Fourth DCA quashes order disqualifying lawyer from opposing former client; matters not "substantially related"  [Added 7/15/08]

    Plaintiff sued her Son, the Son's Wife, and Corporation.  These Defendants were represented in the litigation by Lawyer.  Lawyer "had long represented both the corporation and individual family members."  Plaintiff moved to disqualify Lawyer on the ground that "he previously had represented her, her husband [], and the corporation on legal matters, both in court and outside of court."  The trial court granted the disqualification motion.  Defendants petitioned the Fourth DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the disqualification order.  The trial court had based the disqualification on Rule 4-1.9, Florida Rules of Professional Conduct.  The appellate court focused on subdivision (a) of Rule 4-1.9, which prohibits a lawyer from opposing a former client "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" (emphasis by court).

    Lawyer had represented Plaintiff in connection with the business of Corporation while Plaintiff was one of its owners.  Plaintiff sold Corporation to Son and Son's Wife in 1997; she was no longer involved in management of the business, but remained a shareholder of Corporation until the purchase price was fully paid in 2003.  Defendants denied that Lawyer had any involvement in the transaction through which Corporation was sold.  After 1997 Lawyer represented Plaintiff in some personal collection matters, the last of which was "sometime in 2000-2002, when [Lawyer] advised her in connection with a matter that resulted in her obtaining a judgment in small claims court, though he did not represent her there.  That was [Plaintiff's] only involvement with [Lawyer] within the previous five years."

    The appellate court did not view these matters as "substantially related" to the instant suit.  The court quoted from the recently amended Comment to Rule 4-1.9 concerning the meaning of "substantially related."  The court summarized:  "Plaintiff made no showing at the evidentiary hearing that [Lawyer]’s representation of her and her husband while they were running the corporation, and his representation of her on personal matters thereafter, was 'substantially related' to, or even had anything to do with, the matters that are the subject of the instant lawsuit.  There was no testimony indicating [Lawyer]’s prior representation of Plaintiff was involved in any way with Plaintiff’s allegedly advancing funds toward the construction of [Son] and [Son's Wife]’s residence, or with the lease pursuant to which Plaintiff rented her warehouse to the corporation."  Consequently, the trial court departed from the essential requirements of law in disqualifying Lawyer.  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]

    An event planning business ("TEF") was organized as an LLC with 3 members.  Law Firm had represented TEF in preparing organizational documents and in defending an unrelated suit.  Represented by Law Firm, TEF sued one of its members, Augustin.  Augustin moved to disqualify TEF.  The trial court entered an order disqualifying Law Firm without first holding an evidentiary hearing.  TEF petitioned the Third DCA for a writ of certiorari.

    The Third DCA granted the petition and reversed the disqualification order.  "Where disqualification is based on a conflict of interest between clients, the trial court must first determine whether an attorney-client relationship exists or existed between the non-moving party and the challenged attorney."  This requires an evidentiary hearing if material facts are in dispute.  "Here, there was a clear dispute as to whether the attorneys represented Augustin.  TEF claimed the attorneys represented only the business.  Augustin alleged that he was led to believe otherwise.  The trial court relied on the court file and the parties’ argument, which were insufficient to resolve the attorney-client relationship dispute.  Thus, the trial court should have held an evidentiary hearing before disqualifying TEF’s counsel."  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]

    Driver and Passenger were in a vehicle that collided with a truck.  Lawyer Gold originally represented Driver and Passenger (and a third person who was in the vehicle) against the truck owner.  Gold made PIP claims against Driver's insurer, which took statements of all 3 vehicle occupants through its Special Investigations Unit ("SIU").  Gold received copies of those SIU statements.

    Subsequently Gold referred Passenger's case to Lawyer Bohannon.  Passenger, represented by Bohannon, sued Driver.  Driver moved to disqualify Bohannon.  In the motion Driver asserted 2 bases of disqualification:  (1) that Gold's conflict under Rule 1.9(a) and (b), Florida Rules of Professional Conduct, extended to Bohannon because of the alleged "agency relationship" between the two lawyers (Bohannon's law firm apparently acted as co-counsel with Gold in unrelated cases); and (2) Driver's SIU statement allegedly was included in the file given to Bohannon by Gold.  The trial court granted the motion and disqualified Bohannon.  Passenger petitioned the Fourth DCA for a writ of certiorari.

    The Fourth DCA quashed the disqualification order.  As to Driver's "agency relationship" argument, the court noted simply that by its terms Rule 4-1.9 "does not apply to Bohannon because he had never represented [Driver].  We find no legal or factual support for [Driver]’s theory of an agency relationship under which [Driver] tried to extend the rule to [Bohannon]."

    Regarding the claim that Bohannon had a copy of Driver's SIU statement, the court relied on Applied Digital Solutions, Inc. v. Vasa, 941 So.2d 404 (Fla. 4th DCA 2006), for the proposition that there is "no rule of automatic disqualification any time an attorney inadvertently obtained documents, even if privileged."  The court pointed out that "the record did not show an unfair advantage to [Passenger]" and that, furthermore, "any possibility of such an advantage could be resolved by [Driver] seeking to preclude the use of the SIU statement at trial."

    Finally, the court also rejected 2 arguments that apparently were raised for the first time in the appellate court.  Driver contended that Rule 4-1.10 imputed Gold's conflict of interest to Bohannon.  Also, Driver argued that  Bohannon was disqualified because he was partners with a lawyer who was listed as "of counsel" to Gold.  "This was not argued in the motion to disqualify either, and we find it lacking in evidentiary and legal support as grounds for disqualification of Bohannon."  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]

    Lawyer was charged by the Florida Bar with ethical violations arising from her representation of 2 individuals in a criminal case.  Spillman and Parks were together in a car that was stopped by the police.  Parks was driving.  He was charged with speeding and driving with a suspended license.  A gun was found under the tray in the car's center console, and Spillman was charged with possession of a firearm by a convicted felon.  Spillman and Parks visited Lawyer's office together and signed retainer agreements.  Spillman paid part of his fee at that time and agreed to make payments on the balance.  Lawyer then entered a notice of appearance for Parks, but arranged for another attorney to file a notice of appearance on Spillman's behalf.  Yet, Lawyer "actively represented Spillman, but failed to diligently represent him or to adequately communicate with him.  Further, [Lawyer] failed to clearly communicate to the trial court and Spillman whether she represented Parks and Spillman or just Parks.  Her actions toward Spillman were more often those of someone who did represent him rather than someone who did not.  She accepted money from Spillman, appeared in court for him, and filed official pleadings suggesting she represented him.  She never personally told Spillman that another lawyer was representing him."  (Parks also was a convicted felon, but apparently Lawyer did not know this.)

    The referee found Lawyer guilty of violating Florida Rules of Professional Conduct 4-1.3 (diligent representation), 4-1.4(a) (communication with client), and 4-8.4(c) (conduct involving misrepresentation).  The Bar also charged Lawyer with a prohibited conflict of interest (Rule 4-1.7), but the referee concluded that the Bar did not prove the conflict allegation by clear and convincing evidence.  The referee recommended that Lawyer be reprimanded.  Both the Bar and Lawyer sought review in the Florida Supreme Court.  The Bar challenged the findings on the conflict allegation and the recommended discipline.  Lawyer challenged the guilty findings on the other rule violations.

    The Supreme Court approved without much discussion the findings regarding violations of Rule 4-1.3 and Rule 4-1.4(a).  Although Lawyer argued that her misrepresentation had not been intentional, the Court disagreed.  "While it is true that in order to prove a violation of rule 4-8.4(c), the Bar must show that the misrepresentation was intentional, the intent element is satisfied by a showing that the misleading conduct was deliberate or knowing.  Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla. 2005)."  Lawyer's acts were "deliberate and knowing," and thus constituted misrepresentation for purposes of Rule 4-8.4(c).

    Turning to the conflict charge, the Court rejected the referee's not guilty finding.  "The factual circumstances leading up to Spillman’s being charged with possession of firearm by a convicted felon establish that Spillman and Parks had interests that were directly adverse.  Parks and Spillman were both in the car when it was stopped.  The firearm was concealed in the center console between them.  An obvious potential defense to the charge against Spillman would have been a showing that the firearm was in Parks’ possession, not Spillman’s."

    The Court continued:  "Parks also had an interest in not being in possession of the firearm.  Parks was also a convicted felon.  Even if he had not been, he would have had an interest in not having the possession of the firearm attributed to him."  The interests of the 2 clients were "directly adverse and [Lawyer]'s representation of both of them, to any extent whatsoever, including covering a hearing for a colleague, was improper."  The Court  further noted that the adverse interests "also made it impossible for [Lawyer] to ethically represent both Spillman and Parks because her professional judgment with regard to one or both of them was materially limited by the dual representation. She could not cast doubt on Spillman’s possession of the firearm without casting suspicion on Parks, and vice versa."

    The Court rejected the recommended discipline of a reprimand and instead suspended Lawyer for 90 days.  Florida Bar v. Brown, 978 So.2d 107 (Fla. 2008).

Florida 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.  [Added 10/17/07]  -- 

    A Defendant represented by the Public Defender's Office was convicted of capital murder.  After Defendant's motion for postconviction relief was denied by the circuit court, he appealed to the Florida Supreme Court.  Among Defendant's contentions were:  trial counsel rendered ineffective assistance by failing to withdraw from representation; trial counsel rendered ineffective assistance by failing to move for disqualification of the trial judge; and Rule 4-3.5(d)(4), Rules Regulating The Florida Bar, which prevents counsel from contacting jurors, is unconstitutional.  The Court rejected these contentions.

Defense counsel's failure to withdraw.  Defendant alleged two conflicts of interest on the part of trial counsel.

    First, Defendant alleged that "trial counsel should have withdrawn from representation because her relationship with the victim . . . posed a conflict of interest that affected counsel’s representation."  At the evidentiary hearing on Defendant's postconviction motion trial counsel testified that during high school she had a "nodding acquaintance" with the victim but that she "ran with a different crowd."  The trial court concluded that defense counsel "did not have a close friendship with" the victim.  The Supreme Court noted that, under Cuyler v. Sullivan, 446 U.S. 335 (1980), and Hunter v. State, 817 So.2d 786 (Fla. 2002), there must be an actual conflict of interest before defense counsel's representation is considered constitutionally deficient.  The Court concluded:  "We agree with the trial court that counsel’s knowledge of the victim in this case does not support a finding that there was an actual conflict of interest.  While counsel was a nodding acquaintance of the victim in high school, this does not demonstrate an actual conflict of interest."

    Second, Defendant alleged that a conflict was presented because, while the Public Defender's Office was representing him, a different lawyer in the Office was representing a key state witness in the witness's unrelated violation of probation case.  As soon as the conflict was discovered, the Office withdrew from the witness's case.  At the evidentiary hearing the trial court found that the Office did not have a conflict of interest when it continued to represent Defendant.  The Supreme Court agreed with the trial court.  "As soon as the Public Defender’s Office discovered the dual representation, the office withdrew from representing [the witness].  The Public Defender’s Office properly followed the procedure outlined in rules 4-1.7 and 4-1.16 of the Rules Regulating the Florida Bar, which state that when a conflict arises after representation has been undertaken, the lawyer should withdraw from representation.  Accordingly, the trial court properly denied relief on this claim."

Counsel's failure to seek judge's disqualification.  The trial judge knew the victim, and the judge's wife worked in the State Attorney's Office.  The judge disclosed these facts to all counsel on the record.  Defense counsel stated that she did not object to the judge presiding over the trial, and Defendant also indicated that he did not object.  On these facts, defense counsel's failure to move for the judge's disqualification did not constitute ineffective assistance of counsel.  There was neither deficient performance nor prejudice to Defendant.  See Strickland v. Washington, 466 U.S. 668 (1984).

Constitutionality of Rule 4-3.5(d)(4).  Defendant alleged that Rule 4-3.5(d)(4) "is unconstitutionally vague because it fails to put counsel on notice of what behavior is subject to disciplinary action."   The Supreme Court disagreed, noting that "[t]his Court has consistently rejected constitutional challenges to rule 4-3.5(d)(4).  See, e.g., Power v. State, 886 So.2d 952, 957 (Fla. 2004); Johnson v. State, 804 So.2d 1218 (Fla. 2001)."  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 Florida 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).

Florida Commission on Ethics advises that conflict of interest under Florida ethics laws exists when member of city commissioner's law firm represents clients before commission, but not before other city boards.  [Added 6/7/07]  --  Florida Commission on Ethics Opinion 07-13.

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. 5^th 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. 4^th 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. 4^th 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. 5^th DCA 2003).)