Florida - CONFLICTS OF INTEREST (including Disqualification)
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]
Defendant was represented by an assistant public defender (“PD”). Shortly before Defendant’s trial date, PD learned that 2 of the alleged victims had signed letters of support indicating that they would contribute monetarily to the elected Public Defender’s re-election campaign. When PD told Defendant of this, Defendant asked PD to withdraw. PD accordingly moved to withdraw, but the State objected. The trial court denied the withdrawal motion, applying MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). In that case, involving judicial disqualification, the Supreme Court concluded that a judge would not be disqualified where a litigant’s lawyer had donated $500 to the political campaign of the trial judge’s spouse.”
The Second DCA ruled that the trial court departed from the essential requirements of law when it applied MacKenzie, which was the wrong standard. Rather, the court should have applied F.S. 27.5303 and Rule of Professional Conduct 4-1.7. “The relevant consideration for the trial court here was whether there was an actual conflict and whether that conflict would have an adverse effect on [PD]’s representation of [Defendant].” Leake v. State, __ So.3d __ (Fla. 2d DCA, No. 2D16-2639, 11/30/2106), 2016 WL 6992144.
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]
From 2005 to May 2015, Lawyer worked at a law firm that represented Philip Morris (“PM”) in various products liability matters involving smoking claims, including Engle progeny cases. Lawyer left that firm to join a new firm, at which he represented Plaintiff in her products liability claim against PM. PM moved to disqualify Lawyer and his new law firm.
Plaintiff argued that disqualification was not warranted because “the res judicata effect of the findings in the Engle class action left only ‘plaintiff-specific issues for individual trials,’ such that any work [Lawyer] had done defending PM previously was not in conflict in this case.” Plaintiff further argued that, even if Lawyer were to be disqualification, his law firm should not be disqualified because Lawyer “did not acquire actual knowledge of PM’s confidential information material to this plaintiff’s case, or communicate such information to anyone at [Lawyer’s new law] firm.”
The trial court applied Rule 4-1.9, using the test set out in State Farm Mutual Ins. Co. v. K.A.W., 575 So.2d 630 (Fla. 1991). Two issues are considered under this test: (1) whether there was an attorney-client relationship between Lawyer and PM; and (2) if so, are the prior matters the same as or “substantially related” to the current case. The existence of a prior attorney-client relationship was not in dispute, thus giving rise to the irrefutable presumption that confidential information was disclosed to Lawyer during the relationship.
The trial court then concluded that the prior matters were not substantially related to the current case because the remaining issues in the case were “plaintiff-specific, including: class membership, individual reliance, comparative fault, and damages.” The court further reasoned that any information that Lawyer had possessed regarding the defense of PM in these types of cases had become “well known to plaintiff’s lawyers throughout Florida who have been litigating against PM” and so was not disqualifying under the Comment to Rule 4-1.9 (“generally known” information). As a result, the trial court denied the disqualification motion.
PM sought certiorari review. The Fourth DCA ruled that the trial court had departed from the essential requirements of law in denying the disqualification motion, and remanded with directions that both Lawyer and his firm be disqualified.
The appeals court concluded that the prior matters and current case were indeed substantially related. “While there are some issues relating to [Plaintiff]’s case, and indeed in every plaintiff’s case involving Engle litigation, that are unique to, and distinct from, defense matters on which [Lawyer] previously worked, we cannot conclude that [Lawyer]’s extensive prior representation of PM in defending and strategizing about Engle progeny cases was not substantially related to at least some of the issues here. As PM has argued, each Engle progeny case includes a plaintiff’s expert witness who testifies about the defendant company’s conduct relating to concealment of information about the health risks of smoking and defective design of cigarettes. This expert testimony is said to vary little from case to case. This reaches beyond a unique plaintiff’s issue.” In the language of the Comment to Rule 4-1.9, the court found that the issues in the prior and current cases are not “wholly distinct.”
Lawyer’s law firm was also disqualified under Rule 4-1.10(b). For a law firm that hires a lawyer to be disqualified, the moving lawyer must have actual knowledge of material confidential information. PM demonstrated that Lawyer possessed such knowledge. Philip Morris USA, Inc. v. Caro, __ So.3d __ (Fla. 4th DCA, No. 4D16-2416, 12/7/2016), 2016 WL _______.
Law firm properly disqualified from 2 cases involving former clients despite delay by former clients in moving for disqualification. [Added 11/24/15]
Attorney Buchbinder and his law firm (collectively, “Law Firm”) had represented a general partnership (“FBK”) and some of its partners, including Robert Marlin. Marlin and several other partners transferred their interests to Robyn Marlin, Robert’s wife, and withdrew from the partnership.
Law Firm represented FBK and Robert Marlin in a Broward County case in 1997-1999, and during this time also represented FBK in a collection action in Miami-Dade County. “In 2012, Robert Marlin moved to disqualify Buchbinder and his firm in the collections case from representing the defendants in that case, Jack Burstein and Steven Cook, because it was a matter adverse to Robert Marlin involving issues relating to FBK. The trial court disqualified Buchbinder and his law firm.”
In 2009 Steinberg, a FBK partner, sued Marlin and his wife to prohibit them from acting on behalf of FBK. In 2014 FBK sued Steinberg to recover damages for alleged failure to contribute capital to FBK. The 2 suits were consolidated.
Robert and Robyn Marlin moved to disqualify Steinberg’s counsel, Law Firm, from the 2 consolidated cases, “claiming that Buchbinder formerly represented Robert Marlin and FBK in substantially related matters in the Broward County case and the Miami-Dade collections case.” The court disqualified Law Firm on conflict grounds (Rule 4-1.9, 4-1.10) and on the ground that Buchbinder would be a material fact witness in the 2 suits (Rule 4-3.7). Steinberg petitioned the Third DCA for a writ of certiorari.
The Third DCA denied the petition and upheld the disqualification. “[A]n attorney-client relationship existed between the Marlins and Buchbinder and his law firm. Buchbinder and his law firm represented Robert Marlin and FBK in substantially related matters when Buchbinder and his firm represented Marlin and FBK in the previously mentioned Broward County case and the Miami-Dade county collection case. Respondents thus satisfied the requirement for disqualification based on a conflict of interest relating to former clients. See R. Regulating Fla. Bar 4-1.9.”
The appellate court rejected Steinberg’s argument that the Marlins waived their right to seek disqualification due to the delay in filing their motion, relying on cases such as Zayas-Bazan v. Marcelin, 40 So.3d 870 (Fla. 3d DCA 2010). The court distinguished Zayas-Bazan, noting that Buchbinder and his firm “were previously disqualified from representing interests adverse to the Marlins in an action relating to FBK,” and that the Marlins learned about Buchbinder’s status as a key witness right before filing their motion. “Steinberg’s waiver argument fails because none of the other cases he cites involve an attorney that was previously disqualified from representing clients adverse to the moving party, nor do they involve a disqualified counsel being a material fact witness.” Steinberg v. Marlin, __ So.3d __ (Fla. 3d DCA, No. 3D14-2587, 10/14/2015), 2015 WL 5965207.
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]
Two suspects were arrested and charged after a victim was accosted by two men at gunpoint. One codefendant allegedly made a post-arrest statement adverse to the other. He later denied making the statement. The two codefendants were jointly represented by retained counsel. At a severance hearing, defense counsel brought up the dual representation issue. The trial court noted that there was a potential conflict of interest and asked both codefendants if they wished to continue to be jointly represented by the same counsel. They both answered that they did.
The codefendants were tried together. Alexis (“Respondent”) was convicted. Respondent filed motion for postconviction relief, alleging that he was provided ineffective assistance of counsel because the trial court did not conduct a sufficient inquiry regarding the joint representation, and so his waiver was invalid. (Specifically, Respondent argued that the 3-step conflict inquiry procedure prescribed in Larzelere v. State, 676 So.2d 394 (Fla. 1996) was required, and that the trial court had completed only the first step of that procedure.) The First DCA agreed and granted Respondent a new trial.
The State petitioned for Supreme Court review based on the Court’s conflict jurisdiction. The Court quashed the First DCA’s decision. In a lengthy opinion the Court discussed relevant case law and concluded that a trial court is not required to obtain a conflict of interest waiver when criminal codefendants are represented by the same lawyer but there is no actual conflict of interest between them. Here, only a potential conflict was presented by the multiple representation under the facts of the case.
The Court explained: “[D]efense counsel in the instant case did not object, nor did he claim he could not effectively represent both defendants. He represented to the court that there was no impediment to joint representation. In Cuyler [v. Sullivan, 446 U.S. 35 (1980) ], the [U.S. Supreme] Court stated that unless a court knows or should know of a conflict, the Sixth Amendment does not require a state court to initiate inquiry into the issue of a conflict of interest from multiple representation. Multiple representation alone does not violate the Sixth Amendment, and in the absence of an objection, a court can presume there is no conflict of interest. When the defendant does not object, only an actual conflict of interest violates a defendant’s Sixth Amendment rights; courts should not presume that a possible conflict will violate the Sixth Amendment.” State v. Alexis, __ So.3d __ (Fla., No. SC14-1341, 7/9/2015), 2015 WL 4112372.
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]
Defendant was convicted of first-degree murder and sentenced to death. He sought postconviction relief under Fla.R.Crim.P. 3.851. When the postconviction court denied his motion, Defendant sought review in the Florida Supreme Court.
Among other things, Defendant alleged that the postconviction court erred in denying his motion to disqualify the State Attorney’s Office. Defendant’s trial counsel had deposited his files regarding Defendant’s case with the State Attorney’s Office. Defendant contended that this warranted disqualification of the State Attorney’s Office because the office “was in possession of the files for several weeks and thus had the opportunity to review, copy, disseminate, or alter the files.” Defendant, however, had no proof of actual prejudice resulting from the situation.
In the Supreme Court, Defendant urged an additional ground for disqualification. He claimed that lawyers in the State Attorney’s Office had provided financial contributions to his trial counsel, who had undergone financial hardships after being disbarred (for matters unrelated to Defendant’s case). The lawyers anonymously donated money for Publix gift cards. Defendant argued “that ‘the fact that State [Attorneys] gave money to a potential witness is a significant conflict of interest’ and that the ‘relationship alone jeopardized [Defendant]’s right to fair postconviction proceedings, warranting the State Attorney’s disqualification.’”
The Supreme Court rejected Defendant’s contentions, ruling that the postconviction court did not abuse its discretion in denying the motion to disqualify. “To the extent that the transfer simply provides an ‘appearance of impropriety,’ this does not rise to the level necessary to require disqualification. The postconviction court did not specifically address the added factor that some personnel at the State Attorney’s office donated funds toward the gift card for [trial counsel], who was struggling financially after his disbarment, but [Defendant] has failed to provide any proof that the anonymous donations influenced [trial counsel’s] testimony or prejudiced [Defendant] in any way. Moreover, the record shows that Assistant State Attorney Butler, who handled the postconviction proceeding in this case, did not donate any of those funds.” Hayward v. State, __ So.3d __ (Fla., Nos. SC12-1386, 13-1787, /25/2015), 2015 WL 3887692.
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]
While an associate at “Old Firm,” Parker worked with Dore, a partner who represented Old Firm’s client, Toyota. Parker left Old Firm to join “New Firm.” New Firm represented Toyota’s opponent in the appeal of a case that Parker worked on while with Old Firm. Parker “drafted and filed the summary judgment motion” that was on appeal. Old Firm’s client, Toyota, moved to disqualify Parker and New Firm. The First DCA relinquished jurisdiction to the trial court for the purpose of an evidentiary hearing, after which the trial court prepared a report and recommendation on the merits of the disqualification motion.
The First DCA applied Rule 4-1.10(b). Because Parker acquired material confidential information regarding Old Firm’s client, Parker and New Firm were disqualified.
Parker “discussed legal strategy with Mr. Dore, analyzed the legal issues involved, and actually drafted the summary judgment motion for Mr. Dore’s review. Clearly, as part of this work, Ms. Parker was privy to the work product of Mr. Dore – who represents Toyota in this appeal – and this work product is information relating to the representation of Toyota. This was sufficient to show that Ms. Parker acquired confidential information.”
The appeals court rejected New Firm’s argument that all of Parker’s information “is now public knowledge” that any competent lawyer could access because it was used to prepare the summary judgment motion. “We cannot agree with this argument. Surely Ms. Parker and Mr. Dore discussed more than the arguments actually written in the motion for summary judgment, and Ms. Parker’s testimony does not necessarily support Appellant’s position that they did not. While any lawyer may be able to attempt to determine the relative strengths and weaknesses of Toyota’s case, Ms. Parker and Mr. Dore actually discussed the strengths and weaknesses of Toyota’s case. As [the lower court] found, this information could certainly be used against Toyota at this stage of the proceedings. See Rombola v. Botchey, 149 So.3d 1138, 1144 (Fla. 1st DCA 2014) (‘[O]ftentimes it is what is not in the record that is critical in making strategic decisions. Information shared in confidential after-hours trial preparation sessions – that unveil litigation strategies and test their strengths and weaknesses – is oftentimes far more potentially harmful if disclosed to adversaries (or used against a former client) than what is in the record.’)” (emphasis by court). 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]
Lawyer was in-house counsel for a party in litigation. Lawyer was not counsel of record but was “directly involved” in the litigation, “having both directed and overseen ‘various aspects of [his client’s] investigation of the accident on which [the opposing parties] . . . premised their allegations and claims sub judice, as well as [having] prepar[ed] and receiv[ed] documentation [including attorney-client privileged communications and work product documents] related to the investigation.’” The trial court ordered Lawyer’s deposition taken. Lawyer’s client petitioned the Third DCA for a writ of certiorari.
The Third DCA quashed the order. Taking the deposition of opposing counsel in a pending case is an extraordinary step that is rarely justified. The deposition was not justified under the applicable test announced in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (such depositions limited to “where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.” Eller-I.T.O. Stevedoring Co., LLC v. Pandolfo, __ So.3d __ (Fla. 3d DCA, No. 3D14-2904, 4/29/2015), 2015 WL 1945151.
Law firm disqualified for opposing former client in substantially related matter despite passage of 10 years. [Added 4/30/15]
In 2009, during negotiations with Royal Beach & Golf Resorts (“Royal”), ASI Holding Company (“ASI”) disclosed proprietary information about ASI’s amenities program. Royal executed a non-disclosure agreement (“NDA”). The negotiations provided fruitless.
ASI subsequently learned that Royal was operating an amenities program very similar to ASI’s. In 2010 ASI sued Royal for breach of the NDA. In 2014 Royal changed counsel, hiring the same law firm that represented ASI in NDA-related matters 10 years earlier. When Law Firm declined to withdraw, ASI moved to disqualify the firm. The court denied disqualification, stating: “The time that separates the [prior] representation and the current [representation] and the circumstances [of the NDA] are such that the Court is not persuaded that the disqualification is proper.” ASI petitioned for certiorari review.
The First DCA ordered Law Firm disqualified. Rule 4-1.9 prohibits a law firm from opposing a former client in a matter that is “substantially related” to the firm’s representation of the former client. Matters are “substantially related” if the current matter “would involve the lawyer attacking work that the lawyer performed for the former client.” Comment, Rule 4-1.9. The court observed: “Notably, nothing in the rule or caselaw suggests that questions regarding conflicting representations turn on the passage of time.”
Law Firm had previously represented ASI in seeking to enforce, for ASI, “the identical NDA” at issue in the present case. For Royal, however, Law Firm was contending that the NDA was not valid and enforceable. “With this defense, [Law Firm] would be taking a position exactly contrary to the professional opinion and advice it gave earlier on ASI’s behalf. Again, it is undisputed that the terms of the NDA haven’t changed in all these years. As such, [Law Firm] would be placed in a position of attacking its prior legal opinion and advice regarding the NDA were it to represent [Royal] in this case.” See Lane v. Sarfati, 676 So.2d 475 (Fla. 3d DCA 1996).
The court distinguished Health Care & Ret. Corp. of Am., Inc. v. Bradley, 961 So.2d 1071 (Fla. 4th DCA 2007), noting that the present case “not only involves the same ‘type’ of representation (i.e., breach of contract), but would have [Law Firm] attacking the validity of the very document that it had previously represented to be valid and legally binding.” ASI Holding Co., Inc. v. Royal Beach & Golf Resorts, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D14-4928, 4/29/2015).
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]
The Public Defender’s Office (“public defender”) represented Deviney and Smith in two different murder cases. The same judge presided over both cases. The public defender filed substantially similar motions to withdraw in each case, asserting that the representation of each of these clients “would be materially limited by her responsibilities of loyalty and confidentiality to another unnamed client, pursuant to Rule [of Professional Conduct] 4-1.7.”
At the hearing on the motion in Deviney’s case, the public defender informed the court that she could not disclose the nature of the conflict in detail without breaching her duty to one or both clients. The state responded that it would waive any interest it had in using information from Deviney against another defendant. At the hearing in Smith’s case, the state asserted that it had no interest in using information from another criminal defendant at Smith’s trial.
The trial court denied the motions to withdraw in both cases, ruling that the public defender “had ‘not presented evidence sufficiently establishing the existence of an actual conflict.’” The order noted that “‘the State is not using any other public defender client as a State witness during trial and the State has no intention on seeking to learn the information at issue from the other public defender client.’”
The public defender petitioned the First DCA for a writ of certiorari, arguing that the trial court’s finding that the public defender did not present sufficient evidence of an actual conflict went beyond what is required for withdrawal under F.S. 27.5303(1)(a). This statute provides that, when the public defender files a motion to withdraw due to conflict between its clients, the court “may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications” (emphasis by court). The state arguing that, per Cuyler v. Sullivan, 446 U.S. 335 (1980), the public defender must show an active conflict of interest that affected counsel’s performance.
The First DCA quashed the orders denying the motions to withdraw. “We disagree with the State’s premise that actual prejudice to the defendant is required before withdrawal of counsel will be permitted in the pretrial context.” In the pretrial stage, the court has broad discretion in determining whether a conflict exists. See Kolker v. State, 649 So.2d 250 (Fla. 3d DCA 1994). Furthermore, “‘[v]iewed prospectively, any substantial risk of harm is deemed prejudicial.’ Scott v. State, 991 So.2d 971, 972 (Fla. 1st DCA 2008).”
The appellate court summarized: “Once a public defender has certified a conflict, and where it becomes clear that the trial court cannot learn the basis for the conflict ‘without requiring the disclosure of . . . confidential communications,’ the trial court must grant the motion under section 27.5303(1)(a).” The trial court’s requirement that the public defender disclose information to establish an actual conflict “runs contrary to section 27.5303(1)(a), because for the public defender’s office to present such evidence, it would be forced to reveal confidential and privileged client information.”
The state’s offer to not use the information did not eliminate the conflict. The appeals court noted that the offer was too narrow; it seemed to apply only to the current charges against Smith and “did not cover the use of information against Mr. Smith relating to a new and uncharged crime.” (Emphasis by court.)
The appeals court certified this question to the Supreme Court: “In cases where a public defender moves to withdraw from the representation of a criminal defendant on the basis of a client conflict, but certifies to the trial court, as an officer of the court, that he or she is unable to reveal the circumstances surrounding the conflict without revealing privileged communications, is a trial judge required to grant the motion to withdraw?” Smith v. State, __ So.3d __ (Fla. 1st DCA, Nos. 1D14-5647, 1D14-5730, 2/17/2015).
Court erred in denying full evidentiary hearing to party seeking disqualification of opposing counsel. [Added 1/15/15]
Flaig moved to disqualify counsel for the opposing party, Coquina. Flaig testified and established a prima facie case for disqualification. Before any other witnesses were called, Coquina asked the court to deny the disqualification motion. At that point the trial court did so. Flaig petitioned the Fifth DCA for certiorari review. The appellate court quashed the order and remanded for a full evidentiary hearing. “[T]he the trial court erred in depriving Flaig of a full evidentiary hearing and thereby departed from the essential requirements of the law, causing material injury that cannot be remedied on appeal.” (Citations omitted.) Flaig v. Coquina Palms Homeowner’s Ass’n, Inc., __ So.3d __ (Fla.5th DCA, No. 5D14-3272, 1/2/2015), 2015 WL 24073.
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]
Former Husband was involved in post-dissolution proceedings with Former Wife. Former Husband was represented by attorney Ferrer, who also is Former Husband’s current wife. Former Wife filed a motion to hold Former Husband in contempt. Former Wife also moved to disqualify Ferrer from representing Former Husband at the contempt hearing on the ground that Ferrer would be a material witness for Former Husband. 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 trial court granted the motion to disqualify Lawyer from representing Former Husband in the post-dissolution proceedings. The Fourth DCA ruled that the disqualification order “departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings. See KMS Rest. Corp. v. Searcy, Denney, Scarola, Barnhart & Shipley P.A., 107 So.3d 552, 552 (Fla. 4th DCA 2013) (citing Graves v. Lapi, 834 So.2d 359, 360 (Fla. 4th DCA 2003), and Cerillo v. Highley, 797 So.2d 1288, 1289 (Fla. 4th DCA 2001)).”
The Fourth DCA criticized Former Wife’s counsel, Kaplan, for not citing the court to the controlling cases (KMS, Graves, Cerillo). The court took the “extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction.” Kaplan’s actions “transformed this ‘simple’ matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position.” Furthermore, Kaplan’s failure to confess error at the over-broad disqualification order “was a self-evident violation of counsel’s duty to disclosure legal authority adverse to his client’s legal position and argument” under Rule 4-3.3(a)(3).
Finally, in a footnote the appeals court chastised Ferrer’s conduct, stating that she “does not aid her husband (and client’s) case by lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court. We are stunned at Ferrer’s disrespectful, offensive, and inflammatory argument directed at the trial judge.” Citing rules regarding competence (Rule 4-1.1) and exercising independent professional judgment in rendering candid advice, the court observed that a lawyer “who is too personally involved with the issues in a litigation should consider withdrawing or risk violating ethical duties owed to the client.” Lieberman v. Lieberman, __ So.3d __ (Fla. 4th DCA, No. 4D14-509, 11/26/2014).
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]
Lawyer represented criminal Defendant accused of murder. Shortly after the murder, Defendant visited an acquaintance and allegedly tried to convince the acquaintance to provide a false alibi for him. The state later issued an “investigative” subpoena to the acquaintance’s counsel, seeking to talk with him about conversations he had about Defendant with “somebody besides his client.” Lawyer believed that the investigation was directed at her.
Lawyer moved to disqualify the state attorney’s office or, alternatively, to exclude the acquaintance as a witness in the prosecution of Defendant. She also filed a “motion to Disclose Alleged Criminal Investigation.” On the morning of jury selection in Defendant’s case, Lawyer reminded the trial court that the motions were pending. The court denied the motions without holding an evidentiary hearing. Defendant was tried and convicted.
Defendant appealed, contending that his Sixth Amendment right to counsel had been violated. “He asserts that upon [Lawyer]’s notification and request for hearing, the trial court was required to permit an inquiry to determine whether a conflict of interest existed.”
The Fourth DCA agreed and reversed. Defendant did not waive his right to conflict-free counsel, and in any event the record established that Defendant “was not provided with the pertinent information to which he was fundamentally entitled.”
The court then stressed “the need for trial courts to take substantive action when this type of potential conflict is brought to” their attention. The court quoted the following portion of the Comment to Rule of Professional Conduct 4-1.7: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person, or from the lawyer’s own interests.”
In view of this language, the court roundly rejected the state’s contention that “there was no evidence of an actual conflict” because it had suspended the investigation of Lawyer at the time of Defendant’s trial. (Emphasis by court.) “At the risk of being redundant, we once again emphatically state that when a pretrial disclosure of a possible conflict of interest is raised, ‘the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant’s [Sixth Amendment right] or appoint separate counsel.’ Lee [v. State] , 690 So.2d  at 667 [(Fla. 1st DCA 1997)], citing Holloway [v. Arkansas] , 435 U.S.  at 484 [(1980)].” Rutledge v. State, __ So.3d __ (Fla. 4th DCA, No. 4D10-5022, 10/29/2014), 2014 WL 5460628.
Partner of lawyer representing party may not serve as “disinterested” appraiser under insurance policy. [Added 9/29/14]
Insured homeowners sued their insurance company for breach of contract after the insurer denied the insureds’ claim for a sinkhole loss. The insurer became insolvent and the Florida Insurance Guaranty Association (“FIGA”) was substituted in the action. The insureds moved to compel appraisal pursuant to a policy provision. FIGA objected. After the trial court ordered appraisal, FIGA appealed.
FIGA argued, among other things, that the appraisal order should be reversed because the trial court appointed a partner of the lawyer representing the insureds as one of the appraisers. FIGA contended that the partner was not “disinterested” as required by the policy. The Fifth DCA agreed and reversed. “The policy provision, which requires a ‘disinterested appraiser,’ expresses the parties’ clear intention to restrict appraisers to people who are, in fact, disinterested. Given the duty of loyalty owed by an attorney to a client, we conclude that attorneys may not serve as their clients’ arbitrators or appraisers when ‘disinterested’ arbitrators or appraisers are bargained for.” (Footnote omitted.) Florida Ins. Guaranty Ass’n v. Branco, __ So.3d __ (Fla. 5th DCA, No. 5D13-2929, 9/19/2014).
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, __ So.3d __ (Fla., No. SC12-988, 3/27/2014).
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., SC12-2234, 3/27/2014).
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., SC12-2234, 3/27/2014).
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]
The First DCA opened its opinion reversing a disqualification order that was improperly limited in its scope by stating: “Changing horses in midstream, cautioned President Lincoln, is a bad idea. Switching clients in midstream is equally ill-advised, resulting in attorney disqualification.” (Footnote omitted.)
In a personal injury auto accident case, plaintiff Botchey sued defendants Rombola (vehicle driver) and Hernandez (vehicle owner, and Rombola’s mother) (collectively referred to as “Rombola”). Botchey was represented by attorney Block of the Law Offices of Eric S. Block, P.A. Rombola was represented by attorneys Winicki and Ahmed of the Kubicki Draper, P.A., law firm. Botchey obtained a jury verdict of $1.2 million. Rombola filed a post-trial motion for new trial and remittitur. Winicki and Ahmed were on the signature block, with Winicki signing.
Two months later Ahmed left Kubicki Draper and joined Block’s law firm, apparently making the Block firm a two-lawyer firm. “Despite the obvious conflict of interest that Ahmed’s new employment had caused, the Block firm undertook no steps to ameliorate the problem, such as getting a waiver from Rombola or instituting safeguards to prevent the use or sharing of confidential information gleaned from Ahmed’s representation of Rombola in the same case.” Rombola moved to disqualify the Block firm.
Although the Block firm did not respond to the disqualification motion, it filed a response to the pending post-trial motions. Ahmed was listed as attorney of record for Botchey. The First DCA observed that this filing “created the anomaly of Ahmed now being counsel of record for both sides in the litigation, his name appearing on both the defense’s post-trial motions and the plaintiff’s post-trial response.”
The trial court issued a show cause order on the disqualification motion. With its response the Block firm submitted a proposed order that would disqualify the Block firm only from “any further representation of this Plaintiff, regarding any further issues at the trial level regarding the trial of this case.” (Emphasis added.) The court entered that order.
Rombola petitioned the First DCA for a writ of certiorari, contending that the Block firm should be completely disqualified from any aspect of the case. The appellate court agreed and concluded that the Block firm should be disqualified from all aspects of the case, including post-trial matters.
The court’s opinion contained strong language regarding the protection of client interests in this type of situation. The Botchey-Rombola suit “is a single, indivisible case to which the ethical obligations of [conflict of interest] rules 4-1.9 and 4-1.10 continually attach.” (Footnote and citation omitted.) As a result, a lawyer’s duties of loyalty and confidentiality “do not change or become divisible as a case moves from pre-lawsuit discussions, to a lawsuit’s filing, through pre-trial activities and trial, and on to post-judgment and appeals; they remain inviolate absent client consent or such other lawful basis for waiver.” (Footnote omitted.)
The court rejected Botchey’ contention that any harm to Rombola as a result of Ahmed’s side-switching was speculative. “[T]his is a real case, with real clients, not a moot court competition. As Rombola points out, the harm that was caused in this case – and that continues without a full disqualification order – is material because ‘the obligation of an attorney to preserve the confidences and secrets of a client lies at the very foundation of the attorney-client relationship’ that is universally recognized in American jurisprudence.” (Citation omitted.) Actual use or disclosure of confidential information was immaterial in the court’s view; “what matters is that the change in representation was nonconsensual and that confidential information was in immediate need of ongoing protection.” 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).