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Fourth DCA quashes order disqualifying lawyer from opposing former client  [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, ___ So.2d ___ (Fla. 4th DCA, No. 4D07-2274, 7/9/2008), 2008 WL 2663735.

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