sunEthics

F.S. 57.105 attorney's fees assessed against lawyer and clients for filing disqualification motion as "litigation tactic"  [Added 8/13/08]

    Lawyer represented Movants in protracted litigation that began in November 2001.  Movants' opponent was represented by the law firm of "B&C."  One of B&C's attorney's Palma, had represented Movants on estate planning matters from 1999 until June 2001.  In 2007, Movants filed a motion to disqualify B&C and its attorneys who were working on the litigation (Palma was not involved in the litigation).  Movants asserted that they were current clients of B&C and had been since 1999, and argued that disqualification of B&C was therefore warranted under Florida Rules of Professional Conduct 4-1.7 (current client conflicts) and 4-1.10 (imputed disqualification).

    The trial court denied the disqualification motion, finding that Movants were former clients of B&C, rather than current clients.  The court's ruling, however, was based not on Movants status as current or former clients but on waiver.  "Because [Movants] did not move to disqualify [B&C] until 2007, and because it would have greatly prejudiced [Movants' opponent] to remove the firm that had been representing her for six years, the trial court ruled that [Movants] had waived any claim regarding a purported conflict of interest.  The [trial] court found it unnecessary to reach the disputed factual issue of whether [Movants] had consented to the dual representation."  Movants did not seek an evidentiary hearing to establish the material facts and did not object to the trial court's factual conclusions.

    Movants petitioned the First DCA for a writ of certiorari.  Not only did the appellate court deny the petition, it issued an order to show cause why attorney's fees should not be imposed against Movants and Lawyer under Fla.Stat. sec. 57.105(1) (2007).  The court imposed the attorney's fees sanction and explained its ruling in a written opinion.  The court noted that disqualification is an extraordinary remedy that must be sought with reasonable promptness, observed that such motions are often viewed with skepticism because they can be filed for tactical purposes, and stated:  "We believe [Movants'] motion, and certainly this petition for writ of certiorari, were filed as just such a litigation tactic."

    The court concluded that Movants' "assertion that they were current clients was baseless and not supported by the material facts or applicable law. Additionally, based on the undisputed facts, Petitioners had no legal cause to seek disqualification as former clients.  See rule 4-1.9, Fla.R.Prof.Conduct; Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004)."  B&C had done no work on Movants' estate plan since 2001.  Movants' argument regarding current client status was based primarily on 2 cover letters from a B&C paralegal in 2004 and a paralegal's bill for minor changes to their estate file in 2007.  The court concluded that "[n]one of these acts indicated a continuing legal representation, but rather they were ministerial tasks performed to update the completed estate planning documents.  This ministerial work does not meet the definition of the 'continuous representation rule.'  See Hampton v. Payne, 600 So.2d 1144, 1146 (Fla. 3d DCA 1992)."  Movants were former clients of B&C when they filed their disqualification motion, and furthermore Movants "never sought an evidentiary hearing to establish a factual basis to support their purely subjective claim that they were current clients of" B&C.

    Additionally, the trial court correctly ruled that Movants had waived any conflict by waiting 5 years after the litigation began to seek B&C's disqualification.

    Under Fla.Stat. sec. 57.105, a court "shall" award attorney's fees as a sanction where a party has asserted a claim unsupported by material facts or by the law applicable to the material facts.  The court imposed fees against Movants and Lawyer in equal parts.  Movants' claim that they did not know that their opponent had been represented by B&C since 2001 was "unworthy of credence."  The court also concluded that Lawyer's factual assertions in this regard were not credible.  "It is not enough for counsel to assert that he 'vetted' his clients’ representation of the facts.  To avoid liability, counsel must make an objectively reasonable investigation of the purported facts supporting a claim."  Here, such an investigation would have made it "inescapable" that Lawyer would have known.  Yang Enterprises, Inc. v. Georgalis, ___ So.2d ___ (Fla. 1st DCA, No. 1D07-6479, 8/7/2008).

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University's Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2008