla. 2012).
Per Third DCA, “traditional conflict model” is inadequate to resolve disqualification motions in class action context. [Added 3/26/12] -- Broin v. Phillip Morris Companies, Inc., 84 So.3d 1107 (Fla. 3d DCA 2012).
Per Supreme Court, public defender's certification of conflict does not automatically shift representation to RCC, but RCC has no standing to object to P.D.'s motion to withdraw. [Added 1/14/12] -- Johnson v. State of Florida, 78 So.3d 1305 (Fla. 2012).
Court should not have disqualified lawyer despite unusual conflict of interest on the part of person who hired him. [Added 8/16/11] -- Razin v. A Milestone, LLC, 67 So.3d 391 (Fla. 2d DCA 2011).
Supreme Court suspends lawyer for 3 years for rule violations in representation of putative class. [Added 5/4/11] -- Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011).
Supreme Court suspends lawyer whose sexual relationships with clients violated conflict rule and other rules. [Added 3/7/11] -- Florida Bar v. Roberto, 59 So.3d 1101 (Fla. 2011).
Party moving for disqualification had no standing to do so where party had no relationship with subject law firm. [Added 3/4/11] -- Continental Casualty Co. v. Przewoznik, 55 So.3d 690 (Fla. 3d DCA 2011).
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. [Added 1/3/11] -- Alan B. Garfinkel, P.A. v. Mager, 57 So.3d 221 (Fla. 5th DCA 2010).
Court's failure to inquire into defense counsel's potential conflict is not subject to harmless error rule. [Added 9/14/10] -- Hannah v. State, 42 So.3d 951 (Fla. 4th DCA, No. 4D09-1039, 9/1/2010).
Court departed from essential requirements of law in granting motion to disqualify law firm. [Added 7/28/10] -- Zayas-Bazan v. Marcelin, 40 So.3d 870 (Fla. 3d DCA 2010).
Court erred by ordering lawyer's disqualification after appeal had been filed. [Added 7/24/10] -- luck v. Cloninger, 39 So.3d 1277 (Fla. 5th DCA 2010).
First DCA clarifies that Department of Revenue lawyers represent Department, not parent, in child support actions. [Added 7/19/10] -- Florida Dept. of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010).
Court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict. [Added 7/8/10] -- State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010).
In conflict of interest case, Supreme Court imposes harsher disciplinary sanction than that recommended by referee. [Added 6/10/10] -- Florida Bar v. Scott, 39 So.3d 309 (Fla. 2010).
Law firm that outsourced trial preparation work that client paid for had "palpable" lawyer-client conflict and could be subject to client's excessive fee claim under Rule 4-1.5. [Added 5/25/10] -- Liebreich v. Trial Strategies, Inc., 40 So.3d 1 (Fla. 2d DCA 2010).
Lawyers and client sanctioned for appealing non-appealable order, and court notes that client may have conflict-free counsel when sanction amount is determined on remand. [Added 5/19/10] -- Maradriaga v. 7-Eleven, 35 So.3d 109 (Fla. 1st DCA 2010).
Fifth DCA concurring opinion points out potential conflict when lawyer represents client in arguing for reversal of 57.105 sanctions order against both. [Added 3/29/10] -- Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010).
Law firm's representation of LLC did not create attorney-client relationship with principal for purposes of disqualification. [Added 3/11/10] -- PMG Collins, LLC v. R and G Enterprises, LLC, 30 So.3d 605 (Fla. 3d DCA 2010).
Court properly declined to disqualify former prosecutor from representing defendant, where lawyer had not substantially participated in defendant's prosecution. [Added 3/2/10] -- State v. de la Osa, 28 So.3d 201 (Fla. 4th DCA 2010). NOTE: Although not mentioned in the court's opinion, the result appears to be consistent with Rule 4-1.11(a), Florida Rules of Professional Conduct
Law firm disqualified based on unfair informational or tactical advantage obtained through receipt of opposing party's privileged materials. [Added 2/12/10] -- Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010).
Disqualification of party's law firm was premature where party not allowed to present evidence refuting movant's claims. [Added 2/10/10] -- Minakan v. Husted, 27 So.3d 695 (Fla. 4th DCA 2010).
Conflict rule governing concurrent representation of clients (RPC 4-1.7) does not permit analysis of whether conflict is "material." [Added 1/14/10] -- Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., 26 So.3d 638 (Fla. 1st DCA 2010).
Trial court erred in disqualifying lawyer who would be called as witness by opposing party without determining whether lawyer's testimony would be adverse to her client. [Added 11/15/09] -- Alto Construction Co. v. Flagler Construction Equipment, LLC, 22 So.3d 726 (Fla. 2d DCA 2009).
Trial court properly denied motion to disqualify law firm based on alleged conflict of interest and breach of fiduciary duty grounds. [Added 11/5/09] -- Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009).
Trial court erred by denying defendant's motion to compel deposition of plaintiff's counsel. [Added 9/14/09] -- Nucci v. Simmons, 20 So.3d 388 (Fla. 2d DCA 2009).
Postconviction court should have appointed counsel after defendant claimed conflict with his lawyer, who had since left public defender's office. [Added 8/14/09] -- Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009).
Trial court did not err in refusing to disqualify entire State Attorney's Office after it hired lawyer who had been representing defendant on his criminal case. [Added 7/25/09] -- Lot v. State, 13 So.3d 1121 (Fla. 3d DCA 2009).
Neither trial counsel's personal dislike of client nor client's filing of Bar complaint resulted in ineffective assistance. [Added 7/15/09] -- Hutchinson v. State, 17 So.3d 696 (Fla. 2009).
Trial court properly denied motion to disqualify moving party's former lawyer based on conflict rule that applies to current clients. [Added 7/13/09] -- Schulte v. Angus, 14 So.3d 1279 (Fla. 3d DCA 2009).
Third DCA reverses circuit order permitting Public Defender's Office to decline representation in all future 3rd-degree felony cases. [Added 5/15/09] -- State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009).
Law firm's effort to withdraw from case in response to motion to disqualify may not remedy problem. [Added 4/2/09] -- Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009).
Regional Conflict Counsel has no standing to object to Public Defender's motion to withdraw from case on conflict grounds. [Added 3/20/09] -- Johnson v. State, 6 So. 3d 1262 (Fla. 4th DCA 2009), 2009 WL 690989.
Third DCA reminds lawyers of high standards that apply when lawyers engage in business dealings with clients. [Added 3/4/09] -- Brigham v. Brigham, 11 So.3d 374 (Fla. 3d DCA 2009).
Supreme Court imposes 18-month suspension on lawyer who started business that competed with one of his clients. [Added 2/24/09] -- Florida Bar v. Herman, 8 So.3d 1100 (Fla. 2009).
ABA House of Delegates amends Model Rule of Professional Conduct to allow law firms to screen lateral hires in order to prevent disqualification. [Added 2/17/09]
Trial court erred in disqualifying entire State Attorney's Office from prosecuting criminal case. [Added 12/8/08] -- State v. Hayes, 997 So.2d 446 (Fla. 4th DCA 2008).
Once case sent to arbitrators per agreement to arbitrate, issue of lawyer disqualification is for arbitrators rather than trial court. [Added 11/15/08] -- Reuter Recycling of Florida, Inc. v. City of Hallendale, 993 So.2d 1178 (Fla. 4th DCA 2008).
Trial court erred in appointing lawyer to represent criminal defendant when lawyer had previously represented client and co-defendant. [Added 10/24/08] -- Cadejuste v. State, 993 So.2d 122 (Fla. 4th DCA 2008).
Trial court erred in granting motion to disqualify counsel filed 2 years after underlying facts became known. [Added 10/17/08] -- Rahman v. Jackson, 992 So.2d 390 (Fla. 1st DCA 2008).
Trial court erred in denying public defender's motion to withdraw based on his office's simultaneous representation of defendant and informant who was helping prosecution. [Added 9/28/08] -- Scott v. State, 991 So.2d 971 (Fla. 1st DCA 2008).
Disqualification based on inadvertent receipt of privileged documents extends to entire law firm, not just receiving lawyer. [Added 9/23/08] -- Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So.2d 1117 (Fla. 3d DCA 2008).
Fourth DCA quashes order disqualifying lawyer from opposing former client; matters not "substantially related." [Added 7/15/08] -- Waldrep v. Waldrep, 985 So.2d 700 (Fla. 4th DCA 2008).
Order disqualifying law firm is quashed because trial court ruled without holding evidentiary hearing. [Added 7/10/08] -- The Event Firm, LLC v. Augustin, 985 So.2d 1174 (Fla. 3d DCA 2008).
Alleged "agency" relationship does not disqualify lawyer who was referred case due to referring lawyer's conflict of interest, nor does privileged information inadvertently included in transferred file require disqualification. [Added 5/29/08] -- Manning v. Cooper, 981 So.2d 668 (Fla. 4th DCA 2008).
Finding additional conflict of interest violation, Florida Supreme Court rejects recommended discipline and suspends lawyer. [Added 1/24/08] -- Florida Bar v. Brown, 978 So.2d 107 (Fla. 2008).
Supreme Court discusses conflicts of interest and imputation of conflicts in context of ineffective assistance of counsel claim. [Added 11/19/07] -- Connor v. State, 979 So.2d 852 (Fla. 2007) (revised opinion).
Questioned fee arrangement does not result in reversal of conviction, but defense counsel's handling of murder weapon does. [Added 11/14/07] -- Alessi v. State, 969 So.2d 430 (Fla. 5th DCA 2007).
Defense counsel's "nodding acquaintance" with key state witness was not conflict of interest requiring counsel's withdrawal; counsel's failure to move for judge's disqualification not ineffective assistance. [Added 10/17/07] -- Kormondy v. State, 983 So.2d 418 (Fla. 2007).
Meaning of "substantially related matter" in context of disqualification motion filed by lawyer's former client discussed by Fourth DCA. [Added 7/26/07] -- Health Care and Retirement Corp. of America, Inc. v. Bradley, 961 So.2d 1071 (Fla. 4th DCA 2007).
Per Supreme Court, Rule 4-3.7 (lawyer as witness) does not require withdrawal of lawyer who will testify in client's favor at post-trial hearing. [Added 7/5/07] -- Willacy v. State, 967 So.2d 131 (Fla. 2007).
Trial court erred in relying on unsworn argument as only factual basis for disqualifying moving lawyer and his new firm; Second DCA notes that governing standard is Rule 4-1.10(b). [Added 6/16/07] -- Bon-Secours-Maria Manor Nursing Care Center, Inc. v. Seaman, 959 So.2d 774 (Fla. 2d DCA 2007).
Judge in domestic matter did not err by appointing one party's lawyer as special prosecutor to pursue indirect criminal contempt charge against other party. [Added 5/24/07] -- Gordon v. State, 960 So.2d 31 (Fla. 4th DCA 2007). See also Gordon v. State, 967 So.2d 357 (Fla. 4th DCA 2007) (opinion denying rehearing).
Error to disqualify entire state attorney's office on ground that one of its prosecutors might be called as impeachment witness by defendant. [Added 4/25/07] -- State v. Fields, 954 So.2d 1218 (Fla. 3d DCA 2007).
Lawyer who formerly represented client but moved to new law firm remains subject to irrefutable presumption that confidences were acquired; Rule 4-1.9 (rather than Rule 4-1.10) governs disqualification issue. [Added 12/20/06] -- Health Care and Retirement Corp. of America, Inc. v. Bradley, 944 So.2d 508 (Fla. 4th DCA 2006) (on rehearing).
In parental notification of abortion case, judge erred in disqualifying minor's lawyer who also worked as assistant public defender. [Added 12/18/06] -- In re: Jane Doe 06-C, 948 So.2d 30 (Fla. 1st DCA 2006).
No rule of automatic disqualification when lawyer received privileged documents through inadvertent disclosure. [Added 9/27/06] -- Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404 (Fla. 4th DCA 2006).
Alleged prejudice to party that plans to call opponent's lawyer as witness is not basis for disqualification under Rule of Professional Conduct 4-3.7. [Added 8/10/06] -- AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675 (Fla. 2d DCA 2006).
Lawyer who continues to represent multiple clients after conflict arises not entitled to fees for work performed after that point. [Added 7/8/06] -- James T. Butler, P.A. v. Walker, 932 So.2d 1218 (Fla. 5th DCA 2006).
Criminal defendant's filing of federal suit against his lawyer is not conflict that requires appointment of new counsel. [Added 3/7/06] -- Miller v. State, 921 So.2d 816 (Fla. 5th DCA 2006).
Lawyer disqualified from opposing former client in substantially related matter, despite lawyer's lack of "inside information." [Added 3/3/06] -- Estright v. Bay Point Improvement Ass'n, Inc., 921 So.2d 810 (Fla. 1st DCA 2006).
Lawyer-witness rule disqualifies lawyer who drew will from representing party in will contest; Rule 4-3.7 upheld against constitutional attack. [Added 1/31/06] -- Eccles v. Nelson, 919 So.2d 658 (Fla. 5th DCA 2006).
Focusing on factual differences and absence of informational advantage, court concludes matters not "substantially related" and declines to disqualify lawyer who opposes former client. [Added 12/23/05] -- Frank, Weinberg & Black, P.A. v. Effman, 916 So.2d 971 (Fla. 4th DCA 2005).
When lawyer moves to new firm that opposes old firm's client, no irrefutable presumption of confidences requiring new firm's disqualification. [Added 10/11/05] -- Solomon v. Dickison, 916 So.2d 943 (Fla. 1st DCA 2005).
In litigation between 2 corporate shareholders, lawyer disqualified from representing both shareholder and corporation, but could represent shareholder alone. [Added 9/21/05] -- Campellone v. Cragan, 910 So.2d 363 (Fla. 5th DCA 2005).
Second DCA suggests need for legislative regulation in Florida of advance funding industry. [Added 9/16/05] -- Fausone v. U.S. Claims, Inc., 915 So.2d 626 (Fla. 2d DCA 2005).
Corporation's law firm owed duties to entity rather than individual shareholders; additionally, individuals waived all conflicts. [Added 2/7/05] -- Rudolf v. Gray, Harris & Robinson, P.A., 901 So.2d 148 (Fla. 5th DCA 2005).
Absent showing that current representation was adverse to lawyer's former client, lawyer's disqualification not appropriate. [Added 1/27/05] -- Herschowsky v. Guardianship of Herschowsky, 890 So.2d 1246 (Fla. 4th DCA 2005).
Firm representing "Client A" in suit against "Client B" violates Rule 4-1.7 and is disqualified, even where firm's representation of "Client B" is unrelated to suit. [Added 1/2/05] -- Harvey E. Morse, P.A. v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004).
Disqualification "premature" where, at time of disqualification order, record did not show lawyer would be necessary witness. [Added 12/31/04] -- Brooks v. Foster, 889 So.2d 902 (Fla. 4th DCA 2004).
Plaintiff lacked standing to move for disqualification of opposing counsel who never represented her. [Added 10/19/04] -- Anderson Trucking Service, Inc. v. Gibson, 884 So.2d 1046 (Fla. 5th DCA 2004).
Rule 4-1.7 does not prohibit law firm from concurrently representing plaintiff in shareholder derivative suit and in individual action against corporation. [Added 8/3/04] -- Gonzalez v. Chillura, 892 So.2d 1075 (Fla. 2d DCA 2004) (on rehearing).
Trial court erred in disqualifying law firm that briefly hired, as part-time independent contractor, former legal secretary of opposing law firm who had been privy to confidential information. [Added 3/24/04] -- Eastrich No. 157 Corp. v. Gatto, 868 So.2d 1266 (Fla. 4th DCA 2004).
F.S. 57.105 can present "inherent conflict" between lawyer and client. [Added 7/28/03] -- Kerzner v. Lerman, 849 So.2d 1185 (Fla. 4th DCA 2003). (The Fifth DCA recently noted a potential ethical conflict in the application of Fla.Stat. sec. 57.105. See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003).) Where non-testifying expert did not acquire confidences that would result in unfair informational advantage, disqualification of lawyer who hired him was not warranted. [Added 7/30/03] -- Sultan v. Earing-Doud, 852 So.2d 313 (Fla. 4th DCA 2003).