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 ___, 35 Fla.L.Weekly D1632 (Fla. 3d DCA, No. 3D10-726, 7/21/2010), 2010 WL 2836599.

Trial court erred by ordering lawyer's disqualification after appeal had been filed.  [Added 7/24/10]

    Lawyer represented Kluck in a litigated matter.  Kluck's opponent filed a motion to disqualify Lawyer.  The motion was heard after Kluck had appealed an order in the case.  The trial court granted the motion and disqualified Lawyer.  Seeking to quash the disqualification order, Kluck petitioned the Fifth DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the disqualification order.  "The trial court lost jurisdiction when the notice of appeal was filed, and the order of disqualification entered during the pendency of the appeal was a nullity.  See Holmes Reg'l Med. Ctr., Inc. v. Rose, 721 So.2d 764 (Fla. 5th DCA 1988)."  Kluck v. Cloninger, __ So.3d ___, 35 Fla.L.Weekly D1641 (Fla. 5th DCA, No. 5D10-373, 7/23/2010), 2010 WL 2867101.

First DCA clarifies that Department of Revenue lawyers represent Department, not parent, in child support actions.  [Added 7/19/10]

    Father was obligated to make child support payments to the Department of Revenue because his former wife ("Mother") was receiving public assistance.  In 2007 the Department, through its lawyers, filed a contempt proceeding against Father.  The action was dismissed at Mother's request.  In 2008 the Department filed a petition to recalculate Father's future support obligations as a result of a significant reduction in Father's income.  Mother then "asked the court to prohibit the department from representing the father, based upon a conflict of interest, because the department had previously filed the action against the father on her behalf."  Without an evidentiary hearing, the court "granted the mother’s motion and prohibited the department from representing him, finding that the father was in arrears in paying child support and it would be inequitable to allow the department to represent him against the mother, and that the department’s efforts should be directed at enforcement of the existing support order.  The court directed the father to retain private counsel or proceed pro se."  Seeking to quash the order, the Department petitioned the First DCA for a writ of certiorari.

    The appellate court granted the petition.  "The court may have concluded that the department’s action seeking downward modification was inequitable because the previous action seeking child support for the mother from the father created a conflict of interest.  According to state statutes and rules, however, the department’s counsel represents the department and does not represent either parent, so there is no conflict."  In a footnote, the court cited Fla. Stat. sec. 409.2564(5); Fla.Stat. sec. 409.2567(2); Fla.Fam.Law R.P. 12.040(c)(2); Fla.Stat. sec. 90.502(5).  Additionally, the court noted that its conclusion was consistent with that reached in other states:  "In other jurisdictions where this issue was raised, the courts have concluded that there is no conflict of interest, because the attorney represents the agency rather than the parent and thus can take a position that benefits one parent in one action involving child support and a position that benefits the other parent in a later action."  (Citations omitted.)  Florida Dept. of Revenue v. Collingwood, __ So.3d ___, 35 Fla.L.Weekly D1513 (Fla. 1st DCA, No. 1D09-5305, 7/7/2010), 2010 WL 2671806.

Trial court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict.  [Added 7/8/10]

    The Public Defender for the Eleventh Judicial Circuit of Florida ("PD11") moved to withdraw from representation of a criminal defendant, Bowens, alleging that the "excessive caseload of Assistant Public Defender Jay Kolsky ['Kolsky'] prevents him from diligently and competently representing the defendant."  Defendant "asserted that the conflict of interest created by Kolsky's excessive caseload will result in unavoidable prejudice where there is a substantial risk that Kolsky's representation will be materially limited by his responsibilities to other clients."

    After an evidentiary hearing the trial court granted PD11's motion to withdraw but rejected PD11's motion to declare unconstitutional Fla.Stat. sec. 27.5303(1)(d) (2007), which provides:  "In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel."  The State petitioned for a writ of certiorari to quash the order granting the motion to withdraw, and PD11 cross-petitioned the order denying its constitutional challenge to the statute.

    The Third DCA quashed the disqualification order but upheld the order regarding the constitutionality of Fla.Stat. sec. 27.5303(1)(d).

    Citing its decision in State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), the court reiterated that a determination on a motion to withdraw must be made on a case-by-case bas, considering whether counsel is sufficiently competent.  Neither the statute nor the decision in State v. Public Defender preclude the granting of a motion to withdraw "upon determination of actual prejudice to a defendant's constitutional rights."  (Emphasis by court.)  In the instant case, however, the appellate court concluded that "there was no evidence of actual or imminent prejudice to Bowens’ constitutional rights.  If the trial court’s order stands, all that the PD11 must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the  client’s speedy trial rights.  This 'prejudice' is not the type of prejudice that this Court referred to in State v. Public Defender.  Prejudice means there must be a real potential for damage to a constitutional right, such as effective assistance of counsel or the right to call a witness, or that a witness might be lost if not immediately investigated.  And this is the critical fact – the PD11 has not made any showing of individualized prejudice or conflict separate from that which arises out of an excessive caseload.  Neither the PD11 nor the trial court has demonstrated that there was something substantial or material that Kolsky has or will be compelled to refrain from doing.  The prejudice is speculative and the plain language of the statute defeats this particular case."  State v. Bowens, __ So.3d ___, 35 Fla.L.Weekly D1475 (Fla. 3d DCA, No. 3D09-3023, 7/7/2010), 2010 WL 2670839.

In conflict of interest case, Florida Supreme Court imposes harsher disciplinary sanction than that recommended by referee.  [Added 6/10/10]

    Lawyer represented a client in connection with a federal regulatory matter in which orders were entered prohibiting the client from engaging in certain activities.  Three years later, the client secured a potential investor in a new venture.  The potential investor was unaware of the client's prior regulatory background or criminal history.  When asked by the potential investor about the client, Lawyer "made statements to the effect that [the client] was 'an honest man.'"  Lawyer represented the client in the business negotiations with the potential investor.

    Eventually the two individuals went into business, with Lawyer now representing the business entity.  Things began to unravel and various legal actions ensued.  At various times Lawyer represented the client, the investor, the business entity, and other investors who had potential claims adverse to the business or the principals.  Lawyer was disqualified from several of the suits because he was representing or had represented clients whose interests were in conflict.

    The Bar brought disciplinary charges against Lawyer.  The referee found him guilty of multiple rule violations, including Rule 4-1.7 (the current client conflict of interest rule) and Rule 4-1.9 (the former client conflict rule).  The referee recommended an 18-month suspension.  Both Lawyer and the Bar requested Supreme Court review.

    The Court agreed that Lawyer was guilty of the rules violations, but disagreed with the recommended sanction.  The Court suspended Lawyer for 3 years, commenting that under the Florida Standards for Imposing Lawyer Sanctions Lawyer's conduct "comes close to that dividing line" between suspension and disbarment.  In determining the term of suspension, the Court referred to Florida Bar v. Feige, 596 So.2d 433 (Fla. 1992).

    The Court briefly addressed one unique argument presented by Lawyer.  He contended that his "duty to protect the public took precedence over his duty to maintain client confidentiality or to decline the representation of a client where a conflict of interest exists or is likely to arise."  The Court gave no credence to this contention, stating:  "We reject [Lawyer]'s argument that it was permissible for him to represent the [entity's] investors despite the conflicts presented by his representation under some kind of duty-to-the-public exception.  No such exception exists."  Lawyer should have referred them to conflict-free counsel.  Florida Bar v. Scott, __ So.3d ___, 35 Fla.L.Weekly S333 (Fla., No. SC05-1145, 6/10/2010), 2010 WL 2301701.

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]

    A 2-lawyer Law Firm represented an Estate in a wrongful death suit on a contingent fee basis.  The suit became a major undertaking for the firm.  Law Firm retained a trial and jury consultant ("TSI") to assist with preparation of the case.  (TSI's work "look[ed] like the product of a paralegal or young associate attorney.")  Neither Law Firm nor the Estate had a written contract with TSI.  Although for a while Law Firm paid TSI a monthly retainer, at some point it stopped paying.  TSI sued the Estate, alleging that it was owed more than $1.2 million in unpaid fees.  Law Firm, along with co-counsel, defended the Estate in the suit.  The trial court "found that 'there is no dispute that the parties through their agents entered into an oral agreement for [TSI] to provide jury consulting and other services'" and entered judgment for TSI in the amount of approximately $73,000.  The Estate appealed.

    The Second DCA affirmed, but in doing so stated:  "Our affirmance, however, should not prevent the Estate from seeking other remedies, including reimbursement of this amount from [Law Firm] under the contingency fee agreement between them."

    The appellate court was compelled to reject an argument that was "improperly presented" to it -- the argument that an oral contract did not exist between the Estate and TSI, but rather between Law Firm (or one of its lawyers) and TSI.  The court commented that there was "considerable merit to this argument."  The court stated:  "[Law Firm], in its capacity as attorneys for the Estate, never pleaded that the oral contract was a contract only between the law firm and TSI.  The conflict that has existed at all times between the Estate and its lawyers in this adversary proceeding is palpable, but we cannot conclude that the conflict creates fundamental error as to the judgment in favor of TSI."

    The court went on to discuss the nature of the conflict and the potential remedy available to the Estate.  If the amount and appropriateness of TSI's fee was raised by the Estate in a fee dispute with Law Firm under Rule 4-1.5 of the Rules of Professional Conduct, "the Estate could have made many arguments that have not been made in this case.  The most obvious argument available for the Estate would be that the 'trial consultant' services were little or nothing more than the type of work that [Law Firm] had agreed to perform on a contingency and that the services of TSI merely shifted work the law firm should have performed under its contingency agreement into 'costs' over and above those fees.  This is an argument that would involve not merely the $72,926.06 judgment, but the entire $232,926.06 paid to TSI."  Liebreich v. Trial Strategies, Inc., __ So.3d ___, 35 Fla.L.Weekly D1094 (Fla. 2d DCA, No. 2D08-2866, 5/14/2010), 2010 WL 1927138.

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]

    Lawyers represented Appellant in a workers' compensation case.  Lawyers appealed a non-appealable order of the Judge of Compensation Claims ("JCC") (the order "was neither a final order nor a non-final appealable order").  The appeal was dismissed by the First DCA for lack of jurisdiction.  The appellate court then ordered Lawyers to show cause why sanctions should not be imposed.  "Because Appellant’s attorneys’ response to this court’s show cause order continues to evince ignorance of the rules of appellate procedure and case law, attorneys’ fees pursuant to section 57.105, Florida Statutes (2009), are hereby imposed against Appellant’s attorneys and Appellant.  Because section 57.105 does not authorize the exclusion of Appellant from the responsibility to pay a portion of the fee, on remand for determination of a reasonable fee, the JCC should also determine whether Appellant should be afforded an opportunity to obtain conflict-free counsel."  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]

    A trial court entered an order awarding attorney's fees and costs against a party and her lawyer pursuant to F.S. 57.105 (2005).  Lawyer and Client, represented by Lawyer, appealed.  The Fifth DCA affirmed per curiam.

    One judge wrote a concurring opinion that pointed out a potential conflict of interest problem.  "I write to express my concern regarding the conflict of interest issues created by the fact that [Lawyer]'s law firm is representing both [Client] and [Lawyer] in this appeal.  In the initial brief filed in this matter [Lawyer] argued, inter alia, that it was error for the trial court to sanction her by directing her to pay half of [the opposing party]'s attorney's fees.  If [Lawyer] had been successful in arguing that point, [Client] could have been responsible for paying twice as much in attorney's fees.  It is disturbing that [Lawyer]'s firm, while purporting to represent [Client]'s interests, sought a reversal of a trial court ruling which, as a consequence, could have resulted in an assessment against [Client] of twice as much liability.  See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); R. Regulating Fla. Bar 4-1.7."  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]

    Plaintiff, a limited liability company, brought an action against Defendant seeking rescission of a condominium unit sale.  Plaintiff moved to disqualify Defendant's law firm "on the grounds that the law firm had previously personally represented one of the principals of the plaintiff LLC in unrelated matters."  The trial court granted the motion and disqualified Defendant's law firm.  Defendant petitioned the Third DCA for a writ of certiorari.

    The appellate court granted the writ and quashed the disqualification order.  "Without exploring any other infirmity in the order, the simple, acknowledged fact that counsel did not represent the plaintiff itself and thus cannot be in forbidden conflict with its interests renders the order completely unsupportable.  Gonzalez v. Chillura, 892 So.2d 1075 (Fla. 2d DCA 2004) (finding that attorney’s representation of a shareholder in a derivative suit did not create an attorney-client relationship between the attorney or his law firm and the corporation and therefore, did not establish a basis for conflict in the shareholder’s subsequent direct actions against the corporation); Anderson Trucking Serv., Inc. v. Gibson, 884 So.2d 1046, 1048 (Fla. 5th DCA 2004) ('One seeking to disqualify opposing counsel [is] required to show that … an attorney/client relationship existed….') (citing State Farm Mutual Auto. Ins. Co. v. K.A.W., 575 So.2d 630, 634 (Fla. 1991)); State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986) ('The burden of establishing the existence of an attorney-client relationship rests with the claimant.')."  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]

    Lawyer was in charge of the investigative unit of the statewide prosecutor's office in Broward County.  While Lawyer was in that position, the office apparently investigated Defendant's activities.  Four years after Lawyer left the statewide prosecutor's office, Defendant was charged.  Lawyer now represents Defendant in defending those charges.

    The state moved to disqualify Lawyer, asserting that Lawyer "had substantial participation in this case as a prosecutor."  The trial court denied the motion, finding after an evidentiary hearing that Lawyer did not have substantial participation in the case while with the prosecutor's office.  "[Lawyer] had limited involvement as a prosecutor regarding a co-defendant’s bond hearing in another case; names of some witnesses in the current case appeared in notes she took during staff meetings, but with no information related to the present cases; she represented the state at a hearing when two witnesses entered pleas; and she sat in for another prosecutor at a meeting with law enforcement regarding a co-defendant who could become a state witness."

    The state also was unsuccessful in its contention that Lawyer should be disqualified for a "playbook" reason, "because because her employment with the task force gave her insight on the state’s strategy and position."  The state, however, "did not point to any specific strategic insight or confidential information [Lawyer] would have."

    The state petitioned for a writ of certiorari.  The Fourth DCA denied the petition.

    The appellate court observed that "[a]lthough the state has cited civil cases supporting its contention that disqualification is necessary, the test for disqualification of counsel in a civil case does not apply in a criminal case where the defendant’s Sixth Amendment rights are involved."  (Citations omitted.)  The court explained:  "Although there is a presumption in favor of the defendant’s choice of counsel, the presumption may be overcome if the there is a showing of an actual conflict or 'serious potential for conflict.'  Wheat v. United States, 486 U.S. 153, 164 (1988); see also United States v. Ross, 33 F.3d 1507, 1522-23 (11th Cir. 1994).  In moving for disqualification of counsel, the state has the burden of overcoming this presumption.  See State v. Ehlers, 631 N.W.2d 471, 481 (Neb. 2001) (concluding the trial court erred in applying presumptions in favor of disqualification that apply in civil cases to disqualification of chosen counsel in a criminal case and concluding the burden of proof should be on the state)."  In the instant case, "the trial court conducted an evidentiary hearing and determined that [Lawyer] had not obtained confidential information nor had the state proved that her work with the government four years earlier would provide her with an advantage in this case."  Disqualification was properly denied.  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, which provides:  "A lawyer who has formerly served as a public officer or employee of the government:  (1) is subject to rule 4-1.9(b); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation."

Law firm disqualified based on unfair informational or tactical advantage obtained through receipt of opposing party's privileged materials.  [Added 2/12/10]

    Mother and Father were opposing parties in contentious paternity litigation.  Mother came into possession of a USB flash drive belonging to Father.  The drive contained "the electronic equivalent of thousands of pages of documents and communications" that included attorney-client communications between Father and his lawyer, attorney-client work product, and confidential medical, financial, and business information relating to Father.  After "illegally obtain[ing]" the flash drive, Mother took it to Law Firm.  Law Firm spent "in excess of 100 hours reviewing its contents 'although it was apparent within moments of inspection that it belonged to the Father and contained attorney/client communications with the Father's current counsel . . ., as well as a complete history and chronology of strategy, work product, and confidential communications spanning the near decade-long period of this litigation.'"

    Father moved to disqualify Mother's Law Firm.  The trial court granted the motion, in addition to ordering other things such as return of the flash drive and any copies of the documents, removal of the information from Law Firm's and Mother's computers, and so forth.  Mother petitioned the Fifth DCA for a writ of certiorari, seeking to quash the disqualification order.  Mother contended that the remedies short of disqualification ordered by the trial court were sufficient.

    The appellate court denied the petition.  "While recognizing that disqualification of a party's chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel.  . . .  Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother."  (Citations omitted.)

    The court concluded with a cautionary point:  "For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission [sic] on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue.  If the client refuses to consent to disclosure, the attorney must withdraw from further representation.  Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1."  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]

    In a dissolution of marriage case, Husband moved to disqualify Wife's counsel.  Husband alleged that Wife "hacked" into his email account and obtained a message from Husband to his lawyer.  Wife's sister sent the email to Wife's lawyer, who "recognized that the e-mail was an attorney-client communication, and sent the husband’s attorney a letter returning the email."  Nevertheless, Husband moved to disqualify Wife's lawyer on the basis that Wife allegedly obtained an unfair advantage justifying disqualification.

    The trial court held an evidentiary hearing on the motion.  After opening arguments, Husband presented evidence.  Wife's counsel pointed out that the court had not allowed the Wife to present evidence regarding how she obtained the email.  The court never allowed testimony on the issue and issued its ruling.  "The court responded that it did not know whether the wife’s testimony would make a difference.  The court explained that, even if it accepted the wife’s argument that the husband failed to protect the e-mail, the harm occurred when the wife had the email forwarded to her attorney.  The court then found that the only remedy was to grant the motion disqualifying the wife’s attorneys."  Seeking to quash the order, Wife petitioned the Fourth DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the order, agreeing that Wife did not receive due process.  "The wife’s evidence may have been relevant to her argument that the husband failed to treat the e-mail as confidential and waived any privilege claim over it.  . . .  The wife’s evidence also may have been relevant to whether the wife acted in bad faith in discovering and forwarding the e-mail.  . . .  Even if the wife’s evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony.  . . .  Thus, it is necessary to grant the wife’s petition, quash the order disqualifying her counsel, and remand for continuation of the hearing, at which the wife may present her evidence."  (Citations omitted.)

    The court also commented on other non-dispositive grounds raised by Wife "as they may repeat themselves on remand."  On remand, the trial court "should determine whether the husband treated the e-mail as confidential and, if so, whether the wife gained an unfair advantage in discovering it and having it forwarded to her attorney.  If the court determines that the wife gained an unfair advantage, then disqualification of the wife’s attorneys may be appropriate.  Regardless of whether the wife gained an unfair advantage, however, disqualification and other sanctions still may be appropriate under the 'inequitable conduct doctrine' if the court finds that the wife, in bad faith, discovered the e-mail and had it forwarded to her attorney.  If disqualification is not appropriate, the court can consider lesser remedies, such as precluding any discovery based on the e-mail’s contents, precluding the use of the email at trial, or both."  (Footnote omitted.)  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]

    Claimant filed petitions for workers' compensation benefits against both Lincoln/Guarantee and Wentworth/Summit.  Each denied responsibility, with Lincoln/Guarantee alleging that Claimant was a borrowed servant of Wentworth and Wentworth/Summit alleging that Claimant was an employee of Lincoln.  Law Firm represented Wentworth/Summit.  About two months before the final hearing, Guarantee retained Law Firm "to participate in an audit of Lincoln to determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln."  When Lincoln/Guarantee's lawyer learned that Law Firm was representing Guarantee, he moved to disqualify Law Firm from representing Wentworth/Summit in the workers' compensation case.  The Judge of Compensation Claims ("JCC") denied the motion, ruling that there was no material conflict.  Lincoln/Guarantee petitioned the First DCA for a writ of certiorari.

    The First DCA granted the petition and vacated the order denying disqualification.  "Rule Regulating the Florida Bar 4-1.7 forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record.  To disqualify a law firm from concurrently representing a  party whose interests are adverse, a client need only show that an attorney/client relationship exists."  Law Firm conceded that it represented both Lincoln/Guarantee and Wentworth/Summit at the same time.  "[T]he JCC erred in finding that the conflict had to be material.  Rule 4-1.7 leaves no room for a 'materiality' analysis.  When [Law Firm] failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify."

    The appellate court quoted the explanation of Fifth DCA in Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004), that Rule 4-1.7 is "based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship.  . . .  Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession."  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).

Florida 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).

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; 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 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).)