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Court departed from essential requirements of law in granting motion to disqualify law firm. [Added 7/28/10] Zayas-Bazan filed suit against a corporation and two of its officers and directors, Marcelin and Alvarez. Zayas-Bazan was a shareholder of the corporation, Forex Consulting. More than 2 1/2 years after filing suit, Marcelin and Alvarez moved to disqualify Zayas-Bazan's counsel, the Carroll Law Firm ("Carroll"). The motion was based on Rule 4-1.9, Florida Rules of Professional Conduct, and alleged that Carroll previously represented the corporation in matters that were substantially related to Zayas-Bazan's suit. The trial court held a hearing on the motion to disqualify. At the hearing, Zayas-Bazan argued that his opponents "waived their right to seek disqualification because they knew of the facts leading to the filing of their motion to disqualify since the lawsuit was filed, and the delay in filing the motion to disqualify was extremely prejudicial to Zayas-Bazan." The court granted the motion to disqualify, but its order did not address the waiver issue. Zayas-Bazan petitioned the Third DCA for a writ of certiorari. The appellate court granted the petition and quashed the disqualification order. The court stated: "[I]t is undisputed that Alvarez and Marcelin had actual knowledge of the facts leading to the claimed conflict prior to Zayas-Bazan filing the underlying lawsuit, but did not move to disqualify Zayas-Bazan’s counsel for more than two-and-one-half years after the lawsuit was filed. Alvarez and Marcelin suggest that they did not waive their right to move to disqualify Zayas-Bazan’s chosen attorney – the Carroll Law Firm – because they requested their previous attorneys to file a motion to disqualify the Carroll Law Firm, but their attorneys failed to do so. There is nothing in the record to substantiate this claim nor anything in the record to suggest that Marcelin and Alvarez discharged prior counsel due to their failure to file a motion disqualify. Rather, the record reflects that Marcelin and Alvarez’s first attorney was disqualified based on a motion filed by Zayas-Bazan, and their second attorney withdrew in March 2009 after Alvarez and Marcelin’s retainer was depleted. Further, from April 2, 2007, when Zayas-Bazan filed the action, through March 2009, when the second attorney was discharged, Marcelin and Alvarez knew that the Carroll Law Firm represented Zayas-Bazan, but did not seek to discharge either attorney for failing to file the motion to disqualify. More importantly, even after the trial court permitted Marcelin and Alvarez’s second attorney to withdraw in March 2009, they waited more than eight months before filing the motion to disqualify Zayas-Bazan’s counsel. Also, during the entire two-and-one-half-year period that the Carroll Law Firm represented Zayas-Bazan, Marcelin and Alvarez did not once notify Carroll or the Carroll Law Firm that they believed that an attorney-client relationship existed between the Carroll Law Firm and Forex Consulting. . . . [Citation omitted.] Instead, Marcelin and Alvarez permitted the Carroll Law Firm to spend substantial time in prosecuting Zayas-Bazan’s claims without objecting to its representation of Zayas-Bazan or filing a motion to disqualify." The trial court "departed from the essential requirements of law by not concluding that Marcelin and Alvarez waived their right to seek disqualification, and in granting their motion to disqualify the Carroll Law Firm." Zayas-Bazan v. Marcelin, __ So.3d ___ (Fla. 3d DCA, No. 3D10-726, 7/21/2010). |
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